Gujarat High Court
Hiteshkumar Natwarlal Thakkar vs State Of Gujarat on 22 February, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/14308/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14308 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 14308 of 2019
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HITESHKUMAR NATWARLAL THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
SR ADV. MR. ANSHIN DESAI FOR MR NISHIT P GANDHI(6946) for the
Petitioner(s) No. 1
MR KANVA ANTANI, AGP (1) for the Respondent(s) No. 1
SR ADV MR S N SHELAT FOR MR SHIVANG M SHAH(5916) for the
Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4,5
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/02/2021
ORAL ORDER
1. Heard learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. Nishit Gandhi for the petitioner, learned Assistant Government Pleader Mr. Kanva Antani for respondent No.1-State Government and learned Senior Advocate Mr. S.N.Shelat assisted by learned advocate Mr. Shivang Shah for respondent No.2 through video conference.
2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
Page 1 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities to forthwith comply with the report dated 19.06.2019 of the Chief Town Planner (at Annexure-U hereto) report dated 28.06.2019 of the District Town Planner (at Annexure-V hereto) as well as letter dated 22.08.2019 of the State Government (at Annexure-X hereto) and letter dated 03.06.2019 and 18.07.2019 of the Deputy Engineer, Irrigation Department (at Annexure-T and Z hereto) and immediately direct the respondent authorities, more particularly respondent No.2 and 3 to remoe the construction so far put up by them on the land in question as per the aforesaid reports/letters;
(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondent authorities, more particularly respondents No.2 and
3 not to put up any further construction of Gutter Pumping Station over the land in question;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
3. This case has a chequered history. Initially, this Court [Coram:
Hon'ble Mr. Justice A.J.Desai] passed the following order on 23.08.2016:
"Having heard learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. S.P. Majmudar appearing for the petitioner and perusing several orders passed by this Court in earlier proceedings, a petition challenging Notification under Sections 10A and 15 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 as well as different opinions given by the government Page 2 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER authorities not to construct the pumping station in certain area, I am of the opinion that the matter requires consideration.
Issue NOTICE making it returnable on 03.09.2019.
Till then, the concerned Municipality shall not carry out any further construction upon the land belonging to the petitioner.
Learned AGP waives service of Notice on behalf of the respondent No.1."
For rest of the respondents, Direct Service is permitted Today."
4. It appears that thereafter, respondent No.2-Patan Nagar Palika preferred an application under Article 226(3) of the Constitution of India for vacating the interim relief granted by this Court on 23.08.2019.
5. This Court [Coram: Hon'ble Mr. Justice Vipul Pancholi] by order dated 17.09.2019, vacated the interim relief by passing a detailed order as under:
"1. This application under Article 226(3) of the Constitution of India is filed for vacating ad interim relief granted by this Court vide order dated 23.08.2019 passed in Special Civil Application No.14308 of 2019 by applicant Patan Nagarpalika - original respondent No.2 in the petition.Page 3 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER
2. Brief facts leading to filing of the present application are as under:
The opponent No.1 - original petitioner has filed Special Civil Application No.14308 of 2019 in which the petitioner has prayed that the respondent authorities be directed to forthwith comply with the report dated 19.06.2019 of the Chief Town Planner, report dated 28.06.2019 of the District Town Planner, letter dated 22.08.2019 of the State Government and letters dated 03.06.2019 and 18.07.2019 of Deputy Engineer, Irrigation Department and thereby direct the respondent authorities and more particularly respondent Nos. 2 and 3 to remove the construction so far put up by them on the land in question as per the said reports/letters. By way of interim relief, the petitioner has prayed that during the pendency and final disposal of the petition, respondents and more particularly respondent Nos. 2 and 3 be directed not to put up any further construction of the Gutter Pumping Station over the land in question.
The dispute pertains to the land situated at Revenue Survey No.343 Paiki, admeasuring 58 sq. meters out of total land admeasuring 4855 sq. meters situated at Hansapur, District Patan (disputed land). It is the case of the original petitioner that he is the owner of the land in question and the land in question is non
-agricultural land.
On 13.06.2013, the District Collector passed an order whereby land adjoining to the land in question, admeasuring 100 sq. meters of Revenue Survey No.375/A/2 was allotted to Patan Nagarpalika for construction of Water Pumping Station. The petitioner, therefore, challenged the said order by filing Special Civil Application No.17782 of 2013 before this Court. Subsequently, petitioner came to know that the Page 4 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER concerned respondent encroached upon the land of the petitioner and therefore said aspect was pointed out to this Court. When this Court passed an interim order on 28.03.2014, after making inquiry, collector passed an order on 03.06.2014, wherein it is observed that the construction is made on 58 sq. meters of land belonging to the petitioner i.e. Revenue Survey No.343.
On 05.08.2015, a Notification under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 'Act of 2013') for acquisition of the land in question came to be issued. The petitioner therefore challenged the said notification by filing Special Civil Application No.18038 of 2015, wherein, vide order dated 20.07.2017, the notification issued on 05.08.2015 came to be set aside.
Thereafter the respondent State with a view to justify the encroachment made on the land of the petitioner issued another notification dated 22.04.2018 under Section 10A of the Act of 2013 exempting the project from the application of provisions of Chapter II and Chapter III of the Act of 2013. Petitioner therefore filed Special Civil Application No.14325 of 2018 before this Court. Petitioner raised the objection against the acquisition proceedings. However, the objection was not considered. Petitioner has pointed out in the memo of the petition about various petitions filed by him before this Court from time to time and the orders passed by this Court in the said petitions. Petitioner has also pointed out about the order passed by the Hon'ble Supreme Court.
In the petition, petitioner has alleged that the present applicant
- original respondent No.2 has violated the provisions of General Development Control Regulations (GDCR for short) and therefore petitioner has pointed out about the said Page 5 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER violation to the various authorities and therefore various authorities addressed communications to the concerned respondent authority whereby the concerned authority was asked to remove the construction made in violation of the provisions of the GDCR. It is stated that petitioner has, therefore, filed the petition for implementation of the said reports/letters and for demolition of illegal construction made by the original respondent No.2 - applicant.
This Court, after hearing the learned counsel appearing for the original petitioner, vide order dated 23.08.2019, has issued notice making it returnable on 03.09.2019 and by way of ad- interim relief directed the present applicant - original respondent No.2 that it shall not carry out any further construction upon the land belonging to the petitioner. The original respondent No.2 - present applicant has, therefore, filed the present application.
3. Heard learned Senior Advocate Mr. S.N.Shelat assisted by learned advocate Mr. Shivang M. Shah for the applicant, learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. S.P.Majmudar for the respondent No.1 - original petitioner and learned Government Pleader Ms. Manisha L. Shah for the respondent State.
4. Learned Senior Advocate Mr. Shelat, at the outset, submitted that the State of Gujarat has launched a programme of Swarnim Siddhi for Underground Drainage Project which aims at improvement of of urban infrastructure in towns and cities in a planned manner. The same is approved for Patan City by the Gujarat Urban Development Mission, Gandhinagar on 16.09.2010. By the aforesaid project, all the Underground Drainage would be interconnected. There are 5 pumping stations working in the territorial limit of Patan Municipality and considering the current population of the town, underground Drainage Sewerage System is Page 6 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER being worked out. Necessary resolution was passed by the Municipality by which implementing agency is appointed for the aforesaid project. The estimated cost of the said project is 29 crores. Thereafter, applicant requested the Collector, Patan for allotment of land for the said project, which was processed and 100 sq. meters of land from survey No.375/A Paiki 2 of Mouje Hansapur came to be allotted to the applicant on 13.06.2013. Possession of the said land was handed over to the applicant on 02.07.2013. DILR has also carried out the measurement and the project was commenced.
Construction work was carried out and now it has reached up to 80%. Thus, 80% construction is already over.
5. Learned Senior Counsel thereafter would submit that construction was also made on 58 sq. meter of land belonging to the petitioner i.e. the land in question and therefore the petitioner filed a petition being Special Civil Application No.17782 of 2013 wherein the petitioner has also prayed that the respondents be directed to demolish the illegal construction put up by them in the land belonging to the petitioner. It is submitted that the Hon'ble Division Bench of this Court, vide common order dated 20.07.2017 passed in Special Civil Application No.17782 of 2013 with Special Civil Application No.18038 of 2015, dismissed the said petition and request of the petitioner for demolition of the construction put up on the land belonging to the petitioner was rejected.
6. At this stage, learned counsel would further submit that the petitioner filed another petition being Special Civil Application No.18038 of 2015 challenging the notification issued under Section 11 of the Act of 2013, whereby the respondentState started process of acquisition of the land in question of the petitioner. The Hon'ble Division Bench of this Court, by the aforesaid common order dated 20.07.2017, quashed and set aside the Notification issued under Section 11 of the Act of 2011. However, liberty Page 7 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER was reserved to acquire the land in question under the Act of 2013 after following due procedure. Learned counsel referred the said order, copy of which is produced at page 75 of the compilation of the civil application.
7. At this stage, it is further contended that the respondent State thereafter initiated the proceedings under the Act of 2013 for acquisition of the land in question and issued notification under Section 10A and 11 of the Act of 2013. By filing Special Civil Application No.14325 of 2018, the petitioner has challenged the notification issued under Section 10A and 11 of the Act of 2013. It is submitted that the civil application filed by the original petitioner in the said petition for grant of interim relief is not entertained by the Hon'ble Division Bench of this Court. The said civil application was dismissed vide order dated 25.03.2019. Learned counsel has referred the said order, copy of which is produced at page 20 of the compilation of civil application. It is submitted that the said order passed by the Hon'ble Division Bench was challenged by the petitioner by filing SLP. However, the Hon'ble Supreme Court, vide order dated 09.05.2019, dismissed the said SLP.
8. It is further contended that now on 19.06.2019, final award is already passed by the concerned authority under the Act of 2013 and possession is also given to the applicant on 20.06.2019 and therefore adinterim relief granted by this Court vide order dated 23.08.2019 passed in Special Civil Application No.14308 of 2019 be vacated.
9. On the other hand, learned Senior Advocate Mr. Anshin Desai appearing for the opponent No.1 - original petitioner has vehemently opposed this application and at the outset contended that present applicant or the State Government has not filed any reply in the petition and instead of that this application is filed for vacating the ad- interim relief granted by this Court and therefore this application may not be entertained.
10. Learned counsel has also referred the history of the litigation and referred relevant orders passed by the Page 8 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER Hon'ble Division Bench of this Court as well as the Hon'ble Supreme Court. It is further contended that the present applicant - original respondent No.2 has violated mandatory provisions of GDCR and therefore when the said aspect was pointed out to the concerned respondent authorities, report was submitted by the Chief Town Planner, State of Gujarat, wherein he has specifically stated that necessary margin is not kept from the canal and though the process of acquisition of the land in question is not concluded and since the construction is made on the said land, appropriate proceedings be initiated. Learned counsel has referred the said communication produced at page 101 of the compilation of the petition. At this stage, learned counsel has also referred communication dated 28.06.2019 addressed by the Town Planner, Patan to the Chief Officer of applicant Nagarpalika, copy of which is produced at page 104 of the compilation of the petition. It is submitted that in the said communication also the said authority directed the Chief Officer to remove the unauthorized construction made in the land in question as the construction is carried out in violation of the GDCR. Similar type of letters are also placed on record of the main petition. After referring to the same, it is contended that when the various authorities have observed that the applicant Nagarpalika has violated the provisions of GDCR, the present petition is filed, wherein this Court has rightly granted adinterim relief in favour of the petitioner by which the present applicant - original respondent No.2 was directed not to carry out any further construction. It is, therefore, urged that this application be dismissed.
11. Learned Government Pleader Ms. Manisha L.Shah has supported the submissions canvassed by learned Senior Advocate Mr. S.N.Shelat who is appearing for the applicant - Patan Nagarpalika. Learned Government Pleader has also referred the orders passed by the Hon'ble Division Bench of this Court as well as Hon'ble Supreme Court in the petitions filed by the petitioner in the first round of litigation. It is thereafter contended that now it is Page 9 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER not open for the petitioner to contend that applicant Nagarpalika has violated any provision of GDCR. It is, therefore, urged that the adinterim relief granted by this Court be vacated as prayed for by the present applicant.
12. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that petitioner and others are the owners of land admeasuring 4855 sq. meters of Revenue Survey No.343 Paiki situated at village Hansapur, District Patan. The District Collector, Patan passed an order on 13.06.2013, whereby the land adjoining to the land of the petitioner i.e. land bearing Revenue Survey No.375/A/2 was allotted to the applicant for construction of Water Pumping Station. The said order passed by the District Collector was challenged by the present petitioner by filing Special Civil Application No.17782 of 2013. It is required to be noted that in the said petition, the petitioner has prayed for the following relief/s:
"(A) 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 directions quashing and setting aside the impugned order dated 13/06/2013 passed respondent - Collector (at Annexure - C hereto);
(B) Your Lordships may be pleased to direct respondents to demolish the illegal construction put up by them in the land belonging to the petitioner bearing Survey No.343 at Hansapur, District Patan.
(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 directions holding that the action of the respondent authorities in digging up the land of the petitioner for the purpose of construction of gutter water pumping station being land situated at Revenue Survey No.343, Hansapur, District Patan is illegal and without authority of law;"Page 10 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER
13. It is further revealed that while carrying out the construction of Water Pumping Station, the applicant has also made construction on the land admeasuring 58 sq. mtr. of the original petitioner from Revenue Survey No.343 paiki. When the said aspect was realized, the concerned authority started process of acquisition of the disputed land by issuance of notification under Section 11 of the Act of 2013. However, the required procedure was not followed by the concerned authority and therefore the petitioner preferred Special Civil Application No.18038 of 2015. The said petition was also heard along with Special Civil Application No.17782 of 2013 by the Hon'ble Division Bench of this Court. Both the aforesaid petitions were decided by common order dated 20.07.2017.
14. At this stage, it is required to be noted that the Hon'ble Division Bench of this Court disposed of both the petitions with the following directions:
"[8.0] In view of the above and for the reasons stated hereinabove, Special Civil Application No.17782/2013 is hereby partly allowed. Rule is made absolute accordingly to the aforesaid extent so far as Special Civil Application No.17782/2013 is concerned.
[8.1] Respondents are hereby restrained from putting up any further construction on the land belonging to the petitioner at Survey No.343 situated village Hansapur, District Patan admeasuring 58 sq meters until authorised by law and /or until the the land in question is acquired under the Act, 2013 and the petitioner has been paid the compensation for the same as per the law.
[8.2] However, Special Civil Application No.17782/2013 Page 11 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER is hereby rejected /dismissed so far as challenge to the order of the Collector dated 13/06/2013 alloting /allocating the land bearing Survey 375 /A paiki 2 admeasuring 100 sq meters to the Patan Nagarpalika for the purpose of pumping station is concerned.
[8.3] The prayer of the petitioner to direct the respondents to demolish the construction already put up on the land belonging to the petitioner I.e. on the land bearing Survey No.343 admeasuring 58 sq meters is hereby rejected. As observed hereinabove, the same shall not be in the larger public interest and ultimately it will be waste of public money.
[9.0] In view of the above and for the reasons stated hereinabove, Special Civil Application No.18038/2015 is hereby allowed. Impugned
Notification under Section 11 of the Act, 2013 with respect to the land bearing Survey No.343 admeasuring 58 sq meters situated at village Hansapur, District Patan is hereby quashed and set aside. However, it will be open for the appropriate authority to acquire the land under Act, 2013 after following the due procedure as required under the provisions of the Act, 2013, including under Section 9 of the Act, 2013. Rule is made absolute to the aforesaid extent so far as Special Civil Application No.18038/2015 is concerned. No order as to costs."
15. Thus, from the aforesaid order passed by the Division Bench of this Court, it is clear that the petition being Special Civil Application No.17782 of 2013 filed by the petitioner challenging the order dated 13.06.2013 passed by the Collector in favour of the applicant is dismissed and the request of the petitioner for giving direction to the respondent authorities to demolish the construction already put up on the land belonging to the petitioner i.e land bearing Page 12 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER survey no.343 paiki admeasuring 58 sq. mtrs. was also rejected by observing that the same shall not be in the larger public interest and ultimately it will be waste of public money. It is not in dispute that the said order is not set aside by the Hon'ble Supreme Court.
16. From the material placed on record of civil application as well as from the petition, it has further emerged that after the notification issued earlier under Section 11 of the Act of 2013 was set aside and as per the liberty granted by the Hon'ble Division Bench of this Court, fresh process was issued for acquisition of the land admeasuring 58 sq. mtrs. of the petitioner under the Act of 2013. The concerned authority therefore issued notifications under Sections 10A and 11 of the Act of 2013. Petitioner, therefore, once again filed Special Civil Application No.14325 of 2018. The Hon'ble Division Bench of this Court has issued rule in the said petition on 20.11.2018. However, when interim relief was not granted by the Hon'ble Division Bench, the petitioner challenged the said order by filing petition for Special Leave to Appeal 5121 of 2019 before the Hon'ble Supreme Court. The Hon'ble Supreme Court, vide order dated 22.02.2019, dismissed the said petition with a liberty to the petitioner to apply to the High Court in the pending matter for grant of appropriate interim relief in accordance with law. Copy of the said order is produced at page 67 of the compilation of the main petition. Petitioner, therefore, filed Civil Application (For Direction) No.1 of 2019 in Special Civil Application No.14325 of 2018. The Hon'ble Division Bench, once again, by an order dated 25.03.2019, rejected the civil application filed by the petitioner for stay. While dismissing the said civil application, the Hon'ble Division Bench of this Court has observed in para 5 as under:
"5. Having regard to the facts and circumstances of the case and considering the order dated 20.07.2017 Page 13 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER passed in Special Civil Application No. 17782 of 2013 whereby this Court categorically allowed the concerned authority to be exempted from undertaking Social Impact Assessment study as required under the Act, 2013 and thereafter also objections were invited as required under Section 15(2) of the Act, 2013 and now the stage of Section 19 is reached and further procedure to be followed coupled with the fact that the main matter is ordered to be fixed for final hearing on 11.04.2019, we find no reason or justification to stall the project undertaken by the Municipality for larger good of the public. In view of the above, Civil Applications for stay are rejected in absence of merit. Civil Application for joining party is also rejected accordingly."
17. Petitioner again challenged the order dated 25.03.2019 passed by the Hon'ble Division Bench of this Court in the aforesaid application by filing petition for Special Leave to Appeal No.11159 - 11162 of 2019. The SLPs filed by the petitioner came to be dismissed by the Hon'ble Supreme Court vide order dated 09.05.2019. Copy of the said order is produced at page 28 of the compilation of the civil application. Thus, from the order dated 25.03.2019 passed by the Hon'ble Division Bench of this Court in civil application for stay filed by the petitioner it is clear that the Hon'ble Division Bench has specifically observed that ".......we find no reason or justification to stall the project undertaken by the Municipality for larger good of the public....."
18. Thus, from the order dated 20.07.2017 passed by the Hon'ble Division Bench of this Court in Special Civil Application No.17782 of 2013, it is clear that request of the petitioner for demolition of the construction already put up on the land of the petitioner was rejected. Similarly, the Hon'ble Division Bench of this Court, vide order dated 25.03.2019, once again not entertained the request of the petitioner to stall the project undertaken by the applicant Municipality for the larger good of the public.
Page 14 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER19. During the course of hearing of this application, when inquired, learned Senior Counsel Mr. Desai after taking instructions, fairly submitted that 80% of the construction is already made by the Nagarpalika and after the orders passed by the Hon'ble Division Bench of this Court in the aforesaid two petitions, only small room is constructed.
20. Thus, keeping in view the aforesaid facts and the orders passed by the Hon'ble Division Bench of this Court in the aforesaid two petitions, the contention of the petitioner is required to be examined at this stage. The only contention now taken by the petitioner is that the applicant Nagarpalika has violated certain provisions of GDCR and construction is carried out in margin area and in support of the said contention, certain reports/communications are relied upon. At this stage, it is required to be noted that it is not in dispute that the applicant Nagarpalika has not carried out any construction in the so- called margin area violating the provisions of GDCR after the order dated 20.07.2017 passed by the Hon'ble Division Bench of this Court in Special Civil Application No.17782 of 2013 as well as order dated 25.03.2019 passed by the Hon'ble Division Bench of this Court in Civil Application No.1 of 2019 in Special Civil Application No.14325 of 2018 and therefore the aforesaid contention was available to the petitioner at the relevant point of time that while carrying out 80% construction by the applicant Nagarpalika, mandatory provisions of GDCR have been violated. However, no such contention was taken by the petitioner at the relevant point of time and now when the land of the petitioner is already acquired and the award is passed on 19.06.2019 under the provisions of the Act of 2013, at this stage when the petitioner has lost before this Court as well as before the Hon'ble Supreme Court, now petition is filed relying upon the aforesaid reports and communications.
Page 15 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER21. In the aforesaid facts and circumstances of the present case, this Court is of the humble view that when the Hon'ble Division Bench of this Court in the order dated 20.07.2017 not entertained the relief of the original petitioner for demolition of the construction in question by observing that, 'the same shall not be in the larger public interest and ultimately it will be waste of public money' and thereafter also the Hon'ble Division Bench while passing the order dated 25.03.2019 also observed that, 'we find no reason or justification to stall the project undertaken by the Municipality for the larger good of the public', the present application requires consideration. At this stage, it is required to be noted that the present application is filed by the applicant - original respondent No.2 under Article 226(3) of the Constitution of India with a request to vacate the ad - interim relief granted by this Court in favour of the present opponent No.1 - original petitioner. Thus, looking to the provisions contained in Article 226(3) of the Constitution of India, this application is taken up for hearing with consent of the learned advocates appearing for the parties. Main petition is, therefore, yet to be decided finally by this Court and therefore the observations made by this Court in the present order are tentative observations for deciding the application filed under Article 226(3) of the Constitution of India and the said observations shall not come in the way of the original petitioner at the time of deciding the main petition.
22. Accordingly, the application is allowed. Ad interim relief granted by this Court vide order dated 23.08.2019 in favour of petitioner is hereby vacated. The main matter being Special Civil Application No.14308 of 2019 be placed for further hearing on 10.10.2019.
23. At this stage, learned Senior Advocate Mr. Anshin Desai appearing for the opponent No.1 - original petitioner requested that this order be stayed for a Page 16 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER period of 10 days so that opponent No.1 - original petitioner can file an appeal against this order. The stay granted by this Court is in operation till today and therefore in the interest of justice, the same is extended for a further period of 10 days from today."
6. The petitioner, thereafter, preferred Letters Patent Appeal No. 1666 of 2019 challenging the aforesaid order dated 17.09.2019 which was dismissed by the Division Bench [Coram: Hon'ble The Chief Justice Vikram Nath and Hon'ble Mr. Justice A.J.Shastri] vide order dated 26.09.2019 as under:
"1. Heard Shri Anshin Desai, learned Senior Advocate assisted by Shri S.P. Majmudar, learned counsel for the appellant, Shri D.M. Devnani, learned Assistant Government Pleader for respondent No.1 State and Shri S.N. Shelat, learned Senior Advocate assisted by Shri Shivang M. Shah, learned counsel for respondent No.2 Patan Nagarpalika.
2. This intra-court appeal under Clause-15 of the Letters Patent has been preferred by the original writ-petitioner, assailing the correctness of the order dated 17th September, 2019 passed by the learned SingleJudge in Civil Application (For Vacating Interim Relief) No.1 of 2019 filed by the Patan Nagarpalika for vacating interim order dated 23rd August, 2019 in Special Civil Application No. 14308 of 2019 filed by the appellant herein.
3. The learned Single Judge, after hearing the learned counsels for the parties and upon perusal of the material on record, passed a detailed order dealing with the respective arguments and vacated interim order dated 23rd August, 2019. The learned Single Judge further fixed 10th October, 2019 for further hearing of the main matter i.e. Special Civil Application No. 14308 of 2019.Page 17 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER
4. Special Civil Application No. 14308 of 2019 was filed by the appellant, writ-petitioner, praying for the following reliefs:
"(A) 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 directions directing the respondent authorities to forthwith comply with the report dated 19.06.2019 of the Chief Town Planner (at ANNEXURE-U hereto), report dated 28.06.2019 of the District Town Planner (at ANNEXURE-V hereto) as well as letter dated 22.07.2019 of the State Government (at ANNEXURE-X hereto) and letter dated 03.06.2019 and 18.07.2019 of the Deputy Engineer, Irrigation Department (at ANNEXURE-T and Z hereto) and immediately direct the respondent authorities, more particularly respondent No.2 and 3 to remove the construction so far put up by them on the land in question as per the aforesaid reports/letters;
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities, more particularly respondents No.2 and 3 not to put up any further construction of Gutter Pumping Station over the land in question;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
5. Basis for claiming the reliefs was series of letters issued by the authorities of different departments alleging violation of General Development Control Regulations ("GDCR" for short) being made by Patan Nagarpalika in installing a Pumping Station over the land in dispute. The 5 letters referred to and relied upon by the appellant are: (i) letter dated 3rd June, 2019 (at page no.268 of the paper book) issued by the Deputy Executive Engineer, Patan Irrigation Sub Division No.5, addressed to the Chief Officer, Patan Nagarpalika; (ii) letter dated 19th June, 2019 (at page no. 271 of the paper book), issued by the Chief Town Planner, Gujarat State, Gandhinagar to the Officer on Special Duty, Urban Page 18 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER Development and Urban Housing Department, Gandhinagar;
(iii) letter dated 28th June, 2019 (at page no.274 of the paper book) issued by the office of the Town Planner, Patan and addressed to the Chief Officer of Patan Nagarpalika; (iv) letter dated 18th July, 2019 (at page no. 283 of the paper book) written by the Deputy Executive Engineer to the Regional Commissioner (Municipalities), Gandhinagar and (v) letter dated 22nd July, 2019 (at page no. 288 of the paper book) written by the Under Secretary (North Gujarat), Narmada Water Resources, Water Supply and Kalpsar Department to the Superintending Engineer, Sujalam Suflam Circle-2. The sum and substance of these letters is basically highlighting that there was violation of the GDCR by the Patan in constructing/installing a Pumping Station and as such, ongoing construction should be stopped/or should be removed.
6. The learned Single Judge, while dealing with the petition and considering the submissions advanced by learned counsel for the writ-petitioner (appellant herein) passed an exparte interim order on 23rd August, 2019, directing status-quo to be maintained by the parties. Notices were issued to the other side. Patan Nagarpalika appeared and moved Civil Application No. 1 of 2019 for vacating the said interim order dated 23rd August, 2019. The said Civil Application No. 1 of 2019 has since been allowed by the learned Single Judge by order dated 17.9.2019 against which, the present appeal has been filed.
7. Brief facts, which may be recorded for dealing with the submissions advanced would be that land measuring 100 sq.mts of Revenue Survey No. 375/A/2 was allotted to Patan Nagarpalika for construction and installation of a Pumping Station over it. Revenue Survey No.343 belongs to the appellant and is adjoining the aforesaid Revenue Survey No. 375/A/2. When the construction work of the Pumping Station started, the appellant realized that the PatanNagarpalika was encroaching upon his land of Plot No. 343 and accordingly raised objections. Series of litigations had been filed challenging the action of Patan Nagarpalika in encroaching Page 19 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER upon the land of the appellant. At every stage of the proceedings, the appellant has challenged the same before this Court and further carried the matters to the Supreme Court on three occasions when this Court declined to grant interim protection/orders. Following are the details of the litigation already initiated by the appellant: i) The allotment of 100 sq.mtrs. of Revenue Survey No.375/A/2 of Patan Nagarpalika was challenged by way of Special Civil Application No.17782 of 2013. In the said petition, the Collector, Patan, was required to file an affidavit as it was alleged by the appellant that his plot No.343 was being encroached upon. The Collector passed an order dated 3.6.2014 holding that 58 sq.mtrs. land of Revenue Survey No.343 had been used by the Patan Nagarpalika. ii)The appellant filed Special Civil ApplicationNo.18038 of 2015 challenging the notification dated 5.8.2015 under section 11 of the 2013 Act for acquisition of 58 sq.mtrs. land of Revenue Survey No.343. This petition was allowed by judgment and order dated 20.7.2017 leaving it open to the respondent State to draw acquisition proceedings in accordance with law. The Division Bench, however, declined to pass orders for demolition of the constructions already raised. iii) The appellant filed Special Leave to Petition No.4198 of 2019 aggrieved by the order dated 20.7.2017 passed in Special Civil Application No.18038 of 2015 to the extent it denied directions for demolition of the constructions already raised. The SLP was dismissed by order dated 22.2.2019. iv) The appellant filed Special Civil Application No.14325 of 2018 challenging the notification dated 22.4.2018 issued under sections 10A and 11 of the 2013 Act. In the said petition, rule was issued on 20.11.2018 but no interim order was granted. v) The appellant filed Special Leave to Appeal (Petition) No.5121 of 2019 challenging the order dated 20.11.2018 passed in Special Civil Application No.14325 of 2018 praying for interim protection before the Supreme Court. The SLP was dismissed by order dated 22.2.2019. Supreme Court however gave liberty to the appellant to approach the High Court for the relief claimed.
vi) The appellant filed Special Civil Application No.1645 of 2019 challenging the report of the Land Acquisition Officer while deciding the objections of the appellant against the Page 20 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER acquisition proceedings. This petition was directed to be clubbed with Special Civil Application No.14325 of 2018, vide order dated 29.1.2019. vii) Pursuant to the liberty granted by the Supreme Court to apply for appropriate relief before the High Court, the appellant filed Civil Application (For Protection) No.1 of 2019 in Special Civil Application No.14325 of 2018. The Division Bench by order dated 25.3.2019 rejected the said Civil Application. viii)The appellant filed Special Leave to Appeal Nos.11159-11162 of 2019 challenging the order dated 25.3.2019, which was dismissed by the Supreme Court by order dated 9.5.2019.ix) The appellant filed Special Civil Application No.14308 of 2019 in which, an interim order was granted on 23.8.2019 which has since been vacated by the order under challenge dated 17.9.2019.
8. Throughout this, the Court, while dealing with the petitions, declined to pass orders for demolishing the construction, however, left it open to the State to acquire a part of the land of Plot No. 343. Acquisition proceedings have already been taken and notifications issued under sections 10(A) and 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (herein after referred to as "the 2013 Act") are already under challenge before this Court. The same are pending after admission. However, there is no interim order in the said petition.
9. It is also on record that pursuant to notification under section 10(A) of the Act of 2013, award has already been made on 19th June, 2019. Thus, apparently, part of the land of Revenue Survey No. 343 (58 sq.mtrs), which has been acquired, as on date stands vested in the State Government and only entitlement of the petitioner-appellant would be to compensation. However, as and when the petition challenging the notification under section 10(A) is not decided, the rights of the petitioner over the said part of the land already notified, would stand curtailed. Till then, the appellant's rights over the land in dispute stand severed.
Page 21 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER10. In the series of litigation filed before this Court and the Supreme Court also, no interim relief was granted in favour of the appellant. The learned SingleJudge, while dealing with the stay vacation application has dealt with in detail about the previous litigations,their status and thereafter arrived at a conclusion that the exparte interim order granted earlier dated 23.08.2019 deserves to be vacated.
11. Before us, Shri Anshin Desai, learned Senior Advocate has vehemently contended that despite the fact that State authorities have been writing to PatanNagarpalika and other concerned authorities of the Irrigation Department and the Urban Development & Urban Housing Department for stopping the construction of the Pumping Station in question, being in violation of the GDCR and also being dangerous to life in case of any sudden breach being close to the canal, no heed is being paid to the same and in gross violation of these communications/orders, the Patan Nagarpalika is insisting upon continuing with the construction. He therefore submits that the learned Single Judge erred in vacating the interim order rather than restraining the respondent No.2 Nagarpalika from proceeding any further in the absence of any No Objection Certificate/consent by Development Authorities.
12. It is also submitted by Shri Desai, learned Senior Advocate that earlier when Division Bench passed orders, the 5 communications referred to above,relating to violation of GDCR were not in existence and as such also, the learned Single Judge erred in not relying upon these communications rather than relying upon the earlier orders passed.
13. It is also the submission of Shri Desai, learned Senior Advocate that the Patan Nagarpalika is shying away from filing an affidavit, placing on record the stage of such construction. It is also submitted that oral statement made by learned counsel for Patan Nagarpalika that 80% work has been completed, is accepted to be correct and has been relied upon by the learned Single Judge. He, therefore, insists that Patan Nagarpalika must come out with a specific stand Page 22 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER regarding construction and its present stage by way of an affidavit.
14. Shri Desai is also much aggrieved by the stand taken by the State. According to him, the stand taken by the learned Government Pleader before the learned Single Judge that these 5 letters referred to above, would be withdrawn, has still not been acted upon. Neither any affidavit has been filed to the aforesaid effect nor any such order/communication has been placed on record withdrawing these letters. He therefore submits that the State must also come up with a specific stand about the strength and status of these 5 orders/letters referred to above, alleging violation of the GDCR.
15. Shri S.N. Shelat, learned Senior Advocate appearing for respondent No.2 Patan Nagarpalika and Shri D.M. Devnani, learned Assistant Government Pleader appearing for respondent No.1 State, have stated that affidavits would be filed in the Special Civil Application No. 14308 of 2019 before the learned Single Judge within a week from today positively failing which, it would be open for the learned Single Judge to draw an adverse inference as may be permissible in the facts of the case.
16. Shri Shelat, learned Senior Advocate, appearing for Patan Nagarpalika submitted that the General Development Control Regulations (GDCR) are issued under the provisions of the Gujarat Town Planning & Urban Development Act, 1976 (referred to as "the 1976 Act") which may not be applicable to the construction/installation of the Pumping Station being made by Patan Nagarpalika. He has referred to the proviso to section 26 thereof and submitted that restriction as mentioned therein would not be applicable to the Nagarpalika in constructing the Pumping Station. He also submits that the State Government allotted the land measuring 100 sq.mts bearing Revenue Survey No. 375/A/2 for construction of a Pumping Station knowing fully well the location of the said plot. Further, the State Government also acquired part of Plot bearing Revenue Survey No. 343 to augment the construction/installation of the Pumping Station Page 23 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER as some land was falling short. The submission is that since the State is fully aware of the location of the aforesaid plot and has taken steps to allot the same for construction of the Pumping Station, apparently, no violation of any of the GDCR could be alleged.
17. He also submits that construction of the Pumping Station is for public at large and it is to serve the public and not for any individual. As such, such project may not be stalled at the behest of a private person whose land has been acquired in accordance with law.
18. He further submits that the learned Single Judge rightly vacated the interim order. His submission is also to the effect that earlier also, the appellant had failed to get any interim relief in the previous rounds of litigation, rather, the Division Bench specifically observed that such projects of public purpose should not be stalled.
19. Shri D.M. Devnani, learned Assistant Government Pleader, referring to 5 orders/letters submitted that as on date, no adjudication has taken place and merits of these orders will be tested in the Special Civil Application pending before the learned Single Judge. He also submitted that if ultimately the appellant succeeds in the writ-petition, the consequences will follow and he would be entitled to restoration of the land as per the relief that may be granted to him. Mr. Devnani also submitted that the appellant having failed to obtain any interim orders in the previous rounds of litigations, has now started the present round on the basis of 5 letters/orders alleging violation of the GDCR which have been issued only in the months of June and July 2019 after the Supreme Court dismissed the third Special Leave Petition on 09.05.2019.
20. Having considered the submissions advanced by the respective counsels for the parties, what is to be noticed is that the letters issued by various authorities are addressed to different authorities alleging that the construction/installation of the Pumping Station by the Patan Nagarpalika is apparently in violation of the GDCR.
Page 24 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER21. Under the 1976 Act, procedure is prescribed for removal of construction being raised in violation of the provisions of the said Act, Rules, Bye-laws and Regulations which are quasi-judicial in nature and require proper proceedings to be drawn up by the Competent Authority. This is one aspect of the matter. The other aspect to be considered is whether proviso to section 26 of the 1976 Act exempts the construction being raised Government by the through Central their Government/State agencies from the provisions of the 1976 Act or not. All these issues would be dealt with by the learned Single Judge while dealing with the merits of the Special Civil Application. We are not inclined to enter into the merits of the matter or record any such finding. However, in the facts of the case, we find that the learned Single Judge did not commit any error in vacating the interim order.
22. As already observed above, the matter is already fixed on 10th October, 2019 and the respondents have already undertaken to file their affidavits within a week from today failing which consequences will follow as observed above.
23.Thus, the appeal is devoid of merit and the same is accordingly dismissed. Consequently, connected Civil Application for stay stands disposed of."
7. Having perused the aforesaid orders passed in this proceeding, it would be a futile exercise to repeat the facts again as the same were considered in detail while passing the order vacating the interim relief and therefore, the same are not repeated for sake of brevity.
8. Learned Senior Advocate Mr. Anshin Desai, after narrating the facts in brief reiterated his contentions which were made at the time of hearing of vacating of the interim relief as well as before the Division Bench to the effect that the five Page 25 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER communications, as referred to in the order of the Division Bench, are conclusive proof of the fact that respondent No.2- Nagar Palika has not followed the mandatory requirement prescribed under the provisions of General Development Control Regulations ['GDCR' for short] prevailing at the time and therefore, pumping station put up by the respondent-Nagar Palika is liable to be demolished. It was pointed out from the affidavits filed on behalf of Nagar Palika that there is not a single averment with regard to the five communications, which are referred to by learned Senior Advocate Mr. Desai available at pages 98, 102, 104, 113 and 118 which had transpired between the office of the Chief Town Planner, Under Secretary of the Government etc. It was pointed out that respondent-Nagar Palika has conveniently chosen not to refer to such communications and the only contention was raised with regard to the completion of construction of the pumping station and the same was for the public at large. It was pointed out that how the GDCR is not applicable to respondent No.2- Nagar Palika is nowhere on record. Learned Senior Advocate Mr. Desai also submitted that though the contention was raised on behalf of respondent-Nagar Palika for the first time before the Division Bench with regard to applicability of section 26 of the Gujarat Town Planning and Urban Development Act,1976 [for short 'the Act, 1976'] the same is not applicable in the facts of the case as the construction made by respondent-Nagar Palika is not pertaining to any development plan and therefore, the exception carved out in the proviso to Page 26 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER section 26 would not be applicable and it is mandatory for the the respondent-Nagar Palika to follow the GDCR. It was therefore, submitted that there is an evasive denial by the respondent-Nagar Palika with regard to the directions given by the higher authorities to remove illegal construction contrary to GDCR relying upon the fact that subsequently, the land in question of which the petitioner was the owner was acquired under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [for shirt 'the Act, 2013] which is under challenge before this Court. According to learned Senior Advocate Mr. Desai, the petitioner is still the owner of the land in question more particularly, when this petition was filed in the year 2019 and the acquisition award is passed subsequent to filing of this petition. Learned Senior Advocate Mr. Desai therefore, submitted that applying the doctrine of aprobate and reprobate, the petitioner is entitled to the reliefs prayed in this petition and the respondent-Nagar Palika is required to be directed to demolish the construction made in violation of the GDCR which is not in dispute. Learned Senior Advocate Mr. Desai submitted that the respondent-Nagar Palika committed an error by encroaching upon the land of the petitioner which is proved in the earlier litigation. It was therefore, submitted that the subsequent acquisition proceedings are nothing but an attempt to correct such error and therefore, in view of the Article 300A of the Constitution of India, the petitioner has a right to the property which is now Page 27 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER considered by the Apex Court as right to life under Article 21 of the Constitution of India and accordingly, the error committed by the Nagar Palika could not have been rectified by acquiring such property on the ground that substantial expenditure is made by the Nagar Palika which is clearly in violation of Article 300A of the Constitution of India.
9. On the other hand, learned Senior Advocate Mr. S.N.Shelat assisted by learned advocate Mr. Shivang Shah submitted that as on today, admittedly, the petitioner is not the owner of the land in dispute admeasuring 58 sq.mtrs upon which, the pumping station is already constructed and operational. It was submitted that Division Bench of this Court [Coram: Hon'ble Mr. Justice M.R.Shah and Hon'ble Mr. Justice B.N.Karia] vide order dated 20.07.2017 while considering the challenge made by the petitioner in the years 2013 and 2015 with regard to prayer for directing the respondents to demolish illegal construction put up by them on the very same land, has held as under:
"[2.0] Special Civil Application No.17782/2013 has been preferred by the petitioner herein - owner of the land bearing Survey No.343 situated at village Hansapur, District Patan for the following reliefs;
(A) 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 directions quashing and setting aside the impugned order dated 13/06/2013 passed respondent -
Collector (at Annexure - C hereto);
Page 28 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER(B) Your Lordships may be pleased to direct respondents to demolish the illegal construction put up by them in the land belonging to the petitioner bearing Survey No.343 at Hansapur, District Patan.
(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 directions holding that the action of the respondent authorities in digging up the land of the petitioner for the purpose of construction of gutter water pumping station being land situated at Revenue Survey No.343, Hansapur, District Patan is illegal and without authority of law;
[4.0] As one part of the land bearing Survey No.343 situated at village Hansapur, District Patan, owned by the petitioner, was alleged to be encroached upon by the respondents, more particularly, Patan Nagarpalika and Gujarat Urban Development Company Ltd, who was entrusted with the work of constructing the pumping station and the adjacent land bearing Survey No.375 /A paiki 2 admeasuring 100 sq meters was alloted by the Collector to the Patan Nagarpalika for the purpose of construction of pumping station, the petitioner - owner of the land bearing Survey No.343 paiki has preferred Special Civil Application No.17782/2013 for the aforesaid reliefs.
[4.1] Respondents nos.3 and 4 initially denied that there was any encroachment by them on the land of the petitioner and it was denied that any part construction was made on the land of the petitioner, and therefore, the Collector, Patan was directed to submit the report after getting measurement and survey carried out by the DILR. The Collector submitted its report dated 03/06/2014, which is placed on record by the petitioner under further affidavit dated 16/07/2014 and from the said report it is proved that part of the construction of pumping Page 29 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER station is put towards certain land of the petitioner. It was found that there was encroachment on the land of the petitioner, bearing Survey No.343 paiki to the extend of 58 sq meters, and therefore, it is the case on behalf of the petitioner that without acquiring the land of the petitioner and without authority under the law, Patan Nagarpalika and Gujarat Urban Development Company Ltd. have made part construction of pumping station on the private land belonging to the petitioner.
[7.0] Heard the learned advocates appearing on behalf of the respective parties at length. Now so far as Special Civil Application No.17782/2013 is concerned, in the said Special Civil Application challenge is twofold. The petitioner has challenged the impugned order dated 13/06/2013 by which the Collector has alloted the land bearing Survey No.375 /A paiki 2 situated at village Hansapur, District Patan to the Patan Nagarpalika for the purpose of underground sewage and pumping station and another challenge is that without authority under the law respondents have started putting up construction of pumping station on part of the land bearing Survey No.343 situated at village Hansapur, District Patan belonging to the petitioner.
[7.1] Now so far as the challenge to the impugned order dated 13/06/2013 issued by the Collector is concerned, it is required to be noted that the land admeasuring 375 /A paiki 2 admeasuring 100 sq meters is given to the Patan Nagarpalika for public purpose belonging to the State Government as a padtar land. The petitioner, as such, has nothing to do with the said land except that the land, which is alloted, is adjacent to the land of the petitioner bearing Survey No.343 situated at village Hansapur, District Patan. Except in one line it is stated that the action is mala fide there are no further averments in the petition. It is not demonstrated how the said action is mala fide. It is the specific case on behalf of the State Government and the Nagarpalika that the land, which is alloted out of the Government land /padtar land, is the only land, which is available and needed for the public purpose. It is required to be Page 30 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER noted that out of the total construction of pumping station, part construction is made on the land of the petitioner bearing Survey No.343 situated at village Hansapur District Patan and the remaining construction is made on the land bearing Survey No.375 /A paiki 2. By now substantial amount has been spent for construction and the construction up to slab level has been constructed. The depth of the pumping station is 11.30 meter and diameter is 10.60 sq meter, and therefore, substantial public amount has been spent. Merely because pumping station is being constructed on the land adjacent to the petitioner, the allotment by the impugned order cannot be said to be mala fide and /or illegal. At one place pumping station is required to be constructed. It will not be for the petitioner to select the place where the pumping station is to be constructed. The land in question is very much needed for public purpose and also for the healthy and hygienic condition of the public at large. circumstances, challenge to the impugned order dated 13/06/2013 fails.
[7.2] However, learned advocate appearing on behalf of the petitioner is justified in making the grievance that unless and until the land belonging to the petitioner upon which part construction is made is acquired and the petitioner has been paid the compensation, respondents cannot be permitted to put up any construction. Now it is established that out of the total land bearing Survey No.343 belonging to the petitioner on 58 sq meters of land only part construction is made for pumping station. The said construction can be said to be without authority under the law so long as the same is not acquired by the appropriate authority and for which the compensation is not paid and /or the same is backed by any authority under the law. Under the circumstances, till the land in question is acquired under the provisions of the Act, 2013 and /or the petitioner is not paid the compensation as per the law, respondents cannot be permitted to put up any further construction, and therefore, appropriate respondents are required to be restrained from putting up any further construction unless it is backed by the authority of law.
Page 31 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER[7.3] At the same time the prayer of the petitioner to direct the respondents to demolish the construction already put up is concerned, as the land in question is sought to be proposed now under the provisions of the Act, 2013 and it appears that earlier under the bona fide belief that the construction is being put on the Government land the authority started the investment, by now which is public money, at the most the petitioner can be compensated with the amount of compensation /damages. We are of the opinion that it will not be in the larger public interest to demolish the pumping station, which is partly on the land belonging to the petitioner. If part construction is removed, in that case, it is likely to affect other construction, which is on the land alloted by the Government. petitioner to Under direct the the circumstances, respondents prayer to of the demolish the construction is required to be rejected.
[8.0] In view of the above and for the reasons stated hereinabove, Special Civil Application No.17782/2013 is hereby partly allowed. aforesaid Rule is made absolute accordingly to the extent so far as Special Civil Application No 17782/2013 is concerned.
[8.1] Respondents are hereby restrained from putting up any further construction on the land belonging to the petitioner at Survey No.343 situated village Hansapur, District Patan admeasuring 58 sq meters until authorised by law and /or until the the land in question is acquired under the Act, 2013 and the petitioner has been paid the compensation for the same as per the law.
[8.2] However, Special Civil Application No.17782/2013 is hereby rejected /dismissed so far as challenge to the order of the Collector dated 13/06/2013 alloting /allocating the land bearing Survey 375 /A paiki 2 admeasuring 100 sq meters to the Patan Nagarpalika for the purpose of pumping station is concerned.
Page 32 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER[8.3] The prayer of the petitioner to direct the respondents to demolish the construction already put up on the land belonging to the petitioner i.e. on the land bearing Survey No.343 admeasuring 58 sq meters is hereby rejected. As observed hereinabove, the same shall not be in the larger public interest and ultimately it will be waste of public money.
[9.0] In view of the above and for the reasons stated hereinabove, Special Civil Application No.18038/2015 is hereby allowed. Impugned Notification under Section 11 of the Act, 2013 with respect to the land bearing Survey No.343 admeasuring 58 sq meters situated at village Hansapur, District Patan is hereby quashed and set aside. However, it will be open for the appropriate authority to acquire the land under Act, 2013 after following the due procedure as required under the provisions of the Act, 2013, including under Section 9 of the Act, 2013. Rule is made absolute to the aforesaid extent so far as Special Civil Application No.18038/2015 is concerned.No order as to costs."
10. Relying upon the aforesaid observations made by the Division Bench, it was submitted by learned Senior Advocate Mr. Shelat that the prayers made in this petition, which were made before the Court and dealt by the Division Bench in the aforesaid manner, cannot be granted in this petition. It was pointed out that the Division Bench has categorically held that it will not be in the larger public interest to demolish the pumping station which is partly on the land belonging to the petitioner at the relevant time.
11. It was therefore, submitted that now the land upon which the construction was made by the respondent No.2-Nagar Palika is already acquired by passing an award on 14.08.2019 Page 33 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER under section 10A of the Act, 2013 and which is the subject matter of the litigation before this Court in Special Civil Application Nos. 1645 of 2019 and 14325 of 2018. It was, therefore, submitted by learned Senior Advocate Mr. Shelat even if the acquisition proceedings may be quashed and set aside, in view of the subsequent events which have taken place that the pumping station is already constructed and is operational, the petitioner, at the most, would be entitled to compensation and damages which may be quantified in accordance with law. It was therefore, submitted that this petition is filed by the petitioner only with a purpose to see that the plot which was belonging to the petitioner is reclaimed as the petitioner has, as such, no personal interest in the construction of pumping station alleged to be contrary to the GDCR.
12. Learned Senior Advocate Mr. Shelat further submitted that from the events which have been narrated in the order dated 17.09.2019 while vacating the interim relief by this Court and confirmed in the appeal before the Division Bench, it is clear that the petitioner has kept on trying to see that construction of pumping station is stopped and the construction is demolished, as from 2013 onwards but the petitioner has failed at each and every time and at least on three occasions before the Supreme Court.
Page 34 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER13. It was therefore submitted by learned Senior Advocate Mr. Shelat that the petition is misconceived and liable to be dismissed. It was submitted that the petitioner is estopped from making such prayer in view of the subsequent developments which have taken place as the land in question is already acquired vide Award dated 14.08.2019 and moreover, the petitioner has failed to get any order from this Court i.e. from Single Bench, Division Bench and the Apex Court with regard to demolish the construction put up by the Nagar Palika as per the scheme of the Government. Reference was made to the notification dated 06.09.2010 issued under the Gujarat Urban Development Mission for launching the programme of Swarnim Siddhi for under ground drainage project which aims at improvement in urban infrastructure in towns and cities in a planned manner and for implementation of such project the Government Of Gujarat appointed Gujarat Urban Development Mission as a nodal agency was empowered to process the project received from the various stake holders. It was therefore submitted that respondent no.2 Nagar Palika has implemented such project with proper sanction from the Government and handed over the execution of work of such project to respondent No.3-Gujarat Urban Development Company Limited wholly owned company of the State Government and as such, it is the respondent no.3 who has constructed the pumping station for implementation of such project.
Page 35 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER14. Learned Senior Advocate Mr. Shelat also invited the attention of the Court to the order dated 27.08.2020 passed by the Regional Commissioner of Municipalities under section 258 of the Act, 1963 in Review Application No. 18 of 2019 preferred on behalf of the petitioner to review the resolution dated 29.04.2013 and 09.10.2014 passed by the respondent No.2 being resolution No. 64 and 251 respectively whereby the respondent no.2-Nagar Palika passed a resolution to acquire the land for construction of the pumping station for the implementation of the aforesaid project and in the said order it was held that the respondent no.2-Nagar Palika and the respondent No.3 are not required to take sanction from any department of the Government for construction of the pumping station for implementation of the aforesaid project of Swarnim Siddhi. It was therefore submitted that the grievance raised by the petitioner for violating the GDCR is of no consequence. Reliance was also placed on section 26 of the Act, 1976 to point out that sub-clause (2) of proviso to section 26 would be squarely applicable to the facts of the case as respondent No.2- Nagar Palika has executed the project as per the direction of the State Government in compliance of the project of Swarnim Siddhi. It was therefore submitted that the petition being devoid of any merit is liable to be rejected.
15. Having heard learned advocates for the respective parties and having gone through the materials on record it Page 36 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER appears that the petitioner who was originally the owner of the land in question has preferred this petition only with a view to see that he can save his land from being acquired in view of the orders passed by this Court directing the respondent authority to initiate the acquisition proceedings under the Act, 2013. Endeavour on part of the petitioner is only to see that the respondent Nagar palika stops constructing the pumping station anyhow and thereby stall the project of respondent no.2-Nagar Palika as respondent No.2 Nagar Palika by an error encroached upon 58 sq.mtrs of the land of the petitioner which was subject matter of the litigation as enumerated in detail in order dated 17.09.2019 reproduced here-in-above leading to various multiple litigations by filing Special Civil Application Nos. 17782 of 2013, 18038 of 2015, Civil Application for Stay and SLP before the Supreme Court etc as stated in detail in the order vacating interim relief and therefore the same is not repeated here. It appears that approach of the petitioner is to redress the grievance of construction of pumping station by respondent Nagar Palika on the land of the petitioner at the relevant point of time. However, pursuant to the directions/observations made by the Division Bench of this Court in order dated 20.07.2017 in Special Civil Application No. 18035 of 2015, respondent- Nagar Palika after following due process has acquired the land under the provisions of the Act, 2013. However, such acquisition is subject matter of the litigation before this Court in Special Civil Application No. 1645 of 2019 and therefore it Page 37 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER would not be proper for observing anything on merits of this issue.
16. Undisputed facts is that pumping station is now fully constructed as averred and stated at the bar by learned advocate on record Mr. Shivang Shah for respondent No.2- Nagar Palika upon instructions. It is also stated at the bar that such pumping station is operational. Time was sought for by Mr. Shah for placing such fact on record however, the same was not found necessary in view of the statement made at the bar and therefore the matter was taken up for hearing. In that view of the matter, admittedly, at no point of time in any of the litigation, any stay order is granted in favour of the petitioner with regard to either stoppage of construction or of demolition of the pumping station as held by the Division Bench in the order dated 26.09.2019 more particularly, as held by the Division Bench that such pumping station is for the public at large.
17. With regard to the contention raised on behalf of the petitioner that there are five communications from different departments of the State Government wherein reference is made that respondent no.2-Nagar Palika has not adhered to the GDCR is concerned, it is pertinent to note that in none of the communication at pages No. 98, 102, 104, 113, 118, the respondent No.2-Nagar Palika is directed to demolish such construction but every time each and every authority has Page 38 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER called for a report of such for alleged violation of GDCR. It is true that at relevant point of time, the authority might have observed that there is violation of GDCR but Regional Municipal Commissioner in the order dated 27.08.2020 has rightly observed that neither the Nagar Palika nor respondent No.3 Gujarat Uraban Company Ltd. is required to take any sanction for construction of the pumping station in order to implement the project of the State Government viz Swarnim Siddhi.
18. Assuming for a while that there is violation of GDCR, it is between the departments of the Government to sort out the same, so far as the petitioner is concerned, it appears that the petitioner is a disgruntled person as his land is acquired due to error committed by the Municipality by encroaching upon his land in the year 2013 and now subsequently, such error is rectified pursuant to the observations made by Division Bench of this Court by acquiring the same in accordance with law. The petitioner cannot raise any grievance for violation of GDCR as the petitioner is neither the owner as on today nor the petitioner has to do anything with regard to such land admeasuing 58 sq.mtrs of Revenue Survey No.343 Paiki which has gone into acquisition for construction of the pumping station which is now operational.
19. In view of the foregoing reasons, the petition fails and accordingly, dismissed with no order as to costs.
Page 39 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021 C/SCA/14308/2019 ORDER20. In view of dismissal of Special Civil Application, no order is required to be passed in Civil Application. The same is disposed of.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 40 of 40 Downloaded on : Wed Sep 01 09:16:11 IST 2021