Gujarat High Court
Virambhai vs State on 29 September, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/15433/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15433 of 2010
=========================================================
VIRAMBHAI
HARJIBHAI DESAI & 11 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PR NANAVATI for
Petitioner(s) : 1 - 12.
GOVERNMENT PLEADER for Respondent(s) :
1,
(MR RM CHHAYA) for Respondent(s) : 2 - 3.
HL PATEL ADVOCATES
for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/02/2011
ORAL
ORDER
By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order and/or direction, quashing and setting aside the impugned order / communication dtd.27/9/2010 produced at Annexure-A and thereby restrain the respondent NO.2 - corporation from taking any coercive steps for demolishing the property in question.
At the outset, it is reacquired to be noted that the properties of the petitioners in question is going under road widening for construction of 100 feet wide Road. It is also required to be noted that the said public strict was declared after following due procedure under the provisions of the Bombay Provincial Municipal Corporation Act, 1948(hereinafter referred to as "the BPMC Act" for short), more particularly under sections 210 and 212 of BPMC Act. It appears that the respective petitioners were served with the notices under section 212(1) of the BPMC Act and the same came to be challenged by the petitioners by way of Special Civil Application No. 12442 of 2009, The said Special Civil Application came to be disposed of by his Court vide order dtd.6/8/2010 and the learned advocate appearing on behalf of the respective parties agreed that the respondents petitioners shall appear before the appropriate authority in pursuance of the notice issued under section 212(2) of the BPMC At and the said notice dtd.25/9/2009 shall be treated as Show Cause Notice for prescribing road line under section 210(1)(a) of the BPMC Act while widening the road in question and the respective petitioners were to appear before the Commissioner, Ahmedabad Municipal Corporation for hearing on 6/9/2010, as held by the the Division Bench of this court in the case of Killol V. Shelat Vs. Municipal Corporation of City of Ahmedabad and Another, reported in 2009(1) GLH 13 and thereafter the Commissioner, Ahmedabad Municipal Corporation was directed to pass appropriate order with respect to prescription and/or widening of the road line in question as per sec 210(1)(a) of the BPMC Act, after considering the submission / suggestion / objection that may be made on behalf of the petitioners. It was also agreed that on behalf of all the petitioners only one of the petitioners shall appear before the Commissioner, Ahmedabad Municipal Corporation for and on behalf of all the petitioners. This Court also directed that the aforesaid exercise shall be completed and appropriate final order shall be passed by the Commissioner, Ahmedabad Municipal Corporation on or before 30/9/2010 and thereafter Ahmedabad Municipal Corporation shall follow procedure under secs.211 to 216 of the BPMC Act on the basis of the decision that will be taken by the Commissioner, Ahmedabad Municipal Corporation. It appears that thereafter one of the petitioners appeared before the Commissioner, Ahmedabad Municipal Corporation and after considering the submissions/objections/suggestions made on behalf of the respective petitioners, the order dtd.27/9/2010 came to be passed, which is a reasoned and speaking order, observing that looking to the increase in the traffic and considering the Revised Development Plan, road in question is required to be widen. Being aggrieved by and dissatisfied with the impugned order / communication dtd.27/9/2010, the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India.
Mr.P.R. Nanavati, learned advocate appearing on behalf of the petitioners has mainly made only one submission to give alternative accommodation to the petitioners as the residential houses of the petitioners are going for widening of the road. Mr.Nanavati, learned advocate appearing on behalf of the petitioners has further submitted that as the residential houses of the petitioners are going for widening of the road, Ahmedabad Municipal Corporation is required to give alternative accommodation to the petitioners and unless and until alternative accommodation is provided, it is requested to restrain the Ahmedabad Municipal Corporation from implementing the impugned order / communication dtd.27/9/2010 and/or from widening the road in question.
Mr.Nanavati, learned advocate appearing on behalf of the petitioners has further submitted that as such the action of the respondents in prescribing the road from the property in question is malafide inasmuch as the same is with a view to save the property which is on the other-side of the road. Therefore, it is requested to quash and set aside the impugned communication dtd.27/9/2010.
Having heard the learned advocates appearing on behalf of the respective parties it is not in dispute that the property in question is going for widening of the road after following due procedure as required under sections 210 to 212 of the BPMC Act. It is required to be noted that the public street is prescribed under sec.210 of the BPMC Act, after following due procedure and after giving an opportunity to the petitioners. It is required to be noted that as such the prescription of the street and widening of the road is not challenged by the petitioners. Even otherwise, considering the impugned order dtd.27/9/2010 it appears that there is a great need and necessity to widen the road looking to the increase in traffic and traffic problem. It also appears that except the property in question / road in question, the entire road is widened, except the small patch with respect to the property of the petitioners. Considering the material on record and overall facts and circumstances of the case and the impugned order, which is a reasoned and speaking order, it appears that no illegality has been committed by the Commissioner, Ahmedabad Municipal Corporation while passing the impugned order dtd.27/9/2010 in prescribing the public street / road in question under section 210 of the BPMC Act.
So far as the allegation of malafide made by the learned advocate appearing on behalf of the petitioners is concerned, it appears that those persons against whom allegations of malafide are made, are not party to the present proceedings before this Court. Even otherwise, looking to the Map produced on record, it appears that there is no substance in the allegations. Even otherwise, it is ultimately for the appropriate authority to prescribe road after following due procedure.
Now, so far as the main contention on behalf of the petitioners that they may be provided alternative accommodation is concerned, learned advocate appearing on behalf of the petitioners is not in a position to show any policy of the Ahmedabad Municipal Corporation to allot alternative accommodation to the petitioners to those persons whose properties are going for widening of the road. As such there is no policy of the Ahmedabad Municipal Corporation to allot alternative accommodation to those persons whose properties are going for widening of the Road. Those persons are entitled to compensation under the provisions of the BPMC Act only. Even the learned advocate appearing on behalf of the petitioners is not in a position to point out any policy of the Ahmedabad Municipal Corporation with respect to providing alternative accommodation to those persons whose properties / lands are going for widening of the road. However, the learned advocate appearing on behalf of the petitioners has submitted that as there is policy of the Government to allot accommodation to slum dwellers, the petitioners who are in legal occupation, are on better footing and therefore, they should be allotted alternative accommodation.
The aforesaid contentions raised on behalf of the learned advocate appearing on behalf of the petitioners cannot be accepted. If there is any policy for proving alternative accommodation to the persons whose properties / lands are going for widen of the road, then and then only directions can be issued for providing alternative accommodation. In absence of any policy to provide alternative accommodation, Court cannot issue such direction for providing alternative accommodation to the petitioners, merely because their properties are going for widening of the road. The petitioners cannot be equated with the slum dwellers, who have no shelter at all. In absence of such policy, directions for providing alternative accommodation cannot be issued, otherwise wherever the properties are going for widening of the road, Corporation has to give alternative accommodation, which is not possible at all. As stated above, the petitioners are entitled to compensation under the provisions of the BPMC Act only.
As the impugned action of the respondent - Ahmedabad Municipal Corporation of widening of the road is in accordance with the provisions of the BPMC Act and after following the mandatory procedure as required under the provision of the BPMC Act and as the property of the petitioners is needed for widening of the road so as to solve the traffic problem and considering the fact that entire road is widened except the road covered under the present petition in question / property of the petitioners and since the impugned action fo the respondent Corporation of widening of the road is for the public purpose, no interference is called for. The impugned action of the respondent Corporation is just, legal and in accordance with the provisions of the BPMC Act. In view of the above, no interference of this Court in exercise of this Court under Article 226 of the Constitution of India is called for.
In view of the above and for the reasons stated above there is no substance in the present petition which deserves to be dismissed and is accordingly dismissed.
[M.R. SHAH, J.] rafik Top