Heard Mr. Padhya, learned advocate for the petitioners, and Mr. Thaker, for HL Patel Advocates, learned advocate for the respondent No.1.
2. In present petition, the petitioners have prayed, inter alia, that:-
"29(A) to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the notices dated 06-02-2015 issued by respondents for removal of the shops / cabins of petitioners.
disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the notices dated 06-02-2015 issued by the respondents and further be pleased to restrain the respondents from demolishing the shops / cabin of the petitioners situated in Sidhpur town.
(C) To passed such other and further orders as may be just and necessary in the circumstances of the case."
2.1 During pendency of the petition, the petitioners prayed for permission to amend the petition so as to add one more prayer. Permission was granted vide order dated 12.3.2015. Thereafter, the petitioners inserted paragraph No.29(D). The said paragraph No.29(D) reads thus:-
"29(D) Your Lordships may be pleased to passed an order that before removing the cabin / shops of the petitioners, the respondent Sidhpur Nagarpalika make the alternative accommodation for the petitioners."
3. Learned advocate for the petitioners Page 2 C/SCA/4434/2015 ORDER submitted that the petition being Special Civil Application No.4434 of 2015 is the lead petition and the relevant details and factual aspects have been mentioned in the said lead petition. According to learned advocate for the petitioners, so far as other petitions are concerned, the said petitions are formal one page petitions filed in respect of and by the petitioner Nos.2 to 34 and the said petitions are filed with a view to placing individual details and relevant documents on record. The petitioners rely on the factual details mentioned in and contentions raised in the memo of lead petition i.e. Special Civil Application No.4434 of 2015. It is also declared by learned advocate for the petitioners that all petitioners are similarly situated and they have requested for similar relief on same, identical and common grounds. The said submissions are confirmed by learned advocate for the respondents. In this view of the matter and in light of joint request by learned Page 3 C/SCA/4434/2015 ORDER advocates for the petitioners and the respondents, this group of petitions are decided and disposed of by this common order.
4. During hearing, learned advocate for the petitioners clarified that though 34 petitioners have challenged the notice dated 6.2.2015, actually, only three out of said 34 petitioners are, in fact, served with the such/said notice, whereas other petitioners, being similarly situated, apprehended similar action by the respondents and that therefore, other petitioners have also joined present proceedings.
5. So as to support and justify the relief prayed for in the petitions, the petitioners have averred and stated that:-
"3. The petitioners are permanent residents of Sidhpur town , Taluka: Patan. They are earning their livelihood by carrying on business in their respective shops/cabin situated on New Master Cinema Road near Railway Crossing. As well as near State Bank of India and near Union Bank of India. Which is also known as Rasul Talav Road.
Page 4 C/SCA/4434/2015 ORDER
4. The petitioner further submits that all the petitioners are from Sindhi community and they were doing their business since 1976 and petitioners or their elders are holding the shops since 1976.
5. It is respectfully submitted that in the year 1978, when widening the road took place ,cabins of the petitioners were not disturbed; At that time, the under Secretary, Panchayat, Housing and Rural Development Department, Gandhinagar by order dated 1-4-1978 had informed the President of Sidhpur Nagarpalika and the President of Mahesana District Panchayat that before removing any cabins, alternative accommodation must be provided. .....
7. It is respectfully submitted that all these shops are situated on the road of New Master Cinema and it is known as Rasul Talav Road . And it is submitted that all these shops/cabins are situated at these places since last 30 years. Initially, the shops were allotted by charging lease rent from the petitioners. All the petitioners have paid the lease rent and tax of the municipality regularly. It is submitted the Nagarpalika had collected. municipal tax upto 2004 from the petitioners, but after 2004, the Nagarpalika did not issued any tax bill to the petitioners. However, suddenly in the year 2011, tax bill have been issued to thepetitioncrs demanding exorbitant amount of tax. .....
Page 5 C/SCA/4434/2015 ORDER 8. The petitioners further submits that the
petitioners had registered their shops before the respondent Nagarpalika. And the petitioners respectfully submitted that the respondent Nagarpalika has issued the certificate for the cabin of the petitioners.
10. It is respectfully submitted that by a circular dated 17-6-1976 the State Government has directed to all the Nagarpalika in the state that if the persons, who have come from Punjab and/or Sindh and who are earning. their livelihood by carrying on business in the cabins/shops in Nagarpalika area are required to be removed, they must be provided an alternative accommodation. ..... Again the Government has' issued a circular dated 23-7-1999 intimating the Nagarpalika about providing alternative accommodation before removing the cabins/shops of the persons, who have come from Punjab and/or Sindh. .....
12. The petitioners further submits that to the best knowledge of the petitioners, by resolution dated 16-51996 , 20-8-1998 and 31-1-2000, Sidhpur Nagarpalika permitted several shops/ cabin holders to transfer the names of the shops and raise development funds from the cabin holders.
13. The petitioners respectfully submitted that the District Collector, Patan by an order dated 26-
Page 6 C/SCA/4434/2015 ORDER 4- 2011 directed the Nagarpalika that 37 cabin- holders named in the order must be provided alternative accommodation before removing their cabins. Not only that, but it also appear from that order that the Nagarpalika is directed to allot land to all 37 cabin holders on ownership basis. .....
14. It is respectfully submitted that all the petitioners have made representation to the Nagarpalika pointing out that petitioners are earning their livelihood by doing petty business in these small cabins/shops and they are not causing any hindrance to.the traffic and they have no objection of construction of under bridge in their area . It is prayed in the representation made by the petitioners that if the cabins are required to be removed, then they may kindly be provided alternative accommodation.
15. It is respectfully submitted that the similarly situated persons of Sidhpur town had preferred the Special Civil Application no.7592 of 201 land this Hon'ble Court has passed an order that "the possession of the petitioners need not to be disturbed. In case the petitioner are agreeable for alternative accommodation and file an undertaking their case may be considered by respective authorities in accordance with "law till than none of' the petitioners will disturbed." The petitioners further submits that the petitioners are also similarly situated persons and therefore Page 7 C/SCA/4434/2015 ORDER case of the petitioners are required to be consider. .....
17. It is respectfully submits that the petitioners herein has preferred the SCA no.2227/2015 and in that application respondent advocate has instruction from the Vice President of Sidhpur Nagarpalika intends to withdraw the notices dated O2-02-2015 on account of some technical defect and he further submits that thereafter the Nagarpalika shall issue fresh notices to the petitioners and grant them in opportunity of hearing . Though such statements made by the respondent Nagarpalika , without issuing notice and without giving an opportunity of hearing removed the cabin of the petitioner no.1 namely Vasudev Laxmandas Mulani forcefully and taking the law in their hands. And therefore, all the petitioners approach the Hon'ble Court for protection....."
6. The respondent No.1 has filed reply affidavit and opposed the petitions. The respondents, in reply affidavit, have denied the allegations by the petitioners and have claimed and asserted that:-
"4. The deponent further states that of all the petitioners before this Hon'ble Court only the petitioner no.2. has been served the notice dated 06.02.2015 by the Siddhpur Nagarpalika which is annexed at Annexure-- A of the petition and time Page 8 C/SCA/4434/2015 ORDER petitioner no.2 has accepted the same and petitioner no.2 has filed his reply before the respondent no.1 Nagarpalika on 13.02.2015, which is annexed at Annexure-K of the petition. In the same representation by the petitioner no.2 before the respondent Nagarpalika, the petitioner no.2 was not able to produce any of the documents supporting his ownership or legal occupancy before the respondent Nagarpalika. Annexed hereto and marked as Annexure-
R1 is the copy of the Roj--Kam dated 13.02.2015.
5. The deponent states that the notice dated 06.02.2015 was issued only to the fifteen cabin holders and only those cabin are removed by the respondent Nagarpalika to whom the notices were issued. Annexed hereto and marked as Annexure-R2 colly are the copy of the list of the cabin holders to whom the notices were served and the copies of the notices and the panchnama for service of the notices.
6 The petitioner further states that, only the petitioner no.2 has been served with the notice and only the cabin of petitioner no.2 has been removed In! the respondent Nagarpalika-and no notice have been issued to the remaining petitioners and they have been joined in the present petition with a malafide intention to misguide this Hon'ble Court.
7. The deponent states that no notices have been issued to the petitioners other than petitioner no.2 by the respondent Nagarpalika. The notices Page 9 C/SCA/4434/2015 ORDER were given to the persons whose cabin/shops were required to be removed for the purpose of construction of the under-bridge for larger public interest and notices were only issued in the area mentioned in the notice and no notice has been issued to the shops/cabins holder other than the area. mentioned jJ1 the notice dated. 06.02.2015 and only those cabins which are situated in the area mentioned in the ~notice dated 06.02.2015 are removed after giving opportunity of hearing and the deponent States that other petitioner have been joined with malafide intention to create their interest without any basis. It is further states that it is not certain whether other petitioners have such cabin in the area of Siddhpur Nagarpalika area and inspite of that they are before this Hon'ble court form the alternative accommodation.
8. The deponent further states that the respondent Nagarpalika has verified from the office of the City Survey Superintendent, Siddhpur with regards to the ownership rights of the persons to Whom the notice have been issued. by the letter dated 09.02.2015 and after receiving the reply dated 11.02.2015 of the said office of the City' Survey Superintendent, Siddhpur and thereafter only further action for removal of the cabins have been taken by the respondent Nagarpalika. Annexed hereto and Marked as Annexure-R3 coll! are the copies of the communication dated 09.02.2015 and 11.02.2015.
9.The deponent, therefore, humbly submits that in Page 10 C/SCA/4434/2015 ORDER the light of the above stated facts and it is explicitly clear that the petitioners have tried to misguide this Hon'ble Court and thus, the petition, is required ix: be dismissed. in summarily with heavy cost as no case has been made out."
7. According to the respondents, only petitioner No.2 is served with the notice dated 6.2.2015. The respondent No.1 has even claimed that the petitioner No.2 accepted the notice and filed his reply. The respondent No.1 has further claimed that the petitioner No.2, even in his reply and during hearing, was not able to place any document to support his ownership or lawful occupancy of the shops / premises in question.
8. Learned advocate for the petitioners claimed that the petitioners belong to one community and the respondent - State granted certain benefits to the petitioners by virtue of circulars dated 17.6.1976, 23.7.1999 and 26.4.2011 and in view of said circulars and benefits granted thereunder, the impugned notice is unjustified and deserves to be quashed.
Page 11 C/SCA/4434/2015 ORDER 9. Per contra, learned advocate for the respondent submitted that the respondent authorities have issued the notices to the concerned occupants of shops / other premises which are constructed illegally and unauthorizedly. It is claimed that the petitioners are unauthorized occupants of the premises in question.
9.1 Learned advocate for the respondent No.1 also submitted that the said respondent is, in larger public interest, constructing a bridge and for that purpose, certain parcels of lands are required to be acquired / vacated. It is also claimed that the shops / cabin holders have put up most of the shops / cabins over municipal / Government lands. However, since, they have been occupying shops / cabins, the respondent Nagarpalika with a view to complying the requirements of principle of natural justice Page 12 C/SCA/4434/2015 ORDER issued the notices and asked the concerned occupants to vacate the premises so that the shops / cabins can be removed and work of construction can be completed.
9.2 Learned advocate for the respondent No.1 further submitted that most of such occupants, who illegally and unauthorizedly occupy shops / cabins, have voluntarily removed their belongings and shops / cabins and handed over possession of the premises and shifted at different place. The learned advocate for the respondent No.1 also submitted that most of the petitioners in this group of petitions are such persons who have not been visited with any notice / intimation to remove their respective shops / cabins because as of now, any need to remove the said shops / cabins did not arise. Learned advocate for the respondent No.1 clarified that as of now, the respondent No.1 issued notice only to those cabin holders whose shops / cabins are required to be Page 13 C/SCA/4434/2015 ORDER removed on urgent basis so as to complete the construction of bridge whereas other cabin holders whose land is not required for construction of the bridge have not been visited with similar notices.
10. At this stage, learned advocate for the petitioners submitted that out of three persons, who are served with the notices, respondent No.1 is one of them, however, one of the notice is issued against a dead person i.e. in name of father of one of petitioners whereas the petitioner who is actually occupant is not served with such notice. Learned advocate for the respondent No.1 clarified, on this count, that the notices are addressed to the persons on the basis of the details of owners / occupants which are recorded in the revenue record and in the cases referred to above by the petitioners any entry with regard to the death of the original owner / occupant does not seem to have been Page 14 C/SCA/4434/2015 ORDER carried out at the behest of concerned person.
11. Be that as it may, it is not in dispute that at the most only two petitioners have been served with the notices which is impugned in present petition whereas other petitioners have taken out the petitions only on the basis of apprehension.
12. On the other hand, learned advocate for the respondent No.1 also clarified that as of now, the persons / cabin holders who hold the cabins which do not come within the road line for constructing the bridge, are not removed any any action against such person is not to be taken at this stage and that therefore, any notices are not served to them.
12.1 Learned advocate for the respondent No.1 also submitted and clarified that if at all and whenever any need to remove other shops / cabins arises, then, the respondent No.1 shall follow Page 15 C/SCA/4434/2015 ORDER the procedure of issuing notices and take appropriate action after granting opportunity of hearing to the concerned persons and after taking into account the documents / material which may be relied on by such concerned persons and any action will not be taken without issuing notices to the concerned persons and without granting opportunity of hearing.
12.2 Learned advocate for the respondent No.1 also clarified that the occupants of the shops / cabins, which had to be removed by respondent No.1 for the aforesaid purpose, were served with appropriate notice and the cabins which were situated / located in the road line, if required, have been removed, but after following proper procedure.
13. In view of said clear declaration and stipulation made by learned advocate for the respondent No.1 and in view of the undisputed Page 16 C/SCA/4434/2015 ORDER fact that except two persons out of 34 persons, other persons have not been served with the notice and they have taken out petitions on apprehension and also having regard to the fact that the respondents have initiated action for completing the bridge in larger public interest, present petitions do not deserve to be entertained.
14. It is true that the petitioners have heavily relied on the above mentioned circulars, however, the said circulars cannot be construed to mean that even when need for taking over possession of the lands for larger public interest arises, any action in accordance with law cannot be taken by the authorities.
15. In this view of the matter, learned advocate for the petitioners submitted that, at this stage, the petitioners would not press the petitions and instead the petitioners would Page 17 C/SCA/4434/2015 ORDER approach the respondent authorities and the respondent No.1 - State with appropriate request / representation for alternative place and the said respondents may consider the request of the petitioners, more particularly having regard to the said circulars dated 17.6.1976, 23.7.1999 and 26.4.2011. Since learned advocate for the respondent No.1 has clarified that subsequent actions, if and when required, will not be taken without issuing notice and / or without granting any opportunity of hearing, any further direction on that count is not required to be passed, except clarifying that the respondent No.1 will act in accordance with the stipulation and declaration made by learned counsel representing the respondent No.1.
16. So far as petitioners' request for alternative place is concerned, it is clarified that it would be open to the petitioners to make appropriate request / representation to the Page 18 C/SCA/4434/2015 ORDER concerned respondent authority for alternative place and the concerned respondent will consider such request independently on merits and in accordance with rules and policy. It is clarified that this Court has not expressed any view or opinion with regard to such request by the petitioners and the authorities will consider such request independently.
17. For the foregoing reasons and having regard to the fact that except two persons other persons are not served with any notice and as of now, any action is not contemplated against them and they have taken out present petitions only on apprehension and that the land in question is required for larger public interest and that therefore, the respondents issued notice to the couple of persons amongst present petitioners, the petitions are not entertained, at this stage, and disposed of as withdrawn and not pressed.
Page 19 C/SCA/4434/2015 ORDER
Present petitions accordingly stand disposed of. Notice is discharged. If any interim relief is in operation, it will stand vacated.
(K.M.THAKER, J.) kdc Page 20