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Gujarat High Court

Mohmadarif Mahamadyasin Rangrej vs Ahmedabad Municipal Corporation & on 15 April, 2014

Author: N.V.Anjaria

Bench: N.V.Anjaria

        C/SCA/16439/2013                                     ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          SPECIAL CIVIL APPLICATION NO. 16439 of 2013
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       MOHMADARIF MAHAMADYASIN RANGREJ....Petitioner(s)
                            Versus
     AHMEDABAD MUNICIPAL CORPORATION & 1....Respondent(s)
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Appearance:
MR CB DASTOOR, ADVOCATE for the Petitioner(s) No. 1
MS HEENA RAVAL FOR HL PATEL ADVOCATES, ADVOCATE for the
Respondent(s) No. 1
MR MAHESH N BHAVSAR, ADVOCATE for the Respondent(s) No. 2
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        CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
                             Date : 15/04/2014
                                 ORAL ORDER

Heard learned advocate Mr.C.B. Dastoor for the petitioner, learned advocate Ms.Heena Raval for respondent No.1 and learned advocate Mr.Mahesh Bhavsar for respondent No.2. In this petition filed under Article 226 of the Constitution of India.

2. The petitioner has made following prayer:

"Your Lordship be please to issue writ of mandamus or any other appropriate the writ, order, direction, directing the respondent number 1 to take immediate action for demolishing the illegal construction made by respondent number 2 and to comply the order passed by this Hon. Court and thereby be please to quash and set aside the impugne action of the respondent number 1 which is illegal arbitrary and violative of article 14, 19 and 21 of the Constitution of India."

3. The aforesaid prayer is in the background of the case and contention of the petitioner, inter alia that respondent No.2 has illegally constructed on the Page 1 of 5 C/SCA/16439/2013 ORDER land bearing Survey No.139/48, Municipal Census No.16/48, which is Final Plot No.2 in the Town Planning Scheme No.9 and that the said illegal construction is without obtaining permission from the Municipal Corporation.

4. It was submitted by learned advocate for the petitioner that petitioner is adjoining owner of their property. It was further submitted that the construction of the nature of commercial shop, etc, are put up.

5. In Special Civil Application No.17592 of 2011 decided by oral order dated 05th December, 2011 by this Court, the nature and controversy was similar to one involved in this case. The said petitioner had prayed for removal of illegal encroachment requiring the authorities to take steps for such removal on common open plot earmarked for parking and common use. This Court dismissed the petition on the ground that the prayer of the kind made could not be the subject matter of writ jurisdiction. In Letters Patent Appeal No.47 of 2012 decided by the Division Bench by oral judgment dated 15th March, 2012 confirmed the above order of learned Single Judge as well as the observations made:

"Thus, essentially the dispute between the petitioner and respondent 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 Page 2 of 5 C/SCA/16439/2013 ORDER is the nature of the petitioner association, could not have maintained the writ petition 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."

6. Learned advocate for the petitioner submitted that the petitioner had an occasion to institute Civil Suit NO.503 of 2001 before the City Civil Court, Ahmedabad praying for demolition of illegal construction by respondent No.2. Order below Exhibit 5 has been passed in the said proceedings and the same is confirmed in the Appeal from Order, wherein the defendant-respondent No.2 herein was directed to demolish the said construction.

6.1 The above is an additional feature coming out in the present case. When the Civil Court has already passed interim order, it is always open to the petitioner to pursue remedies for implementation of the same in accordance with law. Writ jurisdiction is not the guise under which orders of the Civil Court could be got implemented.

7. It is further to be noted that respondent No.2 has filed his affidavit in which it is pointed out that he has made application for regularisation of the construction under Gujarat Regularisation of Unauthorised Development Act, 2011 and the same is pending. Affidavit-in-reply filed on behalf of respondent No.1-Municipal Corporation, in paragraph 7, fortifies the said factum of application of respondent No.2 being pending with them.

8. It was stated that the authority is unable to decide the said application as respondent No.2 is yet to provide necessary documents. As the application for regularisation under the Act, 2011 is pending, it is yet another reason not to exercise the writ jurisdiction. However, it would be expected that authority shall decide the said application expeditiously and preferable within three months having regard to the complaint of illegal construction. Except this observation, this petition qualify for no relief.

9. It goes without recording that this Court has not gone into the merits of the case with regard to illegal construction of either side in this petition and the application which is pending before the Municipal Corporation under the Act, 2011 shall be decided strictly in accordance with law.

10. For the foregoing reasons and discussion, petition is dismissed. Notice is discharged.

(N.V.ANJARIA, J.) Anup Page 5 of 5