1. The petitioner has taken out present petition seeking below mentioned relief/s:-
"7 (A) that this Honourable Court be pleased to issue a writ of mandamus and / or certiorari and / or a writ in the nature of mandamus and / or certiorari and / or any other appropriate writ order of direction to quash and set aside the order dated 19.5.2012 (copy at Annexure-1 hereto) passed by the respondent no.1 and to permit the petitioner to enter his residential premises being 1/5, Shaheri Garib Awas Yojana, Vijay Mill Compound, Asarwa, Naroda Road, Ahmedabad.
(B) pending the admission hearing and final disposal of the present petition, this Honourable Court be pleased to direct the respondents to open the lock applied to the petitioner's residential premises being 1/5, Shaheri Garib Awas Yojana, Vijay Mill Compound, Asarwa, Naroda Road, Ahmedabad and direct the respondents to permit the petitioner to enter his residential premises.
(C).....
(D)...."
2. The petitioner has claimed that he was residing at hutments, Ramwadi, Behind Vasant Chowk, near Sabarmati River.
3. The petitioner has also claimed that he is affected by "Sabarmati River Front Development Project".
4. The petitioner has further claimed that on earlier occasion the petitioner's case was considered by the competent authority by considering him "project affected person" and he was allotted flat No.1/5 at Shaheri Garib Awas Yojna, Vijay Mill Compound, Asarwa, Naroda Road, Ahmedabad. He has also claimed that pursuant to such allotment the petitioner occupied the said flat and when respondent's official came for inspection he was in possession of the said flat.
4.1 It appears that certain petition by way of public interest litigation i.e. SCA No.6280 of 2005 was taken out and was considered by the Division Bench. In the said petition certain orders in Civil Application were made. One of the orders came to be passed on 9.9.2011. In the said order the Court, inter alia, observed and directed that:-
"11. In the meantime, to ensure that Sabarmati riverfront project starts fullfledged, for which in fact all these rehabilitation measures have been taken, we direct that all the persons who have been allocated the units, should occupy their respective units by 31st October 2011. Those who are still claiming allotment, with regard to such person, the matter may be verified by Justice D.P. Buch Committee. They will shift to other place. If needed, they may request the Corporation to point out temporary place where they may continue till identification is completed by Justice D.P. Buch Committee. In any case, total Sabarmati riverfront area should be vacated by 8th November 2011.
12. So far as allocation of units at one or other location is concerned, we are not inclined to issue any direction to the Corporation. It will be open to one or the other allottee to exchange the units from one place to another place or one block to another block, after prior permission of the Corporation. If any such application is filed, with consent of another party for exchange, the Corporation will look into it sympathetically and my reallocate such units on such exchange.
13. It is reported that some persons by fraudulent method got their names included in the list. Though they were not eligible for allotment of units, they obtained allotment pursuant to order passed in this public interest litigaion. In this regard, we may observe that if any such person, who was not the PAFs residing in the Sabarmati riverfront area by the date the Court passed order of rehabilitation i.e. 5.7.2011, such person should be evicted forthwith giving reference of this Court's order. If they are evicted, they may move before this Court in this public interest litigation to show that they have been wrongly evicted, but no Civil Court will entertain their application for passing interim order of stay and thereby they cannot frustrate the order passed by this Court. The Corporation may get it verified either through Justice D.P. Buch Committee or through any independent investigating agency including C.I.D. (Crime) of the State.
14. A progress report by submitted before this Court by the next date.
15. As this order could be passed by the Court because of cooperation of the officers of the Ahmedabad Municipal Corporation, we direct the persons, whoever has lodged complaint against any of the officers of the Corporation with regard to eviction or rehabilitation, to withdraw such complaint. If such complaint is not withdrawn, it will be open to the officers to bring this order to the notice of the competent Court to ensure that no further action is taken pursuant to such complaint."
4.2.
It appears from the record that after the said order was passed, one of the officers of the respondent had visited the premises which were alloted to the petitioner and asked the petitioner to produce the receipt of payment which was required to be made i.e. Rs. 3260/-. The petitioner could not produce the receipt.
4.3 There is not dispute about the fact, rather it is an admitted fact, that the petitioner had not and has not paid the requisite amount.
4.4 The petitioner was asked to vacate the premises as it emerged that he was occupied premises unauthorizedly.
4.5 The petitioner has claimed that he visited office of the respondent Corporation and expressed his willingness to pay amount as per the requirement. The petitioner has also claimed that he was informed orally that his allotment has been cancelled. The petitioner therefore, approached this Court and filed writ petition being SCA No.5932 of 2012. This Court disposed of the said petition relegating the petitioner to appear before the Executive Director, Sabarmati River Front Project and to submit requisite documents as may be required by the competent authority, particularly the document to establish that the petitioner was residing at Sabarmati River Front Project Affected Area prior to the cut off date.
4.6 It appears that the petitioner could not produce the requisite documents i.e. the documents which are considered necessary for ascertaining as to whether the petitioner was residing in the project affected area prior to the cut off date, or not.
4.7 It appears that the respondent authorities have prescribed the documents which are considered necessary for determining said aspect. It is the case of the respondent authorities that the petitioner could not produce some of the said relevant documents.
4.8 Therefore, after considering the material which was placed by the petitioner before the competent authority, the competent authority has passed order dated 19.5.2012 holding that the petitioner has not been able to establish that he was residing in the project affected area before the cut off date. Therefore the competent authority did not accept the request of the petitioner.
4.9 The petitioner is aggrieved by the said decision of the respondent authority.
5. Mr.
Motiramani, learned advocate for the petitioner submitted that the documents produced by the petitioner have not been primarily considered by the competent authority. He has also submitted that the officer of the respondent Corporation examined the said documents however, the case of the petitioner has not been examined by any independent agency as per the direction by the Court in the order dated. 9.9.2011. He submitted that the allotment of the flat was made in favour of the petitioner and there was no justification for cancelling the said allotment or evicting the petitioner.
6. I have considered the submissions made by the learned advocate for the petitioner and perused the record.
6.1 The premises in question are constructed for rehabilitation of urban poor. So proper precautions have to be taken to ensure that ineligible persons may not get into possession of the premises, unauthorizedly and / or illegally.
6.2 From the record and particularly from the order dated 19.5.2012 passed by the competent authority it appears that on earlier occasion the petitioner was asked by the competent authority to produce relevant documents and also to make payment of Rs.3260/- and after verification of the documents his case was to be considered for allotment. It is also mentioned in the order that the petitioner was supposed to occupy the premises only after producing the relevant documents and only after making payment of Rs. 3260/- and satisfying the authority about his entitlement / eligibility however the petitioner took the possession of the premises and occupied premises without submitting requisite documents and / or without making payment of Rs.3260/-. In paragraph Nos. 4 to 8 below mentioned aspects have been recorded by the authority in the said order dated 19.5.2012:-
4.As your name is listed in the list of the petitioners, the allotment of th accommodation of the Block No.01, Flat No.0005, Vijaymill, T.P.12/F P.44 was made to you through computer draw system by the Ahmedabad Municipal Corporation / Sabarmati River Front Development Corporation Ltd.
5.For getting the possession of the allotted accommodation to you, you had to submit your residential proof and identification proof for completing the necessary documentary procedure at the office of Sabarmati River Front Development Corporation Ltd and after you have deposited the first installment of Rs.2300/- (in words Rupees Two Thousand and Three Hundred only) and Rs.960/- (in words Rupees Nine Hundred and Sixty only) and the N.G.O. Co-ordination Fee, thus total Rs.3260/- (in words Three Thousand Two Hundred Sixty only) from the beneficiary fund of the allotted accommodation, you were to take the possession of the allotted accommodation. Without following the said documentary procedure, your had unlawfully taken the possession of the accommodation allotted to you. As the same is to be handed over to you after the said documentary procedure is completed, the said possession is taken back by the Ahmedabad Municipal Corporation / Sabarmati Reverfront Development Corporation Ltd. and you have been informed to complete the necessary documentary procedure.
6. In connection with the aforesaid facts, you had submitted the following documents for completing the documentary procedure at the office of Sabarmati River Front Development Corporation.
* Agreement showing details of the family.
* Undertaking.
* Supporting Car dated 30.7.2011 of Rajubhai Tulsiram Marvadi.
* A certificate issued by the Member of Legislative Assembly (Shapur) Shrti Gyasuddin Shekh for identification of Rajubhai Kumvati Marvadi dated. 25.8.2011.
* School Leaving Certificate of Ravibhai Rajubhai Kumavati Son of Rajubhai Tulsibhai Marvadi.
* A certificate issued by the Member of Legislative Assembly (Shapur) Shri Gyasuddin Shekh for identification of Ravibhai Rajubhai Marvadi dated. 8.9.2011.
* Copy of the progress statement of Ravi Rajubhai Kumavati son of Rajubhai Tulsibhai Marvadi issued by Nagar Primary Education Committee.
* An affidavit by the Committee of the Representatives of the affected families for identification of Shri Rajubhai Kumavati Marvadi and Rajubhai Tulsibhai Marvadi.
* Affidavit No.9790 dated 3.9.2011 of Rajubhai Kumavati.
* Copy of the Pan Card of Rajubhai Kumavati Marvadi dated. 29.9.2011, copy has been submitted in this office as documentary evidence.
7. As stated in the affidavit dated 3.9.2011 as (J) out of the aforesaid produced documentary evidences, it has been stated therein that you do not have the evidence of identification and residents of the area of Sabarmati River Front Project.
8. On examining the said evidence, as your evidences are not granted, the possession of the accommodation allotted to your was not handed over to you."
7. The authority has recorded that when the petitioner was afforded opportunity of hearing in accordance with the order passed in SCA No. 5932 of 2012 the petitioner once again produced the same documents which were found unacceptable by the authority on earlier occasion and the petitioner did not produce the documents which the concerned authority wanted and which are prescribed by the concerned authority as the relevant documents. Since the petitioner could not establish factual aspect and his eligibility / entitlement as per prescribed criteria the petitioner's case is not accepted by the competent authority.
8. If the case of the persons who were really residing in the project affected area before the cut off date are not primarily scrutinized and relevant documents are not insisted upon, then situation may arise wherein the persons who are really not project affected persons and / or persons who were not residing in the project affected area before the cut off date may take disadvantage of the situation and may illegally and unauthorizedly occupy premises which are to be allotted to the genuinely project affected persons.
8.1 So as to avoid such possibility when the competent authority has prescribed certain documents as relevant and necessary documents then it becomes necessary for all persons, seeking allotment, that they should strictly follow and comply the instructions and requirements supply all the documents to the satisfaction of the competent authority. If the authority, upon verification of the documents comes to the conclusion that the said documents are not relevant and / or do not fulfill the requirement and / or are not sufficient to establish the applicant's entitlement as per the prescribed criteria and do not establish that the persons were really residing in the project affected area prior to the cut off date and in such cases if the authority rejects the request of the concerned persons, then the Court would not interfere with the decision and in the process of judicial review will not reappreciate the evidence already considered by the competent authority and found to be unacceptable and / or insufficient and / or not relevant. The observation in paragraph 13 of the order passed on 9.9.2011 would not help the petitioner inasmuch as the eventuality and procedure mentioned in the order viz. of getting the case of the persons verified through Justice D.P. Buch Committee or through any independent investigating agency including C.I.D. (Crime) of the State are with reference to the persons who are evicted from the Sabarmati River Front Area and for such cases wherein there is any dispute or doubt about the veracity of the document sought to be relied on by the petitioner. However in cases where the requisite documents are not even submitted / produced or documents which are produced even prima facie do not establish the claim of the petitioner that he was residing in the project affected area, then the said procedure would not be attracted and would not be applicable and occasion for referring the matter to the independent agency or to Justice D.P. Buch Committee would not arise. In present case the authority has found that the petitioner could not produce the requisite document to satisfy the authority about the relevant factual aspects therefore, his case is not considered. In these facts no fault can be found with the order -
decision of the competent authority.
9. It is also noticed that the petitioner had illegally and unauthorizedly occupied the premises without even making requisite payment which was a condition for taking possession of the premises in question.
10. Before the petitioner took over the possession and entered the premises and started occupying it, he had also not submitted relevant document which also was a condition.
Therefore, even otherwise the petitioner's entry into preemies and its occupation was unauthorized and impermissible. In such circumstances any fault with the respondent's action cannot be found.
12. If the persons who are not genuinely and really project affected persons start occupying the premises, then the situation may arise wherein really affected persons may be left out and respondent Corporation and State Government may not have sufficient number of quarter to allot to such project affected persons.
13. Such person cannot be allowed to mar a genuine case of the project affected persons, therefore the petition does not deserve to be entertained.
Hence, the petition is rejected.
(K.M.THAKER,J.) Suresh* Top