Gujarat High Court
Shantilal Rambhai vs Surat Municipal
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
SHANTILAL RAMBHAI PATELV/SSURAT MUNICIPAL CORPORATION THROUGH MUNICIPAL COMMISSIONER....Opponent(s) C/MCA/1125/2013 CAV JUDGEMNT
MCA11252013Cj2.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (FOR DIRECTION) NO. 1125 of 2013 In WRIT PETITION (PIL) NO. 140 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA Sd/-
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?` No 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 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 ?
No 5 Whether it is to be circulated to the civil judge ?
No =========================================================== SHANTILAL RAMBHAI PATEL & ORS.
Versus SURAT MUNICIPAL CORPORATION THROUGH MUNICIPAL COMMISSIONER ========================================================= Appearance:
MR PC KAVINA, SR. ADVOCATE with MR. AB MUNSHI, ADVOCATE for the Applicants.
MR PRASHANT G. DESAI, SR. ADVOCATE with MR. KAUSHAL D PANDYA, ADVOCATE for the Opponent.
========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :
13/12/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By this Misc. Civil Application, the applicants, the -petitioners of Writ Petition [PIL] No. 140 of 2011, have prayed for revival of the said Public Interest Litigation, which has been disposed of by this Bench on 21st March 2013, and in the alternative, to enforce the directions of this Court with regard to providing the road of width of 14.50 Metres in the East-West direction starting from the Northern corner of Sai Darshan Apartments and proceeding Eastwards till Girnar Society. The applicants have also prayed for passing directions for suitable action against the officers of respondent - Surat Municipal Corporation for not acting in consonance with the assurance given by them to this Court at the time of disposal of the above Public Interest Litigation.
2. By the above Public Interest Litigation, the writ-petitioners had prayed for a direction upon the Municipal authority from discontinuing the use of the road shown in red border as per Google map as public street and also for passing appropriate and suitable direction not to encroach upon the road in question by way of allotment of some space for vegetable market or for garden purpose.
3. There is no dispute that the area, at one point of time, was part of a Creek and now, in the recent times, the same has been developed and the Surat Municipal Corporation has decided to develop the area for the purpose of making it suitable to the present need of the public. It appears from the records that in the proposed scheme, the Municipal authority has earmarked certain portion of the land for the purpose of creation of a vegetable market and, at the same time, some other portion thereof for creating a Municipal garden, which is named Shantikunj .
4. At the time of final disposal of the Public Interest Litigation, Mr. Kavina, the learned Senior Counsel appearing on behalf of the petitioners, apprehended that in the name of allotment of land for vegetable market and for creation of the garden, the width of the road in the congested area would be curtailed.
5. It appears from paragraph 13 of the affidavit filed on behalf of the respondent-Municipal Corporation that originally, the Khadi land in East-West direction was 10 ft. wide, and by the proposed scheme, the Corporation has taken care to see that atleast 14.50 Metres wide road is kept open. At the time of final hearing, Mr. Desai, the learned Senior Counsel appearing on behalf of the Municipal Corporation, after taking instructions from his client, submitted before us that the said road in East-West direction, at no place would be less than 14.50 Metres wide and the allotment of land for vegetable market or garden would not affect any portion of the said 14.50 Metres wide road.
6. This Bench disposed of the aforesaid Public Interest Litigation by directing the Municipal authorities to see that in the proposed Scheme, the new road in East-West direction should be atleast 14.50 Metres wide all throughout and in allotting land for vegetable market or in establishing Shantikunj garden, no portion of that road will be curtailed resulting in less than 14.50 Metres width. With the above directions, we disposed of the Public Interest Litigation.
7. By this application, it is alleged that despite the clear assurance given by the Municipal authority to this Court and despite the clear directions given by this Court while disposing of the Public Interest Litigation, the authorities of the Municipal Corporation have committed the following breaches:
[a]. The assurance given to this Court was that the entire road starting from Kamrej-Surat Highway coming North till Sai Darshan Apartments and thereafter turning East at Sai Darshan Apartment to continue onwards to Girnar Society, would not be narrower than 14.50 Metres at any place. The idea was, therefore, that the portions of Gamtal would be kept open as a thoroughfare.
[b]. The Corporation assured this Court that the applicants grievance of construction of vegetable market was not to be entertained because an adequately wide road (not less than 14.50 Metres at any stage) would be kept open.
[c]. The opponent authorities have breached their statement and disobeyed the order of the Court by constructing a wall approximately 10 ft. in height running North-South, immediately to the south of Sai Darshan Apartment. In this way, the continuous road coming from South to North and then turning East towards Girnar Society is completely blocked thereby breaching the assurance given to this Court as well as clearly flouting the letter and spirit of the order of this Court.
8. Mr. Desai, the learned Senior Advocate appearing on behalf of the Municipal Corporation, has denied the aforesaid allegations made in the application and contended that the road mentioned in our original order has not been made narrower that 14.50 Metres at any place, and all that has been done is that a boundary wall has been made in respect of the proposed garden, viz. Shantikunj and even in that process, the road mentioned in our order has not been blocked.
8.1 Mr. Desai further contends that the purpose of this application is to reopen the matter again with an idea to interfere with the construction of the boundary wall of Shantikunj garden so that the petitioners can use the said garden as part of their short-cut route to reach the road in question.
9. At the time of hearing the application, the parties placed before us various photographs, but in view of some doubts created by various photographs, we directed the Municipal authorities to place before us the present Google map showing the position of the new boundary wall of Shantikunj garden which is the main dispute raised in this application. The Municipal Corporation has accordingly placed the map before us.
10. After going through the said map and taking into consideration the position of the boundary wall put by the Corporation, we find that our order dated 21st March 2013 passed in the Public Interest Litigation has not been in any way contravened. At the time of passing of the said order, it was never our intention to give right of way over the Shantikunj garden and the only direction was that the road which continuing in East-West direction should not be less than 14.50 Metres wide at any place. It is well-settled law that in the matter of construction of roads, the Municipal authority is the appropriate authority which is vested by law to take a decision with the help of it s experts and generally, in the matter of preparation of such a scheme, a High Court, under Article 226 of the Constitution, should not interfere unless it infringes any of the legal or fundamental rights of a citizen. In the case before us, the petitioners cannot claim that they should be permitted to have ingress through Shantikunj garden at any place according to their sweet will, as they have no individual right over the said land. It is not the case that by virtue of the boundary wall erected any of the petitioners is unable to reach the main road. Merely because the petitioners do not have a straight access to the road in question and have to reach the road in a roundabout way, for that reason, the scheme framed by the Municipal authorities cannot be altered. Over and above, in our view, the Municipality is justified in putting the boundary wall to the newly constructed garden created by it for its protection and preservation.
11. On consideration of the entire materials on record, we, thus, find no reason to entertain this application and consequently, the same is dismissed.
11.1 In the facts and circumstances, there will be, however, no order as to costs.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 7 of 7