1. The petitioner has preferred this petition under Articles 226 and 227 of Constitution India,inter alia with a prayer to quash and set aside the order dated 18-9-2012 passed by the Joint Secretary, whereby the appeal filed by respondents Nos.1 and 2 has been allowed and the Chief Officer of Veraval-Patan Municipality has been directed to undertake proceedings for the grant of construction permission, in accordance with law.
2. Mr.Anand J.Yagnik, learned advocate for the petitioner has submitted that the impugned order of the Joint Secretary is erroneous and illegal and deserves to be stayed. The submissions made by him are briefly reproduced herein-below:
(1) The alienation of property on lease by the Veraval-Patan Municipality is in abject violation of Section 65(2) of the Gujarat Municipalities Act,1963 ( the Act for short).
(2) Under the doctrine of Public Trust when the State or a legal authority distributes its largesses, as a trustee of the property and the beneficiaries are people at large, it must be done in the manner and method stipulated in the Statute and in a manner that does not violate the provisions of Articles 14 of the Constitution of India.
(3) Apart from the transfer of property, the entire construction put up by respondents Nos.1 and 2 is in violation of Section 155 of the Act as well as Sections 27 and 29 of the Gujarat Town Planing And Urban Development Act, 1979 ( the T.P.Act for short).
(4) There are private disputes with public consequences and there are non-private disputes with private consequences. Here is a dispute where the petitioner has brought to the fore undisputed illegality in alienation of the property and the construction put up on Municipal property. If alienation and construction are contrary to law, not only the petitioner but entire Municipality will be adversely affected.
(5) Illegal construction has its own ramifications on public safety, public health and traffic. The petitioner is a neighbour of respondents Nos.1 and 2 and is running his Guest House in accordance with law, for the last 40 years. The petitioner is already facing difficulty on account of the existing market on the ground floor. If construction being put up by respondents Nos.1 and 2 will come up, the difficulty of the petitioner will increase, as acknowledged by the Collector in his order.
(6) The petitioner has demonstrated the illegal transfer of Municipal property and the illegal construction being put by respondents Nos.1 and 2 thereupon, with collusion of the Veraval-Patan Municipality which is the owner of the property. Whether the petitioner is personally affected or not, is an issue that takes a back-stage. When an illegality is being pointed out, the locus standi of the petitioner would not be important.
(7) The petitioner has challenged the action of the Municipality under Section 258 of the Gujarat Municipalities Act under which the Collector has wide powers and the order of the Collector has been erroneously set aside by the Joint Secretary by the impugned order.
In support of the above submission reliance has been placed upon the following judgments:
(a) Satishkumar D.Desai v. Patan Nagarpalika and others, 2005(4) GLR 3532
(b) Parshottambhai G. Chavda v. State of Gujarat, 1998(1) GLH 519
3. On the strength of the above submissions, it is submitted that the impugned order dated 18-9-2012 be stayed.
4. Opposing the prayer for grant of interim relief, Mr.Deepak P.Sanchela, learned advocate for the Caveators (respondents Nos.1 and 2) has submitted that the petition is motivated by business rivalry, as respondents Nos.1 and 2 also intend to run a Guest House in the premises under construction. It is submitted that the auction of the premises in question was held by Veraval Patan Municipality and the petitioner as well as respondents Nos.1 and 2 have participated in the same. Respondents Nos.1 and 2 were successful in the auction. Certain conditions have been imposed at the time of auction on 19.12.2004. If condition No.4 is perused, it is clear that the Municipality is empowered to permit construction of Shops/Offices on the terrace of the shopping complex. Respondents Nos.1 and 2 have purchased 20 shops on the terrace of the Shopping Complex and have put up construction in accordance with law. It is further submitted that the petitioner has no locus-standi to file the petition. It is further submitted that respondents Nos.1 and 2 have already invested a huge amount in the construction, apart from the amount paid to the Municipality during auction and the construction is already complete.
That, there is no illegality in the construction of the petitioner and the Municipal Engineer has issued a Certificate stating that the ground floor can bear the load of construction on the first floor, therefore, there is no danger to any person. Further, once the Town Planning Scheme comes into force action can be taken under Section 6B of the T.P.Act and not under Section 258 of the Act, therefore, the order of the Collector has rightly been set aside by the Joint Secretary. Further, as the Resolution for auction of the shop passed by the Municipality has not been set aside by the Collector and respondents Nos.1 and 2 are the auction purchasers who have invested a great deal of money in the construction, no interim relief can be granted at the behest of the petitioner who is not personally aggrieved in any manner. It is further submitted that demolition is not the only available option as held by this Court in Shivnagar Co-operative Housing Society Ltd. v. State of Gujarat and others, 2006(2) GLR 1174 and if the impugned order passed by the Joint Secretary is stayed, it would result in revival of the order of the Collector whereby demolition of the construction made by respondents Nos.1 and 2 has been ordered.
5. Mr.Deepak P.Sanchela, learned advocate for respondents Nos.1 and 2 has relied upon the following judgments:
(a) Sunderdas Vithaldas Tekwani and others v. State of Gujarat and others, 2010(3) GLR 2147
(b) Sanghani Pravinchandra M v. Joint Charity Commissioner 1998(2) GCD 1262
6. I have heard learned counsel for the respective parties, perused the material on record and considered the judgments cited at the Bar as well as the provisions of Section 258 of the Act and Section 6B of the T.P.Act. At the present stage, the Court would be considering the petition for issuance of notice and grant of interim relief. Considering the matter from that angle, there does not appear to be any material on record to indicate that the petitioner is adversely affected or has been harmed by the construction being put up by respondents Nos.1 and 2. There appear to be several other shops in the shopping complex where respondents Nos.1 and 2 are making the construction. Apart from general allegations regarding the purported illegality of the alienation of the property by the respondent-Municipality and the construction itself, there does not appear to be any material on record to show that the petitioner is personally aggrieved. The allegations made by the petitioner can be examined during the course of hearing of the petition, after calling upon the respondents to answer.
7. At this stage, the Court is not dealing with the submissions made on merits by the learned counsel for the respective parties.
On the other hand, considering the provisions of Section 258 of the Municipalities Act and Section 6B of the T.P.Act, and as the Caveators appear to have almost completed the construction, in the view of this Court, the petitioner has not been successful in making out a prima-facie case for the grant of interim relief.
9. Hence, issue Notice, returnable on 17-01-2013. Mr.Deepak P.Sanchela, learned advocate, waives service of Notice for respondents Nos.1 and 2.
(SMT.
ABHILASHA KUMARI, J.) ARG Page 8 of 8