Gujarat High Court
Imityas Hussain (Barbar) vs State Of Gujarat on 22 February, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/5583/1995 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5583 of 1995
With
CIVIL APPLICATION NO. 10309 of 2017
In
SPECIAL CIVIL APPLICATION NO. 5583 of 1995
With
CIVIL APPLICATION NO. 10535 of 2017
In
SPECIAL CIVIL APPLICATION NO. 5583 of 1995
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IMITYAS HUSSAIN (BARBAR) & 20....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
DECEASED LITIGANT, ADVOCATE for the Petitioner(s) No. 6 - 7 , 10
MR MM SAIYED, ADVOCATE for the Petitioner(s) No. 1 - 2 , 6.1 - 6.4 , 7.1 -
7.4 , 9 , 10.1 , 11 - 14 , 16 , 18
MR RITESH B DAVE, ADVOCATE for the Petitioner(s) No. 21
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 3 , 5
MR DEEPAK P SANCHELA, ADVOCATE for the Respondent(s) No. 4
MR RN SHAH, ADVOCATE for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 22/02/2018
ORAL ORDER
The main matter being Special Civil Application No. 5583/1995 is filed by the petitioners under Articles 14, 19, 21 and 26 of the Constitution of Page 1 of 7 C/SCA/5583/1995 ORDER India as well as under the Gujarat Municipalities Act and also Bombay Land Revenue Code praying interalia that appropriate writ, direction or order, may be issued declaring the apprehended action of the respondents to demolish the construction of cabins/shops of the petitioners in the lands in question situated at Station road, Ankleshwar as illegal and also declaring that such action is against the principles of natural justice. Further it is prayed that respondents no. 2 and 4 may be directed to allot/regularise the lease of the said land to the petitioners concerned by exercising the powers under section 65 of the Gujarat Municipalities Act and also for the interim prayers.
2. Civil Application No. 10309/17 is filed seeking prayer to amend the name of the petitioner no. 8 in SCA No. 5583/1995 from Harivadan Thakorlal to Naresh Thakorlal Dadhalwala on the ground stated in the application.
3. Similarly Civil Application No. 10535/2017 is filed by the applicant to bring on record the heirs of the deceased original petitioner no. 19 in SCA 5583/95.
Page 2 of 7 C/SCA/5583/1995 ORDER4. When these matters have been listed and as main matter is of 1995, the main matter itself was taken up for hearing.
5. An affidavit-in-reply has been filed by the respondent Municipality and it has been clearly stated that it is on lease but the liecense was granted temporarily which has not been renewed for many years. It is also contended that the petitioner cannot have any right to occupy the street land and therefore, the present petition may not be entertained.
6. Heard Shri Saiyed, learned advocate for some of the petitioners as well as the some of the applicants and Shri Bhargav Pandya, learned Assistant Government Pleader.
7. Shri Saiyed, learned advocate referred to the documents and the facts and submitted that the original petitioners have been allotted cabins by the Municipality by passing a resolution and they have been making the payment of rent. He, therefore, submitted that the petitioner could not have been removed by the impugned action without providing any opportunity. He has also referred to the papers Page 3 of 7 C/SCA/5583/1995 ORDER including the receipts placed on record regarding the payment of liecense fees. He referred to Section 146 (1) of the Municipalities Act and submitted that it empowers the Municipality to lease the street land subject to the conditions and it has been granted and renewed from time to time. Shri Saiyed, learned advocate, therefore, submitted that the construction which has been made is Kachchha construction and the petitioners could have been accommodated, and therefore, the present petition may be allowed. He submitted that the aforesaid two Civil Applications have been filed on the ground that in one application ie CA 10309/17 the name of the petitioner no. 8 is not mentioned correctly and in another Civil Application No. 10535/2017, the heirs of the original petitioner No. 19 are required to be brought on record.
8. Learned advocate Shri Saiyed, referred to the judgement of the Hon'ble Division Bench of the High Court of Gujarat in Raghavbhai Arjanbhai and Another Vs Amreli Nagarpalika and another reproted in 1994(1) G.L.H 470, submitted that the possession of the property once handed over it could not be recovered without due process of law.
Page 4 of 7 C/SCA/5583/1995 ORDER9. The submission made by learned advocate for the petitioner is required to be considered as much water has flown because once it is found to be street land, no one can claim it as a matter of right. Therefore, even if when there was no congestion and some cess permitted by the liecense by the municipality, it cannot have perpetual existence. There cannot be a vested right to continue for all times to come. In fact the conditions of license clearly provide that it is yearly subject to the renewal from year to year. It is also stated that the Municipality could cancel the license at any time. Meaning thereby, even during the subsistence of period of license, it could be cancelled.
10. Another judgment which is sought to be relied upon in the case of Calcutta Discount Co. Ltd Vs Income Tax Officer, Companies District I, calcutta and another reported in AIR 1961 Supreme Court 372, would not have any application to the facts of the case. In the facts of the case, the land belonged to the Municipality and it is a street land which was granted by licensee to the original petitioners which they continued and the petition was filed in the year 1995 on apprehension of removal of buildings which itself suggest that how the judicial Page 5 of 7 C/SCA/5583/1995 ORDER process and the proceedings in the Court have been abused and misused by the petitioners. Therefore once the provisions of section 164 referred to "power regarding public street", the public street could also be brought on regular line by appropriate measures for improvement of any such public street. Therefore, it would vest in the Municipality and if temporary permit or liecense was given, it would not create any right in favour of persons like the petitioner.
11. It is well settled that when there is a conflict of public interest and the individual right, it may have to be compromised. In the facts of the case there is no such vested right with the petitioner at all and the public interest demand for improvement of the public street. Admittedly there is no renewal of licensee for many years and the petitioners have been enjoying the possession without any valid authoritiy or permission because of the pendency of the present petition and the interim relief.
12. In a similar case which has also been referred by Shri Saiyed, learned advocate, in Letters Patent Appeal No. 1063/2017 in Special Civil Application No. 4294/2017, the Hon'ble Division Bench ( Coram : Honourable the Chief Justice Mr. R. Subhash Reddy and Hon'ble Mr. Justice Vipul M. Page 6 of 7 C/SCA/5583/1995 ORDER Pancholi,J) dated 28.9.2017 has only granted time for vacating the said order which is also referred to by Shri Sanchela, learned advocate for the respondent. Therefore, in view of the order passed in similar matter being SCA 4294/2017 and when the petitioners have been occupying the stall for many years they cannot be allowed to continue merely because they have pursued such litigation. In fact it has been pursued as a beneficial exercise.
13. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. Interim relief stands vacated. In view of the order passed in the main matter SCA 5583/1995, no further order is required to be passed in both the Civil Application No. 10309/2017 and 10535/2017.
(RAJESH H.SHUKLA, J.) MARY Page 7 of 7