Gujarat High Court
Michal Albert Desai vs State Of Gujarat & on 18 March, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
MICHAL ALBERT DESAI....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/2702/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2702 of 2013 ================================================================ MICHAL ALBERT DESAI....Petitioner(s) Versus STATE OF GUJARAT & 4....Respondent(s) ================================================================ Appearance: BALKRISHNA ACHARYA, ADVOCATE for the Petitioner(s) No. 1 MRS PC FERNANDEZ, ADVOCATE for the Petitioner(s) No. 1 MR KASHAYAP PUJARA, AGP for the Respondent (s) No.1 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 18/03/2013 ORAL ORDER
The present petition has been filed by the petitioner under Articles 14, 16 and 226 of the Constitution of India, on the grounds stated in the memo of petition. The prayers sought for in the petition are as under:
(A) Your Lordship may be pleased to admit this Special Civil Application.
(B) Your Lordships may be pleased to issue appropriate Writ, order or direction directing the respondents to take appropriate positive actions considering the representation made to the respondents vide correspondence made as per Annexture A collectively...
(C) Your Lordships may be pleased to grant interim relief in form of injunction directing respondent no.5 to maintain status-quo for further construction of Ashirwad building to prevent hidden activities by respondent No.5.
(D) Your Lordships may be pleased to grant further direction/order which may deem fit in the interest of justice.
(E) Any other and further relief as may be deemed fit, be awarded.
The facts of the case briefly summarized are that the petitioner is the resident of New Ranipur where the Christean community is also residing. One Manilal Vishvas, who died leaving behind the son Chunilal alias Victor Desai and Bhanumati, wife of Jeorge Desai and the other heirs as stated in the pedigree at Annexure-B. It is stated that the petitioner and others are residents of Village having their plots in Survey Nos.187, 189 and therefore they have common interest. It is contended that Survey Nos.187, 189, 187/1 to 4 and 189/1 to 4 have been sold by the respective owners Kusum Romel Desai and Clement Victor Desai to Ashirvad Charitable Trust and Paul and Emmanuel on 26.03.2010 and 06.04.2010. It is contended that Respondent No.5, Managing Director of the Ashirvad Charitable Trust, who has crated noise pollution by playing music and other hidden activities are also doubtful. It is, therefore, contended that the people leaving in the Ashram are from outside State and the present building is covered from all direction in such a manner that no man can make out even by peeing as to what activities are going on behind the wall. The petitioner has stated that the Church of North India (CNI) and other residents of Navi Ranipur Village have ventilated their grievances to Respondent Nos. 1 to 4 Authorities and they have not replied to their application. It is also contended that the Respondent No.5 has started constructions of new building and it has reach up to plinth level and the Municipal Corporation has not disclosed any information under RTI Act. It is, therefore, contended that maintaining of Rule of law, is a prime duty of respondent authorities jointly and severally, they cannot and should not shirk the responsibilities as they have failed to take necessary actions, the citizens have no any option but to approach the judicial Forum to obtain reliefs and seek justice. It is specifically contended that This type of approach does not reflect transparity of administration of democratic infrastructure where in every authority has their independent entity have to act jointly and severally when there is a question of rule of law. If they fail, the citizens hae no any option but to approach the judicial Forum to obtain reliefs and seek justice. Therefore, the present petition has been filed for aforesaid prayers.
Heard learned Counsel Shri Balkrishna Acharya for the petitioner and learned AGP Shri Kashayap Pujara for Respondent No.1-State.
Learned Counsel Shri Balkrishna Acharya refers to the papers at length and has tried to submit that prayers as prayed for may be granted.
Though the submissions have been made referring to the papers, there are two aspects which are required to be considered. The prayer C refers to the prohibition regarding construction activity of Respondent No.5 and also granting status quo to prevent so called hidden activities of Respondent No.5. The aspect of unauthorized construction can be taken care by the Municipal Corporation and there is nothing on record to show that any unauthorized construction is being made or there is any violation of building by-laws or the Rules. Similarly, what would constitute hidden activities is any body's guess and mere saying or raising any doubt about a trust like Respondent No.5 cannot be a matter which would call for any interference of the High Court under Article 226 of the Constitution of India as stated above. In fact, as a democratic secular country, there could not be any interference with the activities or the religious faith and the activities of any community unless such activities are either prohibited or are contrary to any public law and order or public interest. The submissions about nuisance cannot be readily accepted and if there is any such nuisance or apprehension about the nuisance, it could be a matter of appreciation of evidence before the Trial Court. Therefore, the aspect of nuisance of noise pollution or any other nuisance, the petitioner can have alternative remedy/ recourse by filing an appropriate complaint before the Court of Magistrate. Section 268 of the Indian Penal Code, provides that:
Public nuisance- A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
Further, if there is any nuisance or any other inconvenience like occupants of premises having the right to pass from the premises of Respondent No.5(Ashram)- the easementary right, any such remedy could be availed and it could be examined by the Trial Court.
Therefore, without any such record, such a petition cannot be entertained under Article 226. Further, it will be open for the petitioner to make necessary complaint before the Court of Magistrate or to the Competent Court, as may be advised, and as and when such complaint or application is made, it may be considered, after providing opportunity of hearing to the other side, on the basis of material and evidence.
Therefore, at this stage, without any material, which requires for appreciation of evidence or the details, the present petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed in limine.
(RAJESH H.SHUKLA, J.) Tuvar Page 6 of 6