MAHESHBHAI R PATEL Vs. PALSANA GRAM PANCHAYAT

JUDGEMENT

(1.) Heard learned counsel for the parties. Petitioner's case is that they were keeping their movable articles for household use adjacent to back wall of their house at village Palsana and they were ordered to remove the same as it was causing obstruction on the street. The same was challenged before the appellate authority inter alia on the ground that while Panchayat has not taken any action to remove the pucca construction made on the other side of the street by occupants of the house adjacent to that pucca construction, petitioners have been picked up for discriminative treatment for removing the obstruction on the street. The plea found favour with the appellate authority. He quashed the notices and directed the goods removed by panchayat and returned to the petitioners. According to the petitioners, the goods have been returned in pursuance of that order. At this juncture it may also be noticed that in the first instance on 1-1-1993, the appellate committee of Panchayat has granted an injunction against execution of notices, dated 20/24-12-92 for removal of obstruction on the street. According to the petitioners, they have offered certified copy of the order to the officers of Panchayat on 3rd January as well as on 4th January and on 5th of January again when the officers of the Panchayat came to remove the articles, the copy of the interim order was shown to them but in spite of the same, the articles were removed in defiance of the interim order. Considering these facts, the appellate authority also directed the Panchayat to hold enquiry into the conduct of the erring officers.

(2.) Against the order of the appellate committee dated 21-8-1993, revision was preferred by the Gram Panchayat before the Additional Development Commissioner. According to the statement of lawyer of Gram Panchayat recorded by the Additional Development Commissioner, in his order, the appeal of the Panchayat was confined to quashing of notices and there was no appeal against the order directing the enquiry into the conduct of erring officers who have acted contrary to the injunction issued by the appellate committee. By his order dated 25-10-93/27-1-1994, the Additional Commissioner set aside the order of the Committee not only in respect of quashing of notices but also in respect of direction to hold enquiry against the erring officers, by reasoning that as per the record available before him, the injunction order was served by Regd. Post only at 5.00 p.m. on 5-1-1993 but the officers have acted in pursuance to the notice prior to postal delivery. It appears that the Additional Development Commissioner has not taken notice of the fact that though copy of the order by registered post may have reached the office of the Panchayat on 5-1-1993, the petitioners, who had obtained order in their favour from the appellate committee and copy with them had been shown to the officers concerned when they came to execute notices.

(3.) So far as the question of laying of movable goods on street is concerned, it cannot be doubted that the same causes obstruction of a public way and it cannot be said that the Panchayat, responsible for maintaining the public streets and free from any obstruction, has no authority to cause the obstruction on the public street to be removed. It is trite to say that on every inch of a public way, every member of public has a right to pass and repass as many times as he wishes to and anything which causes obstruction requires to be removed subject to just exceptions concerning temporary needs, for special reasons. From the allegations of the petitioners themselves, it is apparent that while public way was already narrow on account of pucca constructions on the other side of the street, the remaining part of the public street only was available for movement of the people. In these circumstances, it cannot be said that the insistence of the Panchayat on the respondents to keep their articles within their house was in any way unreasonable. Be that as it may, since issuance of notice, the obstruction has been removed and the articles of the petitioners have been returned to them, that part of dispute need not be adjudicated here, suffice it to state that articles returned to the petitioners shall not be recovered back from them, in the guise of the order passed by the Additional Development Commissioner and petitioner cannot claim any right to keep obstruction on public streets.