LEGAL HEIRS OF DECD TRIKAMBHAI MANJIBHAI PATEL (KANBI) vs STATE OF GUJARAT

C/SCA/15894/2026 JUDGMENT DATED: 04/11/2026
(GJHC240817472026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15894 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
YES
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LEGAL HEIRS OF DECD TRIKAMBHAI MANJIBHAI PATEL (KANBI) & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. ISHAN VARYANI(18421) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
MR. SAMARTH H BHATT(17506) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
MR JAY TRIVEDI, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3,6,7
MR RB THAKOR(6743) for the Respondent(s) No. 10,4,5,8
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/11/2026
JUDGMENT
1. This petition is filed with the following reliefs:
“10…
A. YOUR LORDSHIPS may be pleased to issue a writ of
certiorari and/or any other appropriate writ, order or
direction, quashing and setting aside the notice dated
17.10.2026 (Annexure - OO) issued by Respondent No.
10-Taluka Health Officer, Dhanera, and further be
pleased to direct the respondent authorities not to
dispossess the petitioners herein from the wada in
question, in the interest of justice.
B. YOUR LORDSHIPS may be pleased to issue a writ of
certiorari and/or any other appropriate writ, order or
direction, quashing and setting aside the order dated
04.04.2020 (Annexure–H) and the correction order dated
29.06.2021 (Annexure – O) passed by the Collector,
Banaskantha – Respondent No. 3 herein, in the interest
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C/SCA/15894/2026 JUDGMENT DATED: 04/11/2026
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of justice.
C. YOUR LORDSHIPS may be pleased to issue a writ of
mandamus and/or any other appropriate writ, order or
direction, directing the respondent authorities to
consider and decide the representations dated
09.06.2025 (Annexure – S), 10.09.2025 (Annexure – T),
13.10.2025 (Annexure – V), 30.07.2026 (Annexure –
CC), 03.10.2026 (Annexure – GG), 05.10.2026 (Annexure
– HH) and 17.10.2026 (Annexure – KK) made by the
petitioners, in accordance with law, as expeditiously as
possible within a stipulated time, in the interest of
justice.
D. YOUR LORDSHIPS may be pleased to issue a writ of
mandamus and/or any other appropriate writ, order or
direction, directing Respondent No. 3 - Collector,
Banaskantha to consider and decide the representation
dated 17.10.2026 (Annexure – KK) made by the
petitioners for regularisation of the wada recorded at
Serial No. 19 of the Wada Register of the year 1968 of
village Magrava and for grant of possession rights (kabja
hakk) thereof in terms of the Resolutions of the
Revenue Department dated 25.04.1980 (Annexure – LL),
13.02.1997 (Annexure – MM) and 30.04.2016 (Annexure
– NN), and for reconsideration of the correction order
dated 29.06.2021 (Annexure – O), in the interest of
justice;
E. During the pendency and final disposal of the present
petition, YOUR LORDSHIPS may be pleased to stay the
operation, implementation and execution of the notice
dated 17.10.2026 (Annexure - OO) issued by Respondent
No. 10, and to direct the respondents, to maintain
status quo with regard to the possession of the wada
recorded at Serial No. 19 of the Wada Register of the
year 1968 of village Magrava, and not to dispossess the
petitioners therefrom and not to carry out any
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construction thereon, in the interest of justice.
F. Pass any such other and/or further orders that may
be thought just and proper, in the facts and
circumstances of the present case.”
2. Heard the learned advocate Mr. Ishan Varyani for the
petitioners and learned AGP Mr. Trivedi for the
respondents-State.
3. It is submitted by the learned advocate Mr. Varyani that
the petitioners are in possession of the Vada land
situated at Village Magarwa, Taluka Dhanera, bearing
Survey No.530 Paiki 1 Paiki 1, which was allotted by the
Collector, Banaskantha, vide order dated 04.04.2020, to
the Health Department for construction of a house. It is
submitted that the petitioners are in possession of the
aforesaid land and that a certificate to that effect was
issued by the Talati-cum-Mantri, Magarwa Gram
Panchayat, Taluka Dhanera, on 17.09.2025. It is further
submitted that, despite various representations having
been made to the authorities, the land has not been
regularized and respondent No.10, in whose favour the
land was allotted by the Collector, has issued a notice
dated 17.10.2026 for removal of the alleged
encroachment, which has constrained the petitioners to
file the present petition. It is submitted that, despite the
petitioners being in possession of the aforesaid land,
instead of considering their request for regularization of
such possession, the impugned notice has been issued.
Therefore, the learned advocate prays that the impugned
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notice be quashed and the authorities be directed to
decide the representations made by the petitioners
seeking regularization of the aforesaid land.
4. Learned advocate Mr. R.B. Thakor, appearing for
respondent No.10, has filed an affidavit, which is ordered
to be taken on record, and submitted that the land was
allotted to respondent No.10 by the Collector in the year
2020. At the relevant point of time, the land was open
and there was no encroachment however, subsequently,
the petitioners started using the said land as Vada land. It
is submitted that the petitioners have no legal
entitlement to retain possession of the land and that their
prayer is essentially for regularization of the
encroachment. It is further submitted that the entry with
regard to the allotment of the land was mutated in the
revenue record on 17.04.2020. However, as the land was
required to be utilized in accordance with Condition No.4
within a period of two years, the same could not be
utilized on account of the encroachment. In that
background, it is submitted that no relief is required to be
granted to the petitioners.
5. Having considered the submissions made by the learned
advocates for the respective parties, it emerges from the
record that, at the time when the land was allotted to the
Health Department by the Collector, it was stated that
the land was an open land there was no any electricity
line passing through it. The order dated 04.04.2020 came
to be modified by the Collector on 29.06.2021, whereby
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Survey No.530 Paiki 1 Paiki 1 was specified in place of
Survey No.530. It is not in dispute that the petitioners do
not have any legal entitlement to remain in possession of
the said land, nor have they availed of any remedy under
the civil law for establishing their legal rights.
6. At this stage, this Court has referred the decision
rendered by the Apex Court in the case of Ved Prakash
Manchanda vs. Delhi Urban Shelter Improvement
Board and Others , reported in 2022 SCC OnLine Del
2610 wherein it is held that no order can be passed to
protect the possessory right of an illegal encroachment of
the Government Land. The relevant paragraph is
reproduced hereinbelow:
“12 It is well settled principle of law that no order can be
passed to protect the possessory rights of an illegal
encroacher of the Government Land. The Hon'ble Apex Court
in the case of Jagpal Singh v. State of Punjab reported as
(2011) 11 SCC 396 has taken judicial notice of the fact that
since independence, in large parts of the country,
unscrupulous persons using muscle powers, money power
and political influence have systematically encroached on
public utility land. The Hon'ble Supreme Court has also
observed that this has been done with the active connivance
with the State Authorities. The Hon'ble Apex Court
deprecated the action of the State Authorities either in
allotting the public utility land in favour of a person or in
permitting an encroacher to occupy such public utility land.
In another case, titled as M.I. Builders (P) Ltd. v. Radhey
Shyam Sahu reported as (1999) 6 SCC 464; the Hon'ble
Supreme Court ordered restoration of a park after demolition
of a shopping complex constructed at the cost of over Rs.
100 Crores. Hence while exercising the discretionary
Jurisdiction under Article 226 of the Constitution of India,
no relief can be extended to the encroacher of Government
land to protect his possessory rights.
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7. This Court has also referred the decision rendered by the
Apex Court in the case of Joginder v. The State of
Haryana, reported in 2021 (3) SCC 300 wherein also
the similar ratio has been laid down. The relevant part is
reproduced hereinbelow:
“10. It is required to be noted that the persons in
illegal occupation of the Government Land/Panchayat
Land cannot, as a matter of right, claim regularization.
Regularization of the illegal occupation of the
Government Land/Panchayat Land can only be as per
the policy of the State Government and the conditions
stipulated in the Rules. If it is found that the conditions
stipulated for regularisation have not been fulfilled, such
persons in illegal occupation of the Government
Land/Panchayat Land are not entitled to regularization.
As observed by this Court in the recent decision in the
case of State of Odisha v. Bichitrananda Das, reported
in (2020) 12 SCC 649, an applicant who seeks the
benefit of the policy must comply with its terms. In the
present case, the policy which was formulated by the
State Government which culminated in Rule 12(4) of the
1964 Rules specifically contained a stipulation to the
effect that the illegal/unauthorised occupation up to a
maximum of 200 square yards only can be sold on
regularisation and on fulfilment of other conditions
mentioned in Rule 12(4) of the 1964 Rules. The
petitioners are found to be in illegal occupation of the
area of more than 200 square yards. Therefore, one of
the conditions mentioned in Rule 12(4) is not satisfied
and therefore both, the competent authority as well as
the High Court have rightly held that the petitioners are
not entitled to the benefit of the provisions of Rule
12(4) of the 1964 Rules. We are in complete agreement
with the view taken by the High Court as well as the
competent authority.”
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8. Considering the aforesaid ratio and applying the same to
the factual background of the present case, it emerges
that the petitioner has no legal authority, ownership or
title to continue in unauthorized possession of the land in
question. It further appears that the petitioner has
attempted to encroach upon the land reserved for the
Health Department and, therefore, is not entitled to any
relief under the discretionary jurisdiction of this Court
under Article 226 of the Constitution of India. In that
background, the present petition deserves to be
dismissed.
9. In the absence of infringement of any fundamental right,
this Court does not find it appropriate to exercise the
jurisdiction vested in it under Articles 226 and 227 of the
Constitution of India. In that background, the present
petition deserves to be dismissed.
10. Resultantly, this petition is dismissed accordingly.
(M. K. THAKKER,J)
M.M.MIRZA
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