Gujarat High Court
Mahendrabhai A Brahmbhatt vs State Of Gujarat & 5....Opponent(S) on 6 April, 2015
Author: R.P.Dholaria
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/WPPIL/340/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 340 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 or any order
made thereunder ?
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MAHENDRABHAI A BRAHMBHATT....Applicant(s)
Versus
STATE OF GUJARAT & 5....Opponent(s)
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Appearance:
MR KRUNAL D PANDYA, ADVOCATE for the Applicant(s) No. 1
MR VANDAN BAXI, AGP for the Opponent(s) No. 1
MR DHAVAL G NANAVATI, ADVOCATE for the Opponent(s) No. 2
MR MIHIR JOSHI, SENIOR COUNSEL ASSISTED BY MR SALIL M
THAKORE, ADVOCATE for the Opponent(s) No. 3
NOTICE SERVED for the Opponent(s) No. 1 , 4 - 6
Page 1 of 6
C/WPPIL/340/2013 JUDGMENT
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 06/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. We have heard Mr.Krunal D.Pandya, learned advocate for the petitioner, Mr.Vandan Baxi, learned AGP for respondent No.1, Mr.Dhaval G.Nanavati, learned advocate for respondent No.2 and Mr.Mihir Joshi, learned Senior Counsel assisted by Mr.Salil M.Thakore, learned advocate for respondent No.3.
2. By way of this Writ Petition in the nature of Public Interest Litigation, the petitioner has prayed for the following reliefs:
"A) The Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.4 to initiate prompt actions of holding inquiry/investigation to ascertain violation of the provision of the different enactment as mentioned in this petition and to initiate the action, after holding proper investigation regarding the construction made in the khadi as well as sand dumped in the khadi is required to be removed forthwith. Action initiated against the involved officer of the respondent No.2;
B) Pending hearing and final decision of the present petition, the Hon'ble Court may be pleased to direct the respondent No.4 Collector, Surat to hold immediate inquiry/investigation to ascertain the illegal sand dumping in the khadi nearby final plot no. 13 Dumbahi, Limbayt (south east zone) and stop the further sand-clay dumping in the khadi at Limbayt Dumbahi, Surat at T.P. Scheme no. 33 and submit report regarding this before the Hon'ble High Court;
C) For other and further relief as may be deemed fit the facts of the present case."Page 2 of 6
C/WPPIL/340/2013 JUDGMENT
3. It is alleged by the learned counsel for the petitioner that private respondent No.3 has made encroachment upon creek (khadi land) situated at T.P. Scheme no. 33 at Dumbhal, South East Zone, Limbayat, Surat and the government respondents are not taking any action against the said private respondent, and therefore, he has prayed for issuance of writ of mandamus for removal of alleged encroachment.
4. Upon issuance of the notices, affidavit-in-reply has been filed by the government respondents as well as the private respondent. After perusal of the aforesaid affidavit-in-reply, this Court vide its order dated 18th December, 2014 directed respondent No.2-Commissioner, Surat Municipal Corporation to conduct an inquiry about the area allotted to respondent No.3 and also further directed to ascertain when such allotment came to be made to respondent No.3 and further also it was directed to ascertain whether he has encroached upon any portion of creek or not and a detailed report was called for from respondent No.2.
5. In response thereof, a detailed report dated 23.01.2015 has been filed by respondent No.2-Commissioner, Surat Municipal Corporation at pages 136 to 138, which are extracted below:
"1. I have received the order passed by the Hon'ble Gujarat High Court in Writ Petition (PIL) No. 340 of 2013 directing me (the Commissioner) to conduct the inquiry about the area allocated to the respondent No.3 and ascertain when such allotment is made to the respondent No.3 and whether he has encroached upon any portion of creek land or not.
2. After receiving the said order passed by the Hon'ble Court, on 18.12.2014, I set up the Committee consisted of
(i) Deputy Municipal Commissioner (P&D), who has filed Affidavit before this Hon'ble Court on 22.8.2014; (ii) Deputy Municipal Commissioner Shri C.Y. Bhatt, and (iii) Additional City Engineer (Civil), Town Development Department, and I have ordered the committee to make a Page 3 of 6 C/WPPIL/340/2013 JUDGMENT report.
3. Meanwhile, I have perused the record and found that in respect of the land in question the draft scheme was sanctioned on 21.01.2000 and the first Town Planning Officer was appointed on 19.11.1999. I have also perused that earlier in the draft scheme lesser area was allocated to the respondent No.3. However, when the application for permission was placed before the Corporation on 28.7.2008, as per Section 49(1) of the Gujarat Town Planning & Urban Development Act, 1976, opinion was obtained from the Town Planning Officer vide letter dated 7.10.2008. The opinion from the Town Planning Officer was given and it has been informed that the respondent No.3 is allotted Final Plot No. 13 in the preliminary scheme which is under preparation and the area of the said plot is 53530 sq. meters. However, the Town Planning Officer has gave revised opinion on 13.10.2008 and informed that final plot No. 13 is admeasuring 55240 sq. meters and, therefore, the Town Development Department has sanctioned the plan considering the land admeasuring 55240 sq. meters as final plot No. 13 and the permission is granted after taking opinion from the Town Planning Officer.
4. I have also perused the provision of G.D.C.R. and more particularly the provision under Regulation 14 and also the plan submitted by the respondent No.3 and sanctioned by the Corporation on 26.8.2010. I have also perused the report of the committee submitted to me and I have approved the same after looking at the file and found that no encroachment is made on the creek by the respondent No. 3. I have also perused the conclusion made by the Committee and after considering all the aspects I have accepted the report of the Committee.
5. As per the order passed by the Hon'ble Court, I am submitting this report along with the committee's report for the perusal of this Hon'ble Court."
6. Therefore, the aforesaid report is based upon a Committee constituted by the Commissioner, Surat Municipal Corporation comprising Deputy Municipal Commissioner (Planning & Development), Deputy Municipal Commissioner, Additional City Engineer (Civil) and Town Development Department. The aforesaid Committee has given the detailed facts with regard to private respondent No.3 as well as the allegations levelled by the present petitioner and the findings arrived at upon the aforesaid Committee. The report is very lengthy, but we deem it proper to merely reproduce the conclusion recorded at page 145, which is Page 4 of 6 C/WPPIL/340/2013 JUDGMENT extracted below:
"1. Area allotted to Respondent no. 3 by Town Planning Officer vide letter dated 13.10.2008 is 55240 sq. meters.
2. The boundary of the plot of Respondent no. 3 is as per the opinion given by Town Planning Officer and no encroachment has been done on creek. The width of the creek at the site is as per the width shown in the revenue map of Village. The boundary of the plot is as per the dimensions provided by Town Planning Officer under T. P. Scheme.
The Development Permission granted by S.M.C. is as per the area/shape/boundary based on the opinion given by Town Planning Officer appointed by Government of Gujarat.
This T.P. Scheme is presently pending for sanction at T.P.O./Government level. Chief Town Planner of Government of Gujarat has given his opinion vide letter dated 12.11.2014 for the disputed land and accordingly final decision shall be taken by concerned Town Planning Officer to submit the Scheme to Government for final order.
The above report has been prepared by the Committee constituted by Municipal Commissioner in pursuance of the order dated 18.12.2014 in the case of Writ Petition (PIL) no. 340 of 2013."
7. During the course of hearing, we have been taken through the various documentary evidence laid before this Court by the petitioner as well as the respondents. In our perusal of documentary evidence in the light of the aforesaid report submitted by the Commissioner as well as the Committee constituted by him appears to be in consonance with the various previous orders passed by the various authorities and the report is supported by the documentary evidence available on record.
8. In view of the aforesaid report, now it has come to the conclusion that private respondent No.3 has been lawfully allotted the land admeasuring 55240 sq. meters in final plot No.13 and the private respondent No. 3 has only demarcated the aforesaid land and he has not made any construction beyond the land allotted to Page 5 of 6 C/WPPIL/340/2013 JUDGMENT him as per the aforesaid report. Consequently therefore, there appears no necessity to issue any direction as sought for by the present petitioner for issuance a writ of mandamus.
9. In the result, the allegation levelled against the private respondent No.3 for alleged allotment as well as encroachment appears to be ill-founded and could not be established by the present petitioner. This Writ Petition in the nature of Public Interest Litigation fails and accordingly, stands dismissed. Notice is discharged. There shall be no order as to costs.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) Ashish Tripathi Page 6 of 6