1. This petition under Article 226 of the Constitution of India has been preferred, with the following prayers :
"(A) Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the inaction on the part of present respondent no.1 to 3 for not taking any action regarding removal of illegal construction and encroachment made by the present respondent no.4 upon the Government Land bearing Survey No.1431 (chalu no.124) of Babra Town, and Your Lordship further be please to direct them to remove the illegal construction and the encroachment made by the present respondent no.4 upon the Survey No.1431 (challu no.124) immediately and without any delay;
(B) Pending admission, hearing and final disposal of this petition, Your Lordship be please to direct the respondents no.1 to 3 to remove the illegal construction and the encroachment made by the present respondent no.4 upon the land of the Government i.e. Survey No.1431 (chalu no.124) of Babra Town;
(C) Be please to grant such other and further relief/s which may be deems fit in the interest of justice."
2. The petitioner describes himself as a "peace loving citizen", who is residing in Haveli Sheri, village Babra, District Amreli, for the past three decades. According to him, his house is situated to the West-South of the Haveli. The grievance of the petitioner is that respondent No.4 is constructing a temple in a manner that infringes upon the rights of light and air of the petitioner, and also violates his privacy. In this regard, the petitioner has instituted a suit, being Regular Civil Suit No.26/2011 on 24.06.2011, which is pending. The Court is informed by the learned advocate for the petitioner that the application at Exhibit-5 preferred for grant of interim injunction in the said suit is also pending. It is stated in the petition that after filing the above-mentioned suit, it came to the knowledge of the petitioner that without getting prior approval or sanction for the plans for construction from respondents Nos.1 and 2, namely the Collector, Amreli and Babra Nagar Seva Sadan, respectively, respondent No.4 has started making construction over the land. On 09.09.2011, the petitioner expressed his grievance in the programme for redressal of grievances held by the Honourable Chief Minister. On the same day, the petitioner gave an application to the Chief Officer of respondent No.2 stating that respondent No.4 is illegally constructing a temple without prior permission and without sanctioned plans. It was also pointed out that respondent No.4 has encroached upon Government land while making such construction. Appropriate action was requested to be taken by the petitioner, from the Chief Officer in this regard. Pursuant to the above-mentioned applications made by the petitioner, respondent No.2 issued letter dated 04.01.2012, calling upon respondent No.4 to produce documents reflecting his ownership upon the land in question. It is not clear from the material on record whether respondent No.4 produced any documents, or not. However, the petitioner has produced a copy of the order dated 04.02.2000 passed by respondent No.3-City Survey Superintendent, holding that the land in question belongs to the State Government. Thereafter, on 12.01.2011, the Chief Officer of respondent No.2 issued notice to respondent No.4 calling upon him to produce documents regarding ownership of the land upon which construction was being carried on within seven days, failing which action shall be taken against him under the Gujarat Municipalities Act, 1963. On 09.02.2012, the petitioner again wrote a letter to respondent No.2 pointing out that in spite of notice being issued to respondent No.4, the construction was still continuing and no action had been taken by the authorities regarding the same. Being aggrieved thereby, the petitioner has approached this Court by way of this petition.
3. Mr.M.B.Parikh, learned advocate for the petitioner has submitted that the petitioner is a law-abiding citizen and the construction put up by respondent No.4 is illegal. Respondent No.4 has encroached upon Government land. The petitioner has moved the concerned authorities for removal of the said construction, and though notices have been issued by the Chief Officer of respondent No.2 to respondent No.4 on 04.01.2012 and 12.01.2012, no further action has been taken. The construction is being put up on Survey No.1431 situated at village Babra, which is mutated in the name of the State Government, which has been held by respondent No.3 to belong to the State Government, and in spite of the representations made by the petitioner, respondents Nos.2 and 3 have not taken appropriate action, which has led the petitioner to approach this Court in order to protect the interest of the State Government.
4. It is further submitted that the construction being put up by respondent No.4 is adjoining the residence of the petitioner, and his easementary rights of light and air are being adversely affected. The right of privacy of the petitioner has also been violated. For the protection of those rights, the petitioner has also moved the Civil Court by instituting a Civil Suit, and the present petition has not been filed for protection of easementary rights, and may be entertained.
5. Ms.Nisha M. Thakore, learned Assistant Government Pleader has appeared on behalf of respondents Nos.1 and 3 on supply of an advance copy of the petition. She has opposed the issuance of notice in the petition on the ground that the petition is not maintainable, as the petitioner is not a 'person aggrieved'. It is submitted that insofar as the easementary rights of the petitioner are concerned, a Civil Suit has already been instituted by him, which is pending. However, as regards the plea that the construction put up by respondent No.4 is unauthorized and that respondent No.4 has encroached upon the Government land, notices issued by the concerned authorities on 04.01.2012 and 12.01.2012 clearly show that the authorities are seized of the matter and have initiated action against respondent No.4. It is contended by the learned Assistant Government Pleader that no fundamental or legal rights of the petitioner have been infringed so as to entitle him to pray for the issuance of a writ of mandamus, especially when action has already been taken by the concerned respondents, therefore, the petition may not be entertained.
6. I have heard the learned advocate for the petitioner and the learned Assistant Government Pleader and perused the averments made in the petition and the documents on record.
7. It has been clearly stated in paragraph-3.2 of the petition that the construction of a temple by respondent No.4 has resulted in the violation of the easementary rights of light and air of the petitioner, as well as the right to privacy. That Regular Civil Suit No.26/2011 has already been instituted by the petitioner for protection of his easementary rights. It, therefore, follows that insofar as the offending construction affects the easementary rights of the petitioner, an appropriate remedy has already been availed of by him. The specific averments made by the learned advocate for the petitioner are to the effect that the petition is maintainable on the ground that the petitioner has a right to point out the illegality of the construction being put up by respondent No.4 on Government land, as a law-abiding citizen. Admittedly, the petition has not been filed in pro bono publico. In the circumstances, a question arises whether the petitioner can be said to be a 'person aggrieved' so as to maintain the petition.
8. To answer this question, reference may be made to a judgment of Supreme Court in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and others reported in AIR 1976 SC 578, wherein the Supreme Court has held as below :
"12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question: Who is an "aggrieved person"? And what are the qualifications requisite for such a status ? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction."
In paragraph-46 of the said judgment, the Apex Court has held that :
46. Thus, in substance, the appellant's stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called demnum sine injuria, the term injuria being here used in its true sense of an act contrary to law.* The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.
47. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He 'has no legal peg for' a justiciable claim to hang on. Therefore he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No Objection Certificate.
48. *************
49. While a Procrustean approach should be avoided, as a rule, the Court should not interfere at the instance of a 'stranger' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a 'stranger', and not a busybody, then also, there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant's monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 and 2, which they have under article 19(1) (g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions' imposed by law."
(emphasis supplied)
9. In the present case, applying the principles of law laid down by the Supreme Court to the facts and circumstances of the present case, it is seen that insofar as the easement rights of the petitioner are concerned, the petitioner has already instituted a Civil Suit and the petition has not been filed for protection of these rights. Further, it is seen that no other legal or fundamental rights of the petitioner have been violated. In short, the petitioner cannot be said to be a 'person aggrieved', who has sustained injury to his legally protected right or interest. The petition has only been preferred on the ground of alleged inaction on the part of the respondent authorities in removing the construction made by respondent No.4.
10. At this stage, it may also be fruitful to advert to a judgment rendered by a Division Bench of this Court in case of Lalbhai Trading Company through B.K.Bhatt & Ors. Vs. Union of India and Ors. reported in 2006 (1) GLR 497, where, after examining several judicial pronouncements of the Supreme Court including Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and others (Supra), and certain English decisions, it has been held as below :
14. On a conspectus of the aforesaid case law it becomes clear that the words "person aggrieved" are required to be ascertained with reference to the purpose of the provisions of the statute in which they occur. The meaning may vary according to the context of the statute. However, one thing is certain, a person can be said to be aggrieved if a legal burden is imposed on him which may be in the form of being denied or deprived of something to which such person is legally entitled.
[a] The meaning of the words 'aggrieved person' cannot be read as an expression which is rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury suffered by the person are relevant factors.
[b] The duty of the Court is to read into the statute, a duty to act fairly in accordance with the principles of natural justice. If a person suffers a wrong as a result of unfair treatment on the part of the authority, he is a person who has suffered a legal grievance, against whom a decision has been pronounced which decision has either wrongfully deprived him or wrongfully refused him something or wrongfully affected his title to something. In other words, the person must have suffered a legal wrong or injury, in the sense, that his interest is prejudicially and directly affected by the act or omission of the authority.
[c] The grievance has to be his own beyond some grievance or inconvenience suffered by him in common with the rest of the public. The test is: can the person be said to be entitled to object and be heard by the authority before the authority takes the impugned action.
[d] The person has to be directly and immediately affected. An aggrieved party is one whose personal, pecuniary or property rights are adversely affected by another person's action or by a decree or judgment by a court.
[e] An appeal can be preferred from every original decree or from every decree passed in appeal. The appellant must be a person aggrieved by a decree nor merely by a finding. The person must be prejudicially or adversely affected by the decree. In other words, when a person is fastened with liability whereunder his property, of every type, is directly affected. To put it differently,is the person, by virtue of the decree, called upon to discharge a pecuniary liability so as to deprive him of his property. If the answer is yes, he is an aggrieved person." (emphasis supplied)
11. In Ganpat Mohanbhai Vasava v.
Addl. Development Commissioner, AIR 2008 Gujarat 88, the above quoted principles of law culled out in Lalbhai Trading Company v.Union of India (Supra.), have been relied upon by the Division Bench.
12. In the present case, even if the words "person aggrieved" are given a wide interpretation, then also, some prejudice, injury or wrong should have been suffered by the petitioner. The only alleged infringement of his legal rights by way of alleged violation of easementary rights has been addressed by filing a Civil Suit, which is pending adjudication. No other legal right of the petitioner has been infringed so as to enable him to maintain the petition as a person aggrieved. As a citizen, the petitioner may have pointed out the alleged illegal construction and encroachment by respondent No.4 to the concerned authorities. In response thereto, the authorities have initiated action against respondent No.4, which is evident from notices dated 04.01.2012 and 12.01.2012 that are on the record of the petition as Annexures-C and D, respectively. It cannot, therefore, be said that no action is being taken by the concerned authorities. The action, if any, that is to be taken by the authorities, in accordance with law, cannot be dictated by the petitioner. The authorities are not bound to follow the directions of the petitioner as to how the action is to be taken. Suffice it to say that, on the basis of the complaints made by the petitioner, the concerned authorities have initiated action, and are not estopped from taking further action if warranted by law.
13. The prayers made by the petitioner may now be examined. The petitioner has categorically prayed for the issuance of a writ of mandamus, quashing and setting aside the inaction on the part of respondents Nos.1 to 3 for not taking any action regarding the removal of the alleged illegal construction and encroachment made by respondent no.4, on Government Land bearing Survey No.1431 of Babra Town. The prayer made by the petitioner cannot be granted for the reasons stated hereinabove. It should also be noted that if the prayers made by the petitioners are granted, it would amount to decreeing the Civil Suit filed by him for the protection of his easementary rights. What has not been achieved by the petitioner in the Civil Suit, is sought to be achieved in an oblique manner, by way of this petition.
14. In Union of India and another Vs. Arulmozhi Iniarasu and others reported in (2011) 7 SCC 397, the Supreme Court has held as below :
"26. Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality."
(emphasis supplied)
15. In view of the fact that no legal right of the petitioner has been infringed, a writ of mandamus cannot be issued in favour of the petitioner. As already held hereinabove, the petitioner is not a person aggrieved, so as to invoke the writ jurisdiction of this Court under Article-226 of the Constitution of India. The petition cannot, therefore, be entertained.
16. It would be appropriate to part with this judgment by reproducing the pertinent observations made by the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and others (Supra.) which would be applicable to the facts and circumstances of the case :
"48.
It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money."
(emphasis supplied)
17. For the aforesaid reasons, the petition is rejected.
(Smt.
Abhilasha Kumari, J.) ~gaurav~ Top