Gujarat High Court
Kanubhai Jashubhai Vala vs Commissioner & on 25 September, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2422/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2422 of 2014
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KANUBHAI JASHUBHAI VALA....Petitioner(s)
Versus
COMMISSIONER & 1....Respondent(s)
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Appearance:
MR BHAVESH J PATEL, ADVOCATE for the Petitioner(s) No. 1
MR MAHESHB BARIYA, ADVOCATE for the Petitioner(s) No. 1
MR. RADHESH Y VYAS, ADVOCATE for the Petitioner(s) No. 1
MR.YOGESH M VYAS, ADVOCATE for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/09/2014
ORAL ORDER
When the matter is called out, learned advocate for the petitioner is not present. Any request for adjournment or pass over is also not made. It is informed that any leave note or sick note is also not filed.
Mr. Chhaya, learned advocate for the respondent Nos.1 and 2, is present.
2. In present petition, the petitioner has prayed, inter alia, that:-
"10(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, Page 1 C/SCA/2422/2014 ORDER direction or order in the nature of mandamus for restraining the Municipality from evicting and removing the shelter of the petitioner.
(C) Your Lordships may be pleased to issue the direction to the respondents for providing Housing accommodation to the petitioner.
(A) Grant the interim relief by staying the execution, implementation and operation of the notice at Annexure-B, pending admission till final disposal of this petition."
3. After hearing the petitioner, the Court passed the order dated 14.2.2014. Under the said order, certain protection is granted in favour of the petitioner. The said order is continued until now. However, thereafter, the petitioner has not conducted the matter on merits, though the respondent Corporation has filed affidavit dated 13.3.2014.
4. At this stage, it may be mentioned that on 16.9.2014, this Court had, having regard to the fact that after the respondents filed the affidavit, the petition is not being conducted on merits, observed and recorded in the order dated Page 2 C/SCA/2422/2014 ORDER 16.9.2014 that:-
"At the request of learned counsel for the petitioner, hearing is adjourned. As a last chance time is granted. S.O. to 25.09.2014.
Ad-interim relief, if any, will continue till then."
5. Mr. Chhaya, learned advocate for the respondent Nos.1 and 2, relied on the details mentioned in the affidavit dated 13.3.2014, more particularly the details mentioned in paragraph Nos.4 and 5 wherein the respondent Corporation has averred, inter alia, that:-
"4. At the out set, it is submitted that the petitioner has not approached this Hon'ble Court with clear hands and the petitioner has wrongly contended before this Hon'ble Court that the petitioner is occupying the dwelling unit in question from last 30 years. As can be seen from record, on 30.07.2013, the answering respondent had issued notice to the petitioner for removal of its encroachment from final plot 283 of Town Planning Scheme No.38 (Thaltej). It is submitted that in response to such notice dated 30.07.2013 (p.18) on 13.08.2013, the petitioner had made representation to the Dy. Estate Officer wherein it was specifically stated that the petitioner was occupying the premises in question from last 5 years. Copy of representation / letter dated 13.08.2013 submitted by the petitioner is annexed Page 3 C/SCA/2422/2014 ORDER and marked as Annexure R1 to present affidavit. Thus, in view of above it would become clear that the petitioner has not approached this Hon'ble Court with clean hands, therefore, present petitioner under Article 226 of Constitution of India is required to be rejected in limine.
5. I say and submit that as per the provisions contained in Gujarat Town Planning and Urban Development Act, 1976 (herein after referred to as the Act) r.w. Gujarat Town Planning and Urban Development Rules, 1979 (herein after referred to as the Rules), the State Authority had sanctioned draft Town Planning Scheme No.38 (Thaltej) vide notification dated 06.02.2003. It is further submitted that after following due procedure of law as contemplated under the Act r.w. The Rules, preliminary Town Planning Scheme No.38 (Thaltej) was sanctioned by the State Government vide its notification dated 11.06.2009. It is submitted that as per the redistribution and valuation statement of Town Planning Scheme No.38 (Thaltej), the land in question was allotted final plot No.283 admeasuring 1310 sq. mtr. in favour of Ahmedabad Municipal Corporation for reservation of open space. Thus, it is evident from record that the land bearing final plot No.283 (the land in question) is reserved for public purplose and the same is allotted to Ahmedabad Municipal Corporation under the sanctioned preliminary Town Planning Scheme. Copies of redistribution and valuation statement along with part plan of final plot 283 are annexed and marked as Annexure R2 colly. to present affidavit."
Page 4 C/SCA/2422/2014 ORDER
6. Mr. Chhaya, learned advocate for the respondent Nos.1 and 2, relied on the document dated 13.8.2013 (Annexure R1 to the petition) and submitted that though the petitioners have mentioned in the petition that they are occupying the plot in question since last 13 years, in the said document dated 13.8.2013, the said persons have expressly stated and admitted that they have occupied the land in question since last five years.
7. On perusal of the said document dated 13.8.2013, it is noticed that the petitioner requested the respondent authority to make some alternative arrangement.
8. In this context, Mr. Chhaya, learned advocate for the respondent Nos.1 and 2, referred to and relied on the details mentioned in paragraph No.6 of the affidavit dated 13.3.2014, which reads thus:-
"6. It is submitted that as per provisions Page 5 C/SCA/2422/2014 ORDER contained in the Act r.w. The Rules, answering respondents are entitled to vacant and peaceful possession of final plot No.283 and the land of final plot 283 vested in the appropriate authority viz. respondent- Authority free from all encumbrances. It was surfaced that the petitioner has constructed small kaccha unit within final plot No.283 and therefore, notice was issued on 30.07.2013. However, in view of representation dated 23.08.2013, respondent - Authorities have not acted for removal of encroachment of the petitioner as monsoon period was going on. It is evident from record that the petitioner is encroacher and there is no vested rights whatsoever of the petitioner to continue with occupation of the final plot which is reserved for public purpose in favour of the answering respondent. It is submitted that the petitioner has no right to continue with the illegal occupation on the land of final plot No.283 which is allotted to answering respondent under the preliminary Town Planning Scheme. It is submitted that if the petitioner approaches the answering respondent with proper Application along with supporting documents, case of the petitioner can be considered for alternative accommodation in tune with prevailing policy of the State Government as well as prevailing policy of the answering respondent. However, the petitioner cannot be permitted to occupy the premises till his case for alternative accommodation is considered. At the cost of repetition, it is submitted that as per prevailing policy of the State Government as well as answering respondent, Page 6 C/SCA/2422/2014 ORDER if petitioner is entitled to any alternative accommodation, answering respondent shall consider case of the petitioner accordingly. Copy of one such policy which entitles such encroachers for alternative accommodation is annexed and marked as Annexure R3 to present affidavit."
9. According to the learned advocate for the respondent Corporation, if the concerned person approaches the respondent Corporation with appropriate application / request for alternative arrangement, then, the respondent Corporation is ready and willing to consider such request under any existing Scheme.
10. In that view of the matter, it is always open to the petitioner to approach the respondent Corporation with request for alternative arrangement and the respondent Corporation may consider such request in accordance with regulations and existing policy.
11. Any counter affidavit disputing the details mentioned by the respondent Corporation in the reply affidavit, more particularly in paragraph Page 7 C/SCA/2422/2014 ORDER Nos.5 and 6 is not filed by the petitioner.
12. As mentioned earlier, the said affidavit came to be filed in March-2013, however, thereafter neither any counter is filed nor the matter is conducted on merits.
13. Today also, learned advocate for the petitioner is not present. Any dispute with regard to the details mentioned in the affidavit is not raised.
14. It is not in dispute that the petitioners are in unauthorized occupation of land in question. Of course, the petitioners claim that they are in occupation of the land since very long time. However, the respondents have disputed and denied such claim, and that too in light of the letter/statement by the petitioners. In this view of the matter, present petition is disposed of with below mentioned observations:-
14.1 It will be open to the petitioner to Page 8 C/SCA/2422/2014 ORDER approach the respondent Corporation with appropriate request / application for alternative arrangement.
14.2 The respondent Corporation will consider such request in accordance with applicable rules and policy and take necessary decision and action expeditiously upon receipt of such application / request.
14.3 It is clarified that since present order is passed in absence of learned advocate for the petitioner, if the petitioner seeks any modification in the order, it would be open to the petitioner to take out appropriate application.
With aforesaid observations, present petition stands disposed of. Ad-interim relief is vacated.
(K.M.THAKER, J.) kdc Page 9