Gujarat High Court
Paras Ashokkumar Lakhani S/O Ashokbhai ... vs State Of Gujarat on 7 September, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/12530/2021 ORDER DATED: 07/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12530 of 2021
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PARAS ASHOKKUMAR LAKHANI S/O ASHOKBHAI LAKHANI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAL V DAVE(3846) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KURVEN K. DESAI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 07/09/2021
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, a challenge is made to the impugned order dated 15.06.2021 passed by the respondent - authority exercising power under Section 48(c) of the Gujarat Town Planning and Urban Development Act, 1976.
2. The background of the fact which has given rise to this petition is that the father of the petitioner expired on 27.04.2021 and thereafter on 07.07.2021, respondent no. 2 issued notice under Section 48(C) of the Gujarat Town Planning and Urban Development Act, 1976 indicating that the father of the petitioner had to remove encroachment made by him, failing which, the said encroachment will be removed by respondent no. 2 at the costs of the petitioner. The father of the petitioner was a resident in the property in question for about 40 years and was regularly paying water tax, municipal tax. However, in the meantime, somewhere in the year 2011, when the State legislature passed the Gujarat Regularization of Unauthorized Development Act, 2011, the father of the petitioner having Page 1 of 6 Downloaded on : Sun Jan 16 12:45:53 IST 2022 C/SCA/12530/2021 ORDER DATED: 07/09/2021 applied for seeking regularization of this construction on the subject property, paid impact fees on 05.10.2016 and as a whole the construction over the said property is being regularized in view of the aforesaid provisions of the Gujarat Regularization of Unauthorized Development Act, 2011. On 12.06.2020, the Assistant Town Planner of Rajkot Municipal Corporation had issued notice as to why the subject property be demolished within a period of ten days and the father of the petitioner was called upon to submit the objection on 22.06.2020. The father of the petitioner submitted reply along with other members of the Society who objected to the move by the respondent - Corporation. Later on, the father of the petitioner along with other members of the Society Shri Pravinbhai Liladharbhai Anadkat filed Special Civil Application No. 8618 of 2020 before this Court and on 13.08.2020, this Court was pleased to dispose of the petition by directing respondent no. 2 to issue fresh notice to the petitioner within a period of two weeks from the date of the receipt of the writ of the order and in turn the petitioner shall file reply/objection within a period of further two weeks and as such, after considering the objections which may be submitted, appropriate decision shall be taken within time stipulated in the said order. Thereafter on 12.12.2020, the respondent - Corporation gave notice to the father of the petitioner for removal of the offending construction as portion of the property is required for fitting drainage line as well as water pipe line. On 17.12.2020 the father of the petitioner has submitted a detailed reply/objection indicated in specific terms that the construction has been regularized and the Corporation has also accepted the impact fee charges from the father and, therefore, there is no question of dismantling the property and hence requested not to take any action. However, on 15.06.2021, according to the petitioner, an order came to be passed by respondent no. 2 to remove the construction of the property of the father of the petitioner and other person of their Society within a period of 15 days after the receipt of the order. Hence, it is this order dated 15.06.2021 Page 2 of 6 Downloaded on : Sun Jan 16 12:45:53 IST 2022 C/SCA/12530/2021 ORDER DATED: 07/09/2021 is made the subject matter of present petition by a single member i.e. the petitioner.
3. Learned advocate Mr. Viral Dave appearing on behalf of the petitioner has submitted that the order passed by the authority impugned in the petition is not just and proper and the same being a laconic in nature deserves to be corrected. It has further been submitted that nobody has demanded the facility for which the construction is tried to be removed for lying down the drainage as well as water line and, therefore, in absence of any demand from the any person it is not open for the respondent - Corporation to remove the construction. Learned advocate Mr. Dave has submitted further that the construction in question and the portion thereof which is sought to be demolished is already regularized by the respondent - Corporation on acceptance of the impact fee and as such, it is not open for the Corporation to initiate any action of demolishing the so called portion of the construction. Since all these material aspects have not been properly construed in their proper perspective, the order under challenge deserves to be corrected. Simultaneously, it has also been submitted that all throughout, the Corporation has accepted necessary charges in the form of water tax as well as municipal tax and also the amount of impact fee is taken and when that be so, there is hardly any cogent reason for the Corporation to remove the construction once having been regularized. It is submitted that it may be a public purpose, but public purpose is required to be undertaken if there is an alternative site is available and, therefore simply because the drainage and water pipe line is of public importance, the property which has been regularized may not be allowed to be dismantled under the guise of impugned order. Learned advocate Mr. Dave has therefore, requested the Court to entertain the petition and extend the interim protection. No other submissions have been made.
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4. Having heard the learned advocates appearing for the respective parties and having gone through the record, it clearly appears that the respondent - Corporation is in need of portion of the land in question belonging to the father of the petitioner for the public purpose of lying down the drainage line as well as water line and for that purpose, the portion is coming in draft TP Scheme No. 13 as clearly indicated. It has further been incorporated in the order that in response to the said TP Scheme, the Town Planner Office of the Corporation has demarcated the construction which is required to be removed through authorized surveyor and in respect of such implementation of the Scheme, regularization procedure is observed by issuance of notice calling upon to submit the objections as well.
4.1. It further appears that this very issue was made the subject matter of the petition before this Court being Special Civil Application No. 8618 of 2020 wherein, this Court was pleased to allow the same by appropriate directions since at the relevant point of time, it was found that the order dated 07.07.2020 was a non speaking order and the same was not supported by valid reasons and, therefore, by issuing appropriate directions, the petition came to be disposed of. Following is the operative part of the relevant observation which reads as under :-
"The respondent Corporation is directed to issue fresh notice to the petitioners within a period of two weeks from the date of receipt of this order and the petitioners shall file reply / objections within a period of two weeks thereafter and thereafter the respondent Corporation shall consider the objections that may be filed by the petitioners along with the objections filed earlier dated 22.06.2020, in accordance with law, within a period of two weeks. Thus, the entire exercise shall be completed by the respondent authority within a period of six weeks. With the observations and directions, as aforesaid, this petition stands disposed of. It is made clear that this Court has not expressed any opinion on merits. The learned advocate for the petitioners to send the copy of this order to the respondent Corporation through email. Direct service is Page 4 of 6 Downloaded on : Sun Jan 16 12:45:53 IST 2022 C/SCA/12530/2021 ORDER DATED: 07/09/2021 permitted, to be served through email."
4.2. In response to the aforesaid directions given by the Court, the respondent - authority has extended the opportunity and reconsidered the issue raised by the petitioner and thereafter passed a detailed order on 15.06.2021 by assigning appropriate reasons and, therefore, since the impugned order is not only in compliance with the previous decision of this Court but also in complete consonance with the principles of natural justice, the same cannot be treated as perverse in any form and the reason which has been assigned in the impugned order is quite self explanatory, whereby for the purpose of public interest, a drainage line and water pipe line is being laid down and for that purpose reduction is to be undertaken there is hardly any case made out by the petitioner to call for any interference. It is a settled position of law that whenever there is a conflict between private interest and public interest, private interest is always to be merged into public interest and the reason which has been assigned for passing the order is in consonance with the aforesaid proposition, the Court see no reason to exercise extra ordinary jurisdiction. Thus, while coming to this conclusion, the Court is mindful of the decision in the case of Sayyed Ratanbhai Sayeed (Dead) Through Legal Representatives & Ors. v. Shirdi Nagar Panchayat & Anr., reported in (2016) 4 SCC 631 and on the proposition on the issue. Hence, the following observations are not possible to be unnoticed by the Court.
"58. The emerging situation is one where private interest is pitted against public interest. The notion of public interest synonymises collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine res communious i.e. by everyone in common. Perceptionally health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights being in conflict therewith has to take a back seat. In the words of Cicero the good of the people in the chief law.
59. The latin maxim Salus Populi Est Suprema Lex connotes that Page 5 of 6 Downloaded on : Sun Jan 16 12:45:53 IST 2022 C/SCA/12530/2021 ORDER DATED: 07/09/2021 health, safety and welfare of the public is the supreme in law. Herbert Broom, in his celebrated publication, A Selection of Legal Maxims has elaborated the essence thereof as hereunder: This phrase is based on the implied agreement of every member of the society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good. The demand of public interest, in the facts of the instant case, thus deserve precedence."
5. In view of the above, there appears to be no violation of any of the provisions nor principles of natural justice as also the order does not suffers from vice of non application of mind. Hence, the Court is not inclined to entertain the petition and the same deserves to be dismissed.
6. Accordingly, the petition being meritless, the same stands dismissed with no order as to costs.
(ASHUTOSH J. SHASTRI, J) phalguni Page 6 of 6 Downloaded on : Sun Jan 16 12:45:53 IST 2022