RAMNIKLAL JADAVJI KANAKIA Vs. PANCHOLI DULABHAI

JUDGEMENT

(1.) This is an appeal filed by the Surpanch of village Mota Khutwada Taluka Mahuva District Bhavnagar against the order of acquittal passed by the learned Judicial Magistrate First-Class Mahuva against the original accused Nos. 1 2 & 3 who are opponents Nos. 1 2 & 3 in this appeal.

(2.) The prosecution was launched against the three accused for the offences allegedly committed in contravening the provisions of Section 93(1) and Section 94(1) clause (c) of the Gujarat Panchyats Act 1961 (Gujarat Act 6 of 1962) hereinafter referred to as the Act. The complainant who is the Sarpanch of Village Khutwada has alleged in his complaint that the original three accused had constructed shops in the village without the prior permission of the Village Panchayat and thereby contravened the provisions of Section 93 (1) of the Act. It was also alleged that over the said shops accused had constructed projections overhanging the public street and thereby encroached on the Panchayat land thus contravening the provisions of section 94(1) clause (c) of the Act.

(3.) On behalf of the prosecution the complainant Sarpanch and the Secretary of the Panchayat have been examined as witnesses. Ramniklal Kanakia P.W. 1 (Exh. 12) the complainant who is also the Sarpanch of the Panchayat has admitted in his deposition that the Panchayat has not framed any bye-laws and that there are no building regulations. He has also admitted that many houses have been built in the village and that no one has been prosecuted for having built a house without the prior permission of the panchayat. Moolshankar Mohanlal Joshi Secretary (Mantri) of the Panchayat is examined as P.W.2 (Exh. 14) as the witness. He has admitted that whenever an application for construction is made to the Panchayat it has been granted; no application has ever been rejected. Moreover he has stated that the street on which the said shops have been constructed is not measured and therefore there is only a suspicion that the balcony of the projection over the shops may be encroaching on the Panchayat land. There is nothing on the record to show that the said projection is on the public street or that there is any encroachment by the accused.