Ansari Nasimabanu Zakira vs Ahmedabad Municipal Corporation on 22 January, 2020

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Gujarat High Court

Ansari Nasimabanu Zakira vs Ahmedabad Municipal Corporation on 22 January, 2020

Bench: A.G.Uraizee

         C/SCA/11731/2019                                           ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/SPECIAL CIVIL APPLICATION NO. 11731 of 2019
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                             ANSARI NASIMABANU ZAKIRA
                                          Versus
                       AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
for the Petitioner(s) No. 10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
MR ARPIT P PATEL(5497) for the Petitioner(s) No. 1
CHINTAN K GANDHI(8600) for the Respondent(s) No. 1,2
RAVAL AND TRIVEDI ASSOCIATES(9262) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
                    Date : 22/01/2020
                     ORAL ORDER

1. In this petition under Article 226 of the Constitution of India the petitioners made the following substantive prayers: "10 B. This Hon'ble Court may kindly be pleased to declare that the action of closer of the windows of the petitioners' houses by the respondent corporation are illegal, without competence and authority and in violation of principal of natural justice and in violation of the provision of Article 14 and 21 of the Constitution of India and further be pleased to direct the respondent corporation to open the said windows of the petitioners' houses."

2. In this petition, the petitioners have challenged the action of closer of the windows of the houses of the petitioners by the respondent as being illegal, without competent authorities and in violation of principal of natural justice and Articles 14 & 21 of the Constitution of India. They have also prayed that the respondent Corporation may be directed to open the windows Page 1 of 4 Downloaded on : Mon Feb 17 06:42:49 IST 2020 C/SCA/11731/2019 ORDER of the houses of the petitioners.

3. Heard Ms. Arpit P. Patel, learned advocate for the petitioner and Mr. Maulin Raval, learned senior counsel assisted by Mr. Chintan K. Gandhi, learned advocate for Raval and Trivedi Associates for the respondents.

4. Mr. Patel, learned advocate for the petitioners has submitted that the respondents have closed the windows without giving any notice and opportunity of hearing to the petitioners, and therefore, the action is in violation of principal of natural justice. He further submits that the windows are there since last 50 years which is the only sources of fresh air, light and ventilation and the closer of windows has deprived the petitioners from these basic requirements. He, therefore, submits that the petition needs consideration.

5. Mr. Maulin Raval, learned senior counsel has questioned the maintainability of the petition and submits that the petitioners have raised the question with regard to fresh air, light and ventilation which is an easementary right and the same cannot be decided in writpetition as disputed question of facts are involved. It is his further submission that the petitioners have made false submission in the petition inasmuch as Page 2 of 4 Downloaded on : Mon Feb 17 06:42:49 IST 2020 C/SCA/11731/2019 ORDER the petitioners were served with notices way back in the year 2016, and therefore, it cannot be said that an opportunity was not given to the petitioners. He further submits that the window put up by the petitioners are on common wall between the houses of the petitioners and Eve Flats, and hence, the windows are illegal, and therefore, they are closed by the respondents. He, therefore, submitted that as the disputed question of facts are involved and that the petitioners have suppressed the material facts, the petition does not require any consideration and deserves to be dismissed.

6. It is very clear from the photographs appended to the present petition that the windows are put in a wall erected on compound wall separating the houses of the petitioners and Eve Flats constructed by the respondents for weaker section. It is very difficult from the photographs to accept the submission of learned advocate for the petitioners that the windows existed since last 50 years. A bare reading of the petition makes it explicitly clear that the petitioners are asserting their easementary rights which the respondents who have sealed the windows are disputing. It is thus very clear that the assertion of easementary rights by the petitioners is a disputed question of fact which Page 3 of 4 Downloaded on : Mon Feb 17 06:42:49 IST 2020 C/SCA/11731/2019 ORDER cannot be gone into and considered by this Court in exercise of his powers under Article 226 of the Constitution of India. The petition, therefore, deserves to be dismissed at the threshold on this ground alone and is accordingly dismissed. Notice is discharged.

7. It is clarified that the observations made hereinabove are for the disposal of the present petition and the Court has not examined the merits of the case. If the petitioners take out any proceedings before the competent Court for assertion of their easementary rights, the same shall be decided in accordance with law on the basis of the oral and documentary evidence that may be adduced without being influenced by this Court.

(A.G.URAIZEE, J) Manoj Page 4 of 4 Downloaded on : Mon Feb 17 06:42:49 IST 2020

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