Gujarat High Court
Arunaben Amratbhai Rohit vs State Of Gujarat on 3 August, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/630/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 630 of 2018
In SPECIAL CIVIL APPLICATION NO. 7352 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 631 of 2018
In
SPECIAL CIVIL APPLICATION NO. 7466 of 2018
With
R/LETTERS PATENT APPEAL NO. 632 of 2018
In
SPECIAL CIVIL APPLICATION NO. 7355 of 2018
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ARUNABEN AMRATBHAI ROHIT Versus STATE OF GUJARAT ========================================================== Appearance:
MR DHAVAL M BAROT(2723) for the PETITIONER(s) No. 1,10,11,12,13,14,15,2,3,4,5,6,7,8,9 MS ML SHAH, GOVERNMENT PLEADER(99)for the RESPONDENT(s) No. 1 MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2 for the RESPONDENT(s) No. 3,4 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 03/08/2018 CAV ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1.All these Letters Patent Appeals are filed under Clause-15 of the Letters Patent, aggrieved by common oral order dated 10th Page 1 of 19 C/LPA/630/2018 CAV ORDER May, 2018 passed by learned single Judge in Special Civil Application No.7560 of 2018 and batch of petitions, as such, they were heard together and are disposed of by this common order.
2.As learned counsel for the appellants has advanced arguments in Letters Patent Appeal No. 632 of 2018, which is directed against the order passed in Special Civil Application No. 7355 of 2018, as such, we draw facts from the said appeal and refer to the parties as arrayed in the said appeal.
3.Special Civil Application No. 7355 of 2018 was filed by the original petitioners with the prayers, which read as under:
"(A) This Hon'ble Court be pleased to issue an appropriate writ, order or direction for quashing and setting aside the impugned notices dated 25.04.2018 (Annexure-A) passed by the respondents;Page 2 of 19
C/LPA/630/2018 CAV ORDER
(B) This Hon'ble Court be pleased to
issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to follow the policies and resolutions of the state government and provide the petitioners with accommodation;
(C) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, the respondents to recognize and regularize the residences of the petitioners on such terms and conditions as may be deemed appropriate in accordance with the policies and resolutions of the state government;
(D) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents not to demolish the residences of the petitioners.Page 3 of 19
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(E) Pending the hearing and final
disposal of this petitioner (sic) this Hon'ble Court be pleased to restrain the respondent authorities from demolishing the residences of the petitioners or from removing the petitioners from their homes;
(F) For such other reliefs as this Hon'ble Court may deem fit;"
3.1 In the Special Civil Application, it was the case of the petitioners that they are in possession of the land in question situated at Village-Borij, District-Gandhinagar from the last several years, by putting up constructions and they were also provided electricity, gas, water connections etc. It is their grievance that though they are in longstanding possession of the land in question, the respondents, without any authority of law and jurisdiction and without considering the claim of the petitioners for rehabilitation as per the Policy notified by the government in the Government Resolution Page 4 of 19 C/LPA/630/2018 CAV ORDER dated 3rd July, 2003 and the Policy dated 18th July, 2013, are taking steps for eviction of the petitioners by demolishing the structures, which were erected long back. It was their case that if the structures were to be treated as encroachments, the respondent authorities could not have extended the facility of water connection, drainage connection etc. It is also their case that after several years of their occupation, without considering their claim for rehabilitation, they are sought to be evicted illegally and arbitrarily.
3.2 Detailed reply affidavits were filed on behalf of the respondent nos. 3 and 4, in the aforesaid petitions. While denying various allegations made by the appellants herein, it was the case of the respondent nos. 3 and 4 that the land in question is undisputedly a government land and the appellants have encroached upon the same without any authority of law and permission. Further, it Page 5 of 19 C/LPA/630/2018 CAV ORDER was pleaded that there is no policy within which the petitioners' claim can be considered. It is submitted that, earlier Policy dated 3rd July, 2003 was framed in peculiar facts and circumstances, which have been clarified in detail in the affidavit in reply. It is submitted that Gandhinagar district has its own peculiarity and the entire Gandhinagar has been developed by merging several surrounding villages. It is pleaded that, the appellants have encroached on the lands, which were acquired for the purpose of Gandhinagar district, in various survey numbers in village Gorij. It is categorically pleaded that the appellants were trespassers having no authority to enter into possession of the land in question and the appellants were land grabbers and headstrong persons. Further, it has been noticed that only few persons are collecting rent from various houses and some persons are also indulging in unlawful activities as Page 6 of 19 C/LPA/630/2018 CAV ORDER well. It is further stated that the Policy dated 3rd July, 2003 is conditional one, with cut-off date notified, as such, the appellants are not entitled to have the benefit of such Policy. The respondents have also highlighted the prescriptions of the Policy, which read as under:
"(i) Collector will prepare a list as on 30.11.1999 showing the existing huts along with photographs (this was with a view to derive a cutoff and decide the genuine case);
(ii) the head of such family member was to be allotted an identity proof with photographs in only such individual was to be allotted an alternative plot as the case may be;
(iii) such individual has to be citizen of India;
(iv) the claimants under the scheme i.e. Resolution were to furnish certificate issued by their native Superintendent of Police and Gandhinagar District Superintendent of Police disclosing that no offence is alleged against them or any of the family members and there was Page 7 of 19 C/LPA/630/2018 CAV ORDER further stipulation that individual/ family members having been subjected to one FIR and offence is not proved shall also be eligible and as such if there are more than two offences that such individual should be treated as ineligible. Petitioners are not falling in any of the category."
3.3 It is further the case of the respondents that, the land, which is acquired for Gandhinagar district, vests with Roads and Buildings Department and the resolutions of other departments are not applicable to the area under the control of Roads and Buildings Department of the Government of Gujarat. Further, it is pleaded that as per the government Policy dated 3rd July, 2003, framed by the Roads and Buildings Department, claims of eligible persons were considered and they have been accommodated by giving alternative accommodation. Reliance is placed on the Google maps taken in the years 2002, 2012, 2014 and 2018 to demonstrate that Page 8 of 19 C/LPA/630/2018 CAV ORDER structures, which were put up by the appellants, are of recent nature and subsequent to the Policy dated 3rd July, 2003, as such, they are not entitled to have the benefit of such Policy.
4. We have heard learned counsel Shri Dhaval M. Barot for the petitioners and learned Government Pleader Ms M.L. Shah for the respondent No.1.
5.Without disputing the fact that the appellants-petitioners are in possession of the Govt. land and without producing any material to dispel the allegation of encroachments alleged by the respondent authorities, learned counsel, appearing for the appellants submitted that as the appellants are in longstanding occupation of the land in question for which electricity connection, gas connections etc. are given, the respondent authorities cannot evict them Page 9 of 19 C/LPA/630/2018 CAV ORDER abruptly and illegally without rehabilitating them at a suitable place. It is further submitted that as the appellants are entitled for the benefit under the Policy dated 3rd July, 2003 and the Policy dated 18th July, 2013, the respondent authorities cannot evict them without considering their claims for rehabilitation as per the aforesaid Policies.
6.On the other hand, Ms. M.L. Shah, learned Government Pleader, appearing for the respondent No.1, while opposing the appeals, has taken us through the detailed affidavit in reply and the additional affidavit in reply filed on behalf of the respondent Nos. 3 and 4. It is submitted that the claim of the petitioners on the land in question is with a view to grab the land and all the encroachments are controlled by few persons, who are headstrong persons and they have no respect for the rule of law. It is brought to our notice that these encroachments are in Page 10 of 19 C/LPA/630/2018 CAV ORDER the prime location and sensitive areas in Gandhinagar District and such encroachments were made in spite of specific signboards indicating that the land in question is Govt. land. It is further submitted that Gandhinagar is newly carved out district by acquiring the lands from several surrounding villages for its planned development, in spite of the same, encroachments are made with a view to grab the land. It is submitted that the enroachments are not covered by the Policy dated 3rd July, 2003 issued by the Roads & Building Department and those who are found eligible as per the Policy are already accommodated by allotting constructed flats. Strong reliance is placed on the Google maps, which are attached with the affidavit in reply, to indicate that the encroachments made by the petitioners are recent encroachments.
7.Having heard the learned counsel for the
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appellants and the learned Government Pleader for the respondent No.1, we have carefully perused the order passed by the learned single Judge and other material placed on record.
8.In paragraph-3.5 of the order of the learned single Judge, specific finding is recorded to the effect that during the course of hearing, an element of overall consensus was generated in which some reasonable time was sought and the matters were adjourned for filing specific undertakings by the petitioners. But thereafter, on the ground that some of the petitioners have backed out to file such undertakings, the petitions were considered on merits.
9.When these appeals were listed on earlier occasion, they were adjourned at the request of learned counsel for the appellants that, the appellants will file undertakings to Page 12 of 19 C/LPA/630/2018 CAV ORDER vacate the premises if reasonable time is granted to them. Further, when it is submitted that, the appellants were not prepared to file the undertakings, the appellants were heard on merits.
10. Learned counsel Mr. Dhaval Barot, appearing for the appellants, without disputing that the land in question is Govt. land, has mainly contended that steps are being taken by the respondent authorities to evict the appellants without considering their claims for rehabilitation as per the Policy dated 3rd July, 2003 and the Policy dated 18th July, 2013.
11. It is true that to rehabilitate the persons, who were in possession of various parcels of lands, during the year 2003, the government has passed Resolution dated 3rd July, 2003 and same is subject to certain prescriptions and conditions. The said Page 13 of 19 C/LPA/630/2018 CAV ORDER prescriptions of Policy are reproduced here, which read as under:
"(i) Collector will prepare a list as on 30.11.1999 showing the existing huts along with photographs (this was with a view to derive a cutoff and decide the genuine case);
(ii) the head of such family member was to be allotted an identity proof with photographs in only such individual was to be allotted an alternative plot as the case may be;
(iii) such individual has to be citizen of India;
(iv) the claimants under the scheme i.e. Resolution were to furnish certificate issued by their native Superintendent of Police and Gandhinagar District Superintendent of Police disclosing that no offence is alleged against them or any of the family members and there was further stipulation that individual/ family members having been subjected to one FIR and offence is not proved shall also be eligible and as such if there are more than two offences that such individual should be treated as Page 14 of 19 C/LPA/630/2018 CAV ORDER ineligible. Petitioners are not falling in any of the category."
12. From the material placed on record, it is clear that the site in question was clear vacant land, which is evident from the Google maps produced by the respondents. By making encroachments subsequent to the Government Resolution dated 3rd July, 2003, it is not open for the appellants to seek directions for rehabilitation as per the said Government Resolution. From the material placed on record and the averments made in the reply affidavit and the additional reply affidavit, it is clear that said encroachments are subsequent to issuance of the Government Resolution dated 3rd July, 2003.
13. Further, benefit is claimed by the appellants by seeking directions to consider their claim for rehabilitation as per the Government Resolution dated 18th July, 2013, which is issued by the Urban Development and Page 15 of 19 C/LPA/630/2018 CAV ORDER Urban Housing Department of the Government of Gujarat. Printed copy of the said Government Resolution is also produced along with the affidavit in reply. Said Government Resolution is passed in exercise of powers under section 58(2)(D) of the Gujarat Slums (Improvement, Abolition and Rehabilitation) Act, 1973. By the aforesaid Resolution, Policy was notified for in-situ rehabilitation of slums on public land in partnership with private developers. A perusal of the said Policy makes it clear that said Policy is applicable for the areas covered under Gujarat Slums (Improvement, Abolition and Rehabilitation) Act, 1973. In absence of any notification under the above- said Act declaring a particular area as slum area, we are of the view that such Government Resolution cannot be applied to the case of the appellants, in absence of any material to show that area in occupation of the petitioner is declared slum as per the Page 16 of 19 C/LPA/630/2018 CAV ORDER provisions of the said Act of 1973.
14. Further, as it is clear from the Google maps that the encroachments, which were not there in the map of 2002 and 2012, but such encroachments have come up on the land in question and same is evident from the Google maps of 2014 and 2018. It is also specifically alleged by the respondents that the said occupations are controlled by some headstrong persons and they are handling the affairs of the enraoched area and same is clear from the averments made in the affidavit in reply where it is stated that one Vinitkumar Pyarelal Chauhan in his statement has fairly admitted that he had a dealing with one Alpesh Kailashgiri Goswami and had paid him an amount of Rs.3,50,000/- for the purpose of procuring a plot in the name of his wife and the said fact was concurred by Alpesh Kaileshgiri Goswami himself. Further, some monetary transactions with one Rajubhai Dhulabhai Parmar are also Page 17 of 19 C/LPA/630/2018 CAV ORDER referred.
15. In absence of any material to show that the appellants' possession is backed by any valid title and further when none of the petitioners are entitled to benefits of the Policy relied on by them and as encroachments are made in spite of the signboards put up by the respondents that the land is Govt. land, we are of the view that no case is made out by the appellants in these appeals filed under clause-15 of the Letters Patent so as to interfere with the detailed and well- considered order passed by the learned single Judge. Accordingly, these Letters Patent Appeals are dismissed.
16. Further, as it is the case of the appellants that they are in possession of the land in question for quite some time, we permit them to vacate the premises on or before 31st August, 2018, failing which, it Page 18 of 19 C/LPA/630/2018 CAV ORDER is open to the respondents to enforce the notices issued for eviction of the appellants from the land in question.
17. Since the main appeals are dismissed, the connected Civil Applications in the respective appeals are disposed of.
18. No order as to costs.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) A.M. PIRZADA Page 19 of 19