Gujarat High Court
Ranjanaben Hairshbhai Dwivedi vs Harshadbhai Ishvarlal Kiri on 9 February, 2021
Equivalent citations: AIRONLINE 2021 GUJ 760
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/LPA/201/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 201 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 12887 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 201 of 2021
With
R/LETTERS PATENT APPEAL NO. 210 of 2021
In SPECIAL CIVIL APPLICATION NO. 12887 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 210 of 2021
In SPECIAL CIVIL APPLICATION NO. 12887 of 2020
==========================================================
RANJANABEN HAIRSHBHAI DWIVEDI
Versus
HARSHADBHAI ISHVARLAL KIRI
==========================================================
Appearance:
Letters Patent Appeal No.201 of 2021
MR YATIN OZA FOR MR. MN MARFATIA(6930) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,
25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,4
7,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,7,9
MR MAULIN RAVAL, SENIOR ADVOCATE WITH MR RITURAJ M MEENA(3224)
for the Respondent(s) No. 24
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS VENU H NANAVATY(7458)
for the Respondent(s) No. 8
MR ANUJ TRIVEDI for the respondent Ahmedabad Municipal Corporation
Letters Patent Appeal No.210 of 2021
MR JJ YAJNIK for the Appellant(s) No. 1 - 19
MR MAULIN RAVAL, SENIOR ADVOCATE WITH MR RITURAJ M MEENA(3224)
for the Respondent(s) No. 24
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS VENU H NANAVATY(7458)
for the Respondent(s) No. 8
MR ANUJ TRIVEDI for the respondent Ahmedabad Municipal Corporation
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 09/02/2021
COMMON ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH) Page 1 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER
1. We have heard Shri Yatin Oza, learned counsel along with Shri M.N.Marfatia, learned counsel for the appellants in Letters Patent Appeal No.201 of 2021, Shri Jayant Yajnik, learned counsel for the appellants in Letters Patent Appeal No.210 of 2021, Shri Anshin Desai, learned Senior Advocate assisted by Ms.Venu Nanavaty, learned counsel appearing for the original writ petitioners (respondents in both the appeals) and Shri Maulin Raval, learned Senior Advocate assisted by Shri Rituraj Meena, learned counsel appearing for the respondent Gujarat Housing Board and Shri Anuj Trivedi, learned counsel appearing for the Ahmedabad Municipal Corporation.
2. Special Civil Application No.12887 of 2020 filed by one Harshadbhai Ishvarlal Kiri and others praying for the following reliefs :
"(A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships 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 to respondent No.2 - Gujarat Housing Board to execute and implement the notices/orders dated 18/19.06.2019, 01.11.2019, 10.02.2020 issued by the Gujarat Housing Board -
respondent No.2 (AnnexureA,B,C,D,E,F) in the interest of justice;
Page 2 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER (C) Your Lordships 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 to the respondent No.1 Ahmedabad Municipal Corporation and respondent No.2 Gujarat Housing Board to take action of removal/demolition of illegal construction as per the Notices/orders dtd. 14.08.2020 and 19.08.2020 issued by the Gujarat Housing Board for removal of illegal construction made/constructed by the private respondents in the interest of justice;
(D) Your Lordships may be pleased to direct the respondents No.1 and 2 for implementing and processing the Scheme for redevelopment of Anand Vihar Society situated at Final Plot NO.48 (T.P.Scheme No.31) village: Vastrapur, Taluka:
Vejalpur, District: Ahmedabad admeasuring 4319 sq.mtrs. as per the decision of the respondent No.2 - Gujarat Housing Board and as per the letter of Acceptance dtd. 21.06.2019 in the interest of justice;
(E) Pending admission, hearing and final disposal of the petition Your Lordships may be pleased to direct the respondent No.2 - Gujarat Housing Board to immediately implement the notices within a time frame and take appropriate steps to evict and vacate the private respondents so as to effectively implement the redevelopment project of Anand Vihar Society in the interest of justice;
(F) Your Lordships may be pleased to pass such other and further relief or relieves as may be deem fit, just and proper, in the facts and circumstances of the case;"
3. The petition was filed in October, 2020 and the first order appears to have been passed on 23.10.2020. Later on notices were also issued. The private respondents as also the Gujarat Housing Board Page 3 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER and the Ahmedabad Municipal Corporation appeared before the learned Single Judge. By an order dated 02.02.2021, the learned Single Judge as an interim measure issued the following directions as contained in paragraphs6, 7 and 8, which are reproduced hereunder :
"6. In that view of the matter, the respective respondents are given time to demolish the construction within a period of one week, failing which, the respondent No.1 Ahmedabad Municipal Commissioner is directed to initiate the proceedings under the provisions of the Gujarat Provincial Municipal Corporation Act, 1949 to remove the illegal construction with the help of the Police.
7. In such circumstances, the respondents Gujarat Housing Board as well as the Ahmedabad Municipal Corporation is directed to take appropriate action for removal of the illegal construction put up by the respective respondents in accordance with law if such illegal construction is not removed by them.
8. Stand over to 15th February, 2021, for compliance of this order."
4. The present two Letters Patent Appeals have been filed by some of the private respondents in the Special Civil Application. We have heard the matter in great detail not only on the challenge to the order impugned passed by the learned Single Judge but also on various other aspects touching the merits of Page 4 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER the main matter before the learned Single Judge which is still pending. However, we refrain to go into those issues. The interest of justice would be best served if the order of the learned Single Judge is modified to a certain extent.
5. From the facts as alleged in the petition, the documents filed in support of the petition and also from the affidavits exchanged between the parties and the documents filed along with it, it appears that apparently the actions initiated by the Gujarat Housing Board which finds covered by the Special Civil Application relates to 16 commercial constructions having been raised completely without authority that is without any sanction, illegally and unauthorizedly. The proceedings for removal of those constructions are continuing since June, 2019, whereafter at least five times notices have been issued for such removal. One of the reliefs claimed before the learned Single Judge was for appropriate directions to the Gujarat Housing Board to ensure and implement its orders and notices and also the communications to the Municipal Corporation and the Police Department. The learned Single Judge initially Page 5 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER granted 7 days time to the respondents to remove their constructions and thereafter if they are not removed, the Gujarat Housing Board as also the Ahmedabad Municipal Corporation are directed to take appropriate action for removal of the illegal constructions put up by the respective respondents in accordance with law, if such illegal constructions are not removed by them. The matter has been posted for 15.02.2021 for compliance of this order. The apprehension expressed by the learned counsels for the appellants apart from other is that under the directions issued by the learned Single Judge which too as an interim measure the Gujarat Housing Board as also the Ahmedabad Municipal Corporation may proceed to demolish any and every unauthorized and illegal constructions found by them within the society and the said directions may be used by them in a blanket manner may be even where no notices have been issued or actions have been taken by them earlier. One of the grounds strongly urged is that the relief granted by the learned Single Judge is a final relief granted at an interim stage which also could not have been done under law.
Page 6 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER
6. On the other hand, the learned Senior Counsels appearing for the respondents have vehemently urged that the present appellants have been violating law to their own advantage and despite repeated opportunities given to them they have neither removed the constructions nor have challenged the notices at any stage. It has been pointed out that one such petition challenging one of the notices or such action for removal of constructions was filed, but it had failed. It is also submitted that if such admitted unauthorized constructions are not allowed to be removed, it would become very difficult for the administration to control any rampant and illegal constructions at the hands of such unscrupulous litigants.
7. Mr.Yatin Oza along with Mr.M.N.Marfatia (Letters Patent Appeal No.201 of 2021) and Mr.Jayant Yajnik (Letters Patent Appeal No.210 of 2021) learned counsels for the appellants have given their consent for this order to the extent they are representing the 09 alleged violators mentioned in the 16 notices. Shri Oza and Shri Marfatia represent 8 of such alleged violators namely appellants Nos.1, 2, 4, 5, Page 7 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER 6, 7, 8 and 11 in Letters Patent Appeal No.201 of 2021, whereas Shri Yajnik represents one such alleged violator namely appellant No.3 in Letters Patent Appeal No.210 of 2021.
8. Without going into these questions as already observed above, the interest of the parties would be best served if such illegal and unauthorized constructions now that since they are existing contrary to law, may not be allowed to be used by the alleged violators - appellants (nine in number). However, we make it clear that such sealing of properties would confine to the illegal and unauthorized constructions as have been indicated in the notices of 09 appellants referred to above. The Gujarat Housing Board may proceed to carry out such exercise of sealing of such properties mentioned above.
9. The Gujarat Housing Board may take appropriate support from the District Administration which shall be duly extended by the Ahmedabad Municipal Corporation as also by the Police Commissioner, Page 8 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER Ahmedabad, if there is any resistance by any of the parties and as and when requested by the Board.
10. The above order of sealing is confined to these 9 appellants regarding their constructions as mentioned in the notice. Rest of the 7 alleged violators who have been issued notices, the Gujarat Housing Board is free to proceed with the compliance of the directions issued by the learned Single Judge. Beyond the 16 notices, the Gujarat Housing Board will ensure that it does not touch the construction of any other person whether impleaded or not impleaded to the present proceedings pursuant to the interim directions of the learned Single Judge. Shri Anuj Trivedi, learned counsel for the Ahmedabad Municipal Corporation has only submitted that it is Gujarat Housing Board which has to carry out the implementation of this order, however, the Ahmedabad Municipal Corporation would extend all cooperation and support to the Gujarat Housing Board.
11. The above observations are only with respect to the directions issued by the learned Single Judge for the compliance of the Gujarat Housing Board to be Page 9 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021 C/LPA/201/2021 ORDER submitted on 15.02.2021. We make it clear that other than that the Gujarat Housing Board may continue with implementation of its notices and orders with respect to matters not covered by the petition.
12. To the above extent, the order of the learned Single Judge stands modified. The matter will be taken up before the learned Single Judge on 15.02.2021 as already indicated in the order impugned. The Gujarat Housing Board would be filing its compliance affidavit before the learned Single Judge. Both the appeals stand disposed of. Consequently, the connected Civil Applications stand disposed of.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) GAURAV J THAKER Page 10 of 10 Downloaded on : Thu Feb 11 00:54:24 IST 2021