IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7029 of 2011 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= VIRAJIBHAI RAMANBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s) ========================================================= Appearance :
MR SATYAM Y CHHAYA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. MRS KRISHNA G RAWAL for Respondent(s) : 4, ========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition, the petitioner alleged to have encroached upon the Government land admeasuring 875 Sqr.Mtrs. of City Survey No.2388/A of City Dhandhuka, Dist:Ahmedabad, has prayed for the following reliefs:-
“(A) Be pleased to admit/allow this writ petition.
(B) Be pleased to issue an appropriate writ, order or direction quashing and setting aside order passed by respondent no.3 dated 04.06.2011.
(C) Be pleased to stay the implementation, execution and operation of the order passed by respondent no.3 dated 04.06.2011 Annexure- A pending hearing, admission and final disposal of this petition.
(D) Be pleased to grant ad interim relief in terms of Para-11(c).
(E) Be pleased to grant any other and further relief/s in interest of justice.”
2. The facts relevant for the purpose of deciding this petition may be summarized thus:-
2.1 The petitioner seeks to challenge the alleged illegal, unjust and arbitrary action of the respondent no.3, whereby respondent no.3 has directed the petitioner to remove his construction put up in a part of land bearing City Survey No.2388/A at Dhandhuka, Ta:Dhandhuka, Dist:Ahmedabad.
2.2 It is the case of the petitioner that he is a local resident of Dhandhuka City and is engaged in the business of dealing in timber. According to the petitioner, the land in dispute i.e. City Survey No.2388/A admeasuring 875 Sqr.Mtrs. was alloted to the petitioner and his family members. It is his case that respondent no.4 i.e. Dhandhuka Municipality at one point of time was a panchayat i.e. in the year 1982-83 and land bearing City Survey No.2388/A admeasuring 875 Sqr.Mtrs. was alloted on rent/lease to the petitioner as well as his father and his brother. It is also his case that respondent no.4-Nagarpalica has been collecting rent regularly from the petitioner.
2.3 04.06.2011, a notice came to be issued in name of Ramanbhai Premjibhai Patel, father of the petitioner informing that there is an encroachment in an area of 875 Sqr.Mtrs. land bearing City Survey No.2388/A paiki and directed Shri.Ramanbhai Premjibhai Patel i.e. father of the petitioner to remove the encroachment within 10 days, failing which, the authorities would be compelled to remove the encroachment at the cost of the noticee. It is this action, which is sought be challenged by way of this petition.
3. It has been brought to our notice by Mr.P.K.Jani, learned Government Pleader for the respondent no.1-State and Mrs.Krishna Raval, learned advocate for the respondent no.4 that this petition is directly connected with Writ Petition (PIL)10 of 2010, which has been disposed of by this Court vide order dated 20.01.2012.
4. We have noticed that Writ Petition (PIL)10 of 2010 was preferred in public interest by resident of Dhandhuka, bringing it to our notice that in the town of Dhandhuka, there is a pond “Sarvarsha Talav”. It was brought to our notice that the entire pond has been illegally encroached upon by the many individuals and have put up construction in the said pond for residential purpose as well as for commercial purpose. The petitioner of Writ Petition (PIL) No. 10 of 2010, therefore, prayed that the authorities concerned must be directed to initiate appropriate proceedings for removal of such encroachment, so as to make water body clear.
5. The Writ Petition (PIL) No. 10 of 2010, was disposed of by us after being satisfied that practically all encroachments were removed from the land in question. While disposing of the Public Interest Litigation, we thought fit to protect around 40 occupants, who were not in unlawful occupation of the land, as there were respective allotment orders passed in their favour about two decades back. It is in this background, we thought fit to protect 40 occupants, who were named in the list provided by the Deputy Collector with his affidavit-in-reply.
So far as present petitioner is concerned, the encroachment is already removed, as it is evident from affidavit-in-reply filed by the Collector, Ahmedabad dated 19.07.2011 as well as affidavit- in-reply dated 19.07.2011, including statement attached showing details of the persons whose encroachment has been removed on 29.06.2011. In the statement no.2, the name of Ramanbhai Premjibhai Patel, father of the petitioner figures at Serial No.1 and in the last column of remarks, it has been stated that Special Civil Application No.7029 of 2011 has been preferred. Probably, for this reason, at the relevant point of time, action was not taken, but subsequently, the encroachment made by the petitioner herein also came to be removed. What we find is that there is no order of any authority actually alloting land in favour of the father of the petitioner or the petitioner himself and i.e. the reason why the name of the father of the petitioner figures in statement-2 annexed with affidavit-in-reply dated 19.07.2011, which is the statement of all those persons in whose favour, there has been no order of allotment, whereas statement-1 contains list of such persons in whose favour allotment orders were passed but, they later on encroached upon the more land than the allotted area and such encroachment on the area not alloted was also removed.
6. In this background, no relief can be granted in favour of the petitioner. Most importantly, the entire demolition drive for removal of encroachment was undertaken by the respondent authorities pursuant to the direction issued by this Court time to time in Writ Petition (PIL) No. 10 of 2010, which has been ordered to be closed vide order dated 28.01.2012 after issuing necessary directions.
7. In the aforesaid view of the matter, the petition fails and same is hereby rejected. However, there shall be no order as to cost.
(BHASKAR BHATTACHARYA, ACTING C.J.) (J.B.PARDIWALA,J.) Girish