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Gujarat High Court

Ragini Santosh Iyer vs Vadodara Municipal Corporation ... on 25 August, 2022

    C/SCA/4482/2019                                     ORDER DATED: 25/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4482 of 2019
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                   RAGINI SANTOSH IYER
                          Versus
    VADODARA MUNICIPAL CORPORATION THROUGH MUNICIPAL
                      COMMISSIONER
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MS. JYOTI BHATT, AGP for the Respondent(s) No. 4,5,6
MR NILESH A PANDYA(549) for the Respondent(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Respondent(s) No. 7
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 25/08/2022
                                 ORAL ORDER

1. The present petition is filed by the petitioner challenging the impugned order issued by Vadodara Municipal Corporation and the petitioner has prayed, which is extracted herein below:

      "A)     admit this petition:

      B)      issue appropriate writ, order or direction and be pleased to quash

and set aside the illegal, illogical, discriminatory, arbitrary action of the respondent authorities of not taking any action of removal/demolition of illegal unauthorized construction carried-out upon the land of City Survey No. 333 and 334 belonging to respondent no.7 and be pleased to issue further directions upon the concerned authorities to remove/demolish the illegal construction carried-out upon the margin land of City Survey No.333 and 334 of the respondent no.7 as well as additional construction carried-out upon the portion of the land of the petitioner being Revenue Survey No.462/5 which was subsequently given City Survey No.339 to 342 may be ordered to be demolished at Page 1 of 5 Downloaded on : Fri Aug 26 20:57:43 IST 2022 C/SCA/4482/2019 ORDER DATED: 25/08/2022 the earliest;

C) issue appropriate writ, order or direction and be pleased to quash and set aside the Development Permission dated 24/1/2018 and the action of the respondent authorities of granting development permission, that too after construction came to be carried-out way back in 2013-14 may be declared as illegal against the Rules, regulations and the same may be quashed and set aside;

D) grant interim relief and by way of interim order be pleased to direct the respondent authority to take appropriate action for removal of illegal construction, pending admission and final disposal of this petition;

E) Pass such orders as thought fit in the interest of justice."

2. This Court has issued notice to the respondents vide order dated 01.03.2019.

3. After service of the notice, Respondent No.7 - Mohammed Juned Adam Tharadara has filed his affidavit-in-reply dated 08.05.2019 and has specifically contended that there is a provision under Section 54 of the Gujarat Town Planning & Urban Development Act and therefore, the petitioner has alternative remedy by way of appeal under the said provision.

4. The reply was served to the present petitioner also, but present petitioner has not filed any rejoinder to that affidavit-in-reply by disputing the contentions advanced by Respondent No.7.

C/SCA/4482/2019 ORDER DATED: 25/08/2022

5. Learned AGP Ms. Bhatt has also supported the case of respondent No.7 and has relied upon the judgment of the Division Bench of this Court passed in Letters Patent Appeal No.47 of 2012 dated 15.03.2012, more particularly para 3 thereof, which is as under:

"3. We have gone through the papers of petition along with civil application and affidavit-in-reply filed on behalf of respondent No.4 by which several sale deeds have been produced by which the appellant and respondent No.4 had purchased the part of property. Learned counsel for the respondent No.4 has also produced photographs along with the affidavit-in-reply which shows that no fresh construction is carried out by the respondent No.4 as alleged by the appellant. It appears from the photographs that the construction which has been alleged to have been made by the respondent No.4 is of a compound wall, and from the documentary evidence, it appears that the compound wall is constructed since 1981. By way of present petition, the original petitioners prayed that the direction may be issued to the Corporation to take steps to remove the so-called encroachment of the common plot by respondent No.4 on common open plot. The learned Single Judge has observed in para 2 which reads as under.

"Thus, essentially the dispute between the petitioner andrespondent no.4, if any, is sought to be given colour of inaction on the part of the concerned authorities so as to bring the petitioner within the purview of Article 226 of the Constitution of India. In my view, the petitioner who has not cared to mention in the memo of the petition as to what is the nature of the petitioner association, could not have maintained the writ petition Page 3 of 5 Downloaded on : Fri Aug 26 20:57:43 IST 2022 C/SCA/4482/2019 ORDER DATED: 25/08/2022 against respondent no.4 on the spacious plea of inaction on the part of the authorities. Article 226 of the Constitution of India is meant for exercising power which is in terms "extraordinary" and if the Courts starts exercising power at the instance of one party who has roped in the agency of the State under semblance of so called inaction on their part, such petition cannot be said to be a petition maintainable under Article 226 of the Constitution of India. Article 226 of the Constitution is not meant for examining the nitty-gritty of fine rights existing between respondent no.4 and the petitioner. Examination of plans, correctness of plans, examination of raja-chithy, correctness of raja-chithi would certainly not fall under the purview of the Courts jurisdiction. Courts rather would relegate party to the civil proceedings. In the instant case plain reading of the petition would imminently show that the petitioner has grievance only against respondent no.4. Concerned authority has done its job by approving plan and, if somebody is deviating from the plan, it is always open to the concerned person who is aggrieved of the deviation to approach the Court, i.e. the civil court and establish his right qua the another deviating citizen, trust or institution. The authority if in such a case is called upon to act, then, the authority will assume the role of adjudication which is not essentially the role of the authority under the BPMC Act. The petition being hopelessly meritless deserves rejection and is accordingly rejected with cost."

6. In view of above settled legal position when there is statutory alternative efficacious remedy is available to the petitioner, the present petition needs to be dismissed.

C/SCA/4482/2019 ORDER DATED: 25/08/2022

7. Accordingly, the present petition is dismissed. Notice is discharged.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 5 of 5 Downloaded on : Fri Aug 26 20:57:43 IST 2022