Gujarat High Court
Kapilaben Govindbahi Goswami vs State Of Gujarat on 10 May, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/7560/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7560 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 7352 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 7355 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 7466 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 7755 of 2018
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JAGDISH KALUBHAI TAILI
Versus
STATE OF GUJARAT
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Appearance:
SPECIAL CIVIL APPLICATION NO.7560 OF 2018
MS. TARUNA R MAKWANA, Advocate for the Petitioners
MS. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with
MR. UTKARSH SHARMA, AGP for the Respondent State Authorities
SPECIAL CIVIL APPLICATION NO.7466 & 7355 OF 2018
MR. DHAVAL M. BAROT, Advocate for the Petitioners
MS. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with
MR. UTKARSH SHARMA, AGP for the Respondent State Authorities
SPECIAL CIVIL APPLICATION NO.7352 OF 2018
MR NIRAV C. THAKKAR, Advocate for the Petitioners
MS. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with
MR. UTKARSH SHARMA, AGP for the Respondent State Authorities
SPECIAL CIVIL APPLICATION NO.7755 OF 2018
MR KULDEEP D. SHARMA, Advocate for the Petitioners
MS. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with
MR. UTKARSH SHARMA, AGP for the Respondent State Authorities
Page 1 of 24
C/SCA/7560/2018 ORDER
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 10/05/2018
COMMON ORAL ORDER
1. The present group of petitions filed under Articles 226 and 227 of the Constitution of India essentially against the initiation of demolition process undertaken by the respondent authorities. Since the common question of law and substantial basic facts are similar, learned advocates appearing for the respective parties have requested the Court to take up the matter together and decide the same by way of common order. Accordingly, all these petitions are taken up for hearing and being decided by this common order.
2. Originally the first petition being Special Civil Application No.7352 of 2018 was permitted to be urgently circulated by the Court looking to the acute urgency and thereafter other cognate matters have been tagged with upon request of learned advocates along with this main petition and as such by treating the Special Civil Application No.7352 of 2018 as a lead matter present controversy is dealt with by the Court.
2.1 So far as Special Civil Application No.7352 of 2018 is concerned, these petitioners have rushed down to this Court on the premise that they are residing in the locality known as "Badiyadev Vaas" at Village : Borij, District : Gandhinagar for about ten years by putting up their respective construction over the land which had been given electricity connection, water connection, gas connections by various authorities. It is the further case of the petitioner that earlier in the month of April, 2017 a similar demolition drive was sought to be conducted and some of the Page 2 of 24 C/SCA/7560/2018 ORDER petitioners have approached by way of writ petitions which are still pending and by projecting that despite said process the authority has issued notice on 25.04.2018 directing the petitioners to vacate the premises which are residential as the same is nothing but an encroachment and directed to vacate the premises within three days failing which appropriate steps will be taken. Some of the petitioners were served with notice on 30.04.2018 and some were on 01.05.2018 but in sum and substance, it is the case of the petitioners that without granting any opportunity or without any prior notice straightway by alleging that the petitioners have encroached the government land, the action of the demolition is initiated. The petition was permitted to be circulated in which notice was issued and in the meantime status quo was ordered to be maintained and pursuant to the said issuance of notice, the respondent authorities have also come out with a reply as well as further affidavitinreply to justify their action of demolition.
2.2 So far as petition being Special Civil Application No.7355 of 2018 is concerned, some of twenty five petitioners have approached in the similar way to this Court for challenging the legality and validity of the notice dated 25.04.2018 directing the petitioner to vacate the house and these petitioners are residing since number of years some of them are since their childhood and by contending that there is no other alternative accommodation for them and therefore challenged the action of demolition by treating the same as arbitrary, unjust and improper and has contended also that the State of Gujarat has issued Urban Slums Policy to which the petitioners are entitled and, therefore, without extending benefit of such policy, which has been framed in the year 2013, no action of demolition be permitted. Here also the status quo order is granted since the earlier petition was also of the same area, hence Page 3 of 24 C/SCA/7560/2018 ORDER ordered to be heard along with these petitions wherein also affidavitinreply is also filed.
2.3 So far as Special Civil Application No.7755 of 2018 is concerned in this petition also some eight petitioners have approached this Court by way of petition under Article 226 of the Constitution of India who are residing at Village: Borij, District:Gandhinagar and the locality is known as 'Chamunda Mandir Vaas' since about 25 years by now and they are also of the same area. It has been contended by these petitioners that Respondent No.4 has wrongly issued notice to the petitioners as if they are residing in Baliyadev Vaas whereas in fact the petitioners are residing at Chamunda Mandir Vaas. These petitioners have also approached the Court by taking shelter of petition being Special Civil Application No.7352 of 2018. Hence, the same is also kept with aforesaid matters. In this also Respondent No.4 has submitted affidavitinreply.
2.4 Substantially, here is the case in Special Civil Application No.7466 of 2018 in which by invoking extra ordinary jurisdiction of this Court some 13 petitioners have approached and rushed down this Court challenging the very same kind of notice dated 25.04.2018 and has contended that they are residing in this area since number of years. Some of them are residing since their childhood there is no other place of residence and despite the fact that the State of Gujarat has formulated the Urban Slum Policy in the year 2013, the benefit has not been extended to them and has further contended that since in Sector 13 and 14, the hutmen have been accommodated, these petitioners also may be accommodated and thereby the issuance of notice dated 25.04.2018 is challenged on substantially the same grounds on which other petitions are.
Page 4 of 24 C/SCA/7560/2018 ORDER2.5 Yet another petition being Special Civil Application No.7560 of 2018 is concerned, this petition also submitted under Articles 226 and 227 of the Constitution of India and invoked extra ordinary jurisdiction by twenty petitioners challenging the very same kind notice dated 25.04.2018 and has prayed for protection against demolition and also for setting aside the impugned notice. Here also these petitioners have come out with a case that they are residing since number of years they are provided with infrastructure facilities which is being maintained by Municipal Corporation. They are provided with electricity connection, drainage connection, water connection and so much so gas pipeline is also provided and without extending any opportunity prior in point of time straightway notice came to be issued. These petitioners are also claiming similarity to that of a lead matter i.e. Special Civil Application No.7352 of 2018.
2.6 Since all these petitioners are raising similar issue of demolition, the learned advocates mainly Mr.Thakkar and Mr.Dhaval Barot have led the group and have contended that action on the part of the respondent authority in demolishing and contemplating demolition is absolutely arbitrary, without the authority of law tainted with mala fide. Learned advocates have further contended that over these portions of land, the petitioners and family members are residing since number of years and, therefore, when they are to be uprooted procedure established by law must have been undertaken and appropriate opportunity could have been granted. It has also been contended that simply because the petitioners are in occupation of Government land that itself cannot be a ground to throw them away without due procedure of law. Some reasonable time could have been given to all the petitioners so that they may take some alternative measure either Page 5 of 24 C/SCA/7560/2018 ORDER to shift or to take recourse of law but abruptly by giving very short notice straightway demolition has been initiated which exercise of power is thoroughly not recognised by law.
3. Learned advocates have further contended that may be that these petitioners are not having any right, title or interest over the land in question but the very fact that they are allowed to be on place in question since numbers of years would not ipso facto allowed the authority to pull down the construction which the petitioners with their hard efforts have constructed and sustained family needs. It has been contended that had there been such gross case of encroachment even the authorities could not have provided water connections, drainage connections even the electricity is also provided. Now these petitioners are residing since numbers of years armed with such facility which has been provided by statutory authorities they cannot be treated as rank tresspassers over the government land and therefore could not have been dealt with like this and this is the classic example of arbitrary act on the part of the respondent authorities.
3.1 Learned advocates have further contended that apart from this, that there may not be legal right in strict sense to occupy and to continue to occupy the government land in question but then respondent authorities in a similar situation which has erupted in other sectors near Gandhinagar have formulated a scheme under 'Urban Slums Policy' and have accommodated more than 600 people at least that could have been considered before straightway demolishing the premises that too residential belongings of the petitioners.
3.2 It has been further contended that in the year 2013 there was a clear policy issued in the month of July, wherein the cases have Page 6 of 24 C/SCA/7560/2018 ORDER been considered of those who have occupied and continued to occupy the government land for number of years and, therefore a special policy was formulated whereas in this case by just issuing three days' notice straightway demolition process was undertaken. Hence this action is beyond the scope of principle of reasonableness and exercise of powers by the authority is absolutely arbitrary, against the principle of fairplay and based upon discrimination and, therefore impugned notices deserve to be quashed and set aside in the interest of justice.
3.3 Learned advocates have further contended that these are the petitioners who are residing over for number of years and to uproot them abruptly in such an inhuman way is not reasonable. The respondent authorities on the contrary should have an approach of locoparentis and keeping in mind the large number of houses, some human approach could have been shown. Having not done so, this is a glaring case of arbitrary act which cannot be overlooked.
3.4 It has further been contended that by giving short notice, a chance of representation was also deprived of and almost in similar manner, in the month of April, 2017, when the demolition drive was undertaken, some of the petitioners had to approach this Court by way of writ petition which is yet pending and, therefore, in no circumstance it is possible to construe that action is based upon the touchstone of Articles 14, 19 and 21 of the Constitution of India. The State being the authority is under an obligation to act under reasonable manner and extend the similar benefits if this is have been granted and as such the action cannot be said to be just and proper. Learned advocates have further contended that the case to case examination could have been undertaken of each of the petitioners before taking action in this regard. Having not done so, the authority has transgressed its authority in acting in such a Page 7 of 24 C/SCA/7560/2018 ORDER manner which requires kind intervention of this Court. Ultimately, learned advocates have drawn attention to various documents attached with the petition as well as reply affidavit and have contended that even if there is no case on merits at all then also some breathing time could have been granted.
3.5 In fact, during the course of hearing an element of overall consensus was generated in which some reasonable time be given to the petitioners upon filing of specific undertaking which would meet the ends of justice but thereafter learned advocates appearing for the petitioners have submitted that some of the petitioners are not ready for filing undertaking whereas some are ready to undertake so as to get reasonable period. Hence, in such a contradictory stand being taken by petitioners inter se it was though it fit by learned advocates go on with the matter so as to see that appropriate decision can be passed by the Court and as such with this background these petitions are heard by the Court. No other submissions have been made. Other learned advocates have raised no other contentions and have adopted same stand.
4. To meet with the stand taken by the petitioners in this group of petitions, the State authorities and precisely Respondent Nos.3 and 4 have submitted detailed reply and the learned Government Pleader Ms.Manisha Lavkumar Shah has represented the State Authority and has vehemently contended that there is absolutely no right, title or interest of the petitioners over the land in question and undisputedly the land is a government land and, therefore, no such encroachment to be allowed by the State and as such public places may not be allowed to be utilised absolutely unauthorisedly and thereafter coming out with a case of accommodation in some slum policy.
Page 8 of 24 C/SCA/7560/2018 ORDER4.1 Learned Government Pleader has vehemently contended that it appears that there is no policy in which the petitioners can be accommodated and in fact has clarified aptly that earlier policy which was framed was framed in a peculiar set of circumstance and the same has been clarified in detail in affidavitinreply. With a view to substantiate her contention, learned Government Pleader has pointed out some averments contained in affidavitinreply filed by the Respondent No.3 as well as Respondent No.4.
4.2 Learned Government Pleader has further contended that district Gandhinagar has its own peculiarity and entire Gandhinagar has been developed by merging several surrounding villages. It has been stated that survey numbers of Village: Borij of Tal.Dist.Gandhinagar have been encroached upon by the present petitioners. Learned Government Pleader has further contended that previously also an attempt was made to remove them but under one pretext or other, they have evaded it successfully till date and, therefore, no indulgence to be shown to the petitioners as they are rank tresspassers having no authority to occupy the land in any manner whatsoever. Learned Government Pleader has further contended that these persons are land grabbers, headstrong persons and it has been noticed that one person is collecting rent from various houses and some of the members are indulging into unlawful activity as well. Not a single documentary material is available with these petitioners to indicate that they have any lawful right to occupy the government land. Learned Government Pleader has further contended that on the contrary though there is a specific board pasted on the site that this land is belonging to the government authority, the petitioners have outrightly occupied and hence their occupation has no force of law in any way. It has been contended specifically that benefit of the scheme which has been Page 9 of 24 C/SCA/7560/2018 ORDER sought to be obtained of Government Resolution dated 03.07.2003 none of the petitioners are admittedly falling within the compass of said resolution. On the contrary, at the time when the said Government Resolution was published dated 03.07.2003, three main -prescriptions were highlighted.
(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 tobe 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 ineligible. Petitioners are not falling in any of the category.
4.3 Learned Government Pleader has pointed out that originally Ahmedabad was identified as a capital of Gujarat. However, on account of various reasons geographically, Gandhinagar was found to be more feasible to be treated as capital city and as such by virtue of Notification dated 23.12.1969 by notifying various villages in revenue limits capital city Gandhinagar came to be set up. Other Page 10 of 24 C/SCA/7560/2018 ORDER inclusion of villages is one of the villages Borij as well. These lands belonging to the villages came to be acquired by Special Land Acquisition Officer (capital project) for Roads and Building Department through Executive Engineer, Capital Project, Div.No.II, Gandhinagar and as such when the lands have been acquired for the specific purpose by paying appropriate compensation to the land owners at the relevant point of time. This land cannot be claimed by any person and the encroachers cannot be encouraged at all when the area is merged into authority by operation of the law and by taking appropriate formalities contemplated under the various laws hence, as such Gandhinagar area is having peculiarity as compared to other areas of State.
4.4 It has been contended that with a view to planned development of Capital city, the ownership of the government land vests with the Road and Building Department i.e. Executive Engineer, Capital Project, Div.II and not with Urban Authority and, therefore, any of the scheme which is sought to be relied upon cannot be read in isolation by the petitioner and as such no benefit can be extended as straight jacket formula. On the contrary, no similarity can also be claimed by petitioners in this view of the matter.
4.5 Learned Government Pleader has further contended that by virtue of specific Notification dated 16.03.2010 issued by Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar is amply clear to the extent that all government lands within peripheral limit of capital city in the notified areas shall not vest in Gandhinagar Municipal Corporation and, therefore, by drawing an attention to this Notification a contention is raised that at least Municipal Corporation has no authority but office of Executive Engineer, Capital City, Sub Division has authority and, Page 11 of 24 C/SCA/7560/2018 ORDER therefore, notices which have been issued are issued with force of law and with specific authority and, therefore, to seek the benefit of rehabilitation is not to be as a straight jacket formula.
4.6 Learned Government Pleader, on the contrary, has contended that a specific policy was framed on 03.07.2003 by Roads and Building Department by constructing flat type structure 800 in numbers and after a specific Circular some 800 in numbers have been allotted after fulfilling the norms prescribed by the Government Resolution dated 22.01.2015 and, therefore those who are found to be eligible have already been accommodated by giving alternative accommodation. A further fact has been pointed out by learned Government Pleader that the policy of the Urban Development and Urban Housing Department can be availed of only if it is applied to the areas and territories where the management is under their control and, therefore there is absolutely no legal right much less fundamental rights to claim as a matter of right the benefits prescribed under the aforesaid policy. In fact, it has been contended that when the issue of accommodation of 800 families have been dealt with even the photographs have been taken of the entire area, the Google map has also been prepared which has clearly indicated that these petitioners are not the person who have been over the place from the time which they are contending. Minute analysis has been undertaken at that point of time and only thereafter original persons were given and extended the benefit of slum policy.
4.7 With a view to substantiate such contention, google map which has been attached with the affidavitinreply on page:78, the first google map which is taken in the year 2002 has stated position which was prevailing was quite different. The earmarked portion indicates very less area in occupation. At page:79, the google map Page 12 of 24 C/SCA/7560/2018 ORDER taken in the year 2012 has indicated some more residential accommodation and the position has become worst day by day which can be seen from the google map of 2014 reflecting on page:80 and the present 2018 google map on page:81 is indicating that in what mashroom manner the encroachment has taken place and therefore when such is the position, in absence of any lawful right over the land in question, none of the litigants before this Court be given equitable relief as prayed for, as admittedly these petitioners are rank tresspassers of the Government land and rather not entitled to occupy the land in any manner.
4.8 Ms.Shah, learned Government Pleader has further contended that original policy of 03.07.2003 has already been implemented and the persons falling within policy have been accommodated and, therefore, it cannot be said that action is unjust or arbitrary. Knowing fully well that this is not a land not pertaining to them and knowing fully that this is open government land petitioner have no right, title and interest to continue, to occupy the same and as such the land on which the petitioners are residing deserves to be vacated forthwith and, therefore no indulgence be shown to the petitioners. On the contrary, it has been pointed out that when original scheme was floated and implemented, Clause : 15(2) of the said Resolution dated 03.07.2003 is making it apparent clear that the houses which were not entitled under the scheme, not fulfilling criteria the same shall be demolished and, therefore if on account of some circumstances prompt steps have not been taken by any of the official that would not give license to the petitioners to occupy and encroach upon the government land. On the contrary, it has been contended that earlier policy cannot be equated to claim any discrimination. On the contrary, these petitioners are in the sensitive zone and have encroached upon the Page 13 of 24 C/SCA/7560/2018 ORDER prime located land without any authority of law and as such for the purpose of security measures also these encroachments are required to be uprooted from which they have no legal right and, therefore issuance of notices and taking action cannot be said to be unjust and arbitrary.
4.9 While substantiating these submissions, the documents which have been attached with affidavitinreply are shown to the Court which are very much supplied to the petitioners and based upon such, the policy dated 03.07.2003 has also been explained. The government resolution dated 22.01.2015 has also been attached to indicate that 800 flats have been constructed and rehabilitated some more than 600 persons in the area by imposing suitable conditions. Hence, having all such accommodation cannot be claimed as a matter of right to assail the action on the ground of discrimination and, therefore no case is made out by any of the petitioner to seek relief as prayed for in the petition.
4.10 At this stage, from petition being Special Civil Application No.7560 of 2018, an attention is drawn to the Government Resolution dated 18.07.2013 issued by Urban Development and Urban Housing Department in which the policy was framed to accommodate approximately seven lakhs hutmen dwellers on the basis of Rules, 2010 and as such whether any scope is available to respondent authority to accommodate the hutment dwellers the steps have been taken but then amongst these petitioners, none of them are falling within purview of such policies to be claimed as a matter of right and, therefore, the authority has justifiably issued notices of demolition. Learned Government Pleader has submitted that in this peculiar set of circumstance even if there is absolutely no legal right, title or interest to occupy the government land but looking to the present hot environment if Court deems it proper to Page 14 of 24 C/SCA/7560/2018 ORDER extend some reasonable time, there shall be no objection to the authority for grant of such time but then each of the petitioner shall submit an undertaking before this Court to vacate the premises.
5. At this stage, as counter to this, Mr.Barot, learned advocate has contended that at least the government should consider the case with human approach because ultimately they are citizens of this country and even if on account of hard time if the petitioners have encroached upon the land then from which period they have encroached upon, whether they are entitled to get the benefit of those policies, whether they are falling within the purview of rehabilitation policy, every aspects are to be examined by the State Authority on case to case basis and as such no ominbus protection even petitioners wanting / claiming and, therefore, authorities may be directed to examine the case of each of the petitioners and then pass appropriate order and ultimately by submitting this, Mr.Barot, learned advocate has left the matter for ultimate outcome.
6. Having heard learned advocates appearing for the parties and having gone through the record, which has been placed before this Court, few circumstances are not possible to be unnoticed by this Court.
6.1 It is undisputed from the record that none of the petitioners are having any valid title or interest over the land in question and no such valid documents or title and, therefore, all the petitioners are in possession and continued the occupation without any force of law 6.2 It is also emerging from the record that majority of the petitioners have been in the area not since long but are residing from the recent past;
Page 15 of 24 C/SCA/7560/2018 ORDER6.3 It is also emerging from the record that when the google maps have been taken, the area in controversy was found to be surrounded not with heavy construction or encroachment in the year 2012 and when it has been compared in the year 2014 some encroachment has increased and in the year 2018 majority portion is encroached upon by the persons like the present petitioners;
6.4 It is also emerging from the record that simply because they are provided with common amenities, ipso facto would not convert the petitioners into lawful occupation of the land in question and, therefore, in substance, these petitioners are not having any valid title over the land in question and to continue to occupy the same without any valid title;
6.5 It is further appearing from the record that on earlier occasion, the Government has provided a scheme by enlarging accommodation to substantial extent to those who were eligible and found to be fulfilling the norms of the policy and at that juncture when the entire survey of Gandhinagar was taken, petitioners were not finding any place;
6.6 It is also emerging from the record that Village : Borij is definitely falling with the periphery of 'Patnagar Yojna Bhavan' control over such portion lies with the Government department and not with the Gandhinagr Municipal Corporation. On the contrary, the Notification dated 16.03.2010 has made it clear that Government land situated in entire Gandhinagar notified area shall not vest on the contrary in corporation. However, be that as it may, it appears that the local authority does not have any land under its management and there is no land in the entire Gandhinagar notified as 'Slum' so as to extend the benefit of any policy. It is also Page 16 of 24 C/SCA/7560/2018 ORDER emerging from the affidavitinreply submitted by Respondent Nos.3 and 4 that some of the headstrong persons are handling over the affairs of this encroachment area because in one of the statements of Vinitkumar Pyarelal, dated 04.03.2013, it has been clearly admitted and he has paid and dealt with one Alpesh Kailasgiri Goswami an amount of Rs.3500 for the purpose of procuring plot in the name of his wife and this fact concurred by Alpesh Goswami himself. The narration of affidavitinreply indicates that there are serious disputes of facts with regard to occupation of petitioners to a substantial extent. Some monitory transactions have taken place with another Rajubhai Dhulabhai Parmar etc. and, therefore, irrespective of such the basic occupation of plot i.e. land in question over which the petitioners are residing is under banner of 'encroachment' and there is no lawful authority with any of the petitioner to continue withy the same.
6.7 In one of the petitions, a contention is raised that the land was merged in Gandhinagar under the provisions of Special Land Acquisition process but then having not been given anything and as such continued in possession. However, be that as it may, to a great extent it is emerging from the record that this occupation of the petitioner is absolutely without authority of law, their possession is not backed by any valid title and further none of the petitioners are entitled to the scheme which has been floated by the Government. Even when the survey was carried out, as stated above, none of these petitioners were in existence as alleged and prima facie reflecting and, therefore, such benefit is not possible to be extended as has been made it clear by the respondent authority and therefore what is left with the petitioners is to seek some breathing protection so as to see that no hardship can cause any further in this hot temperature and can accommodate themselves elsewhere Page 17 of 24 C/SCA/7560/2018 ORDER or in the alternative during this breathing time the petitioner can approach the authority pointing out and represent their case. Nothing beyond is possible to be extended to the petitioners as the entire occupation is based on illegal mode;
6.8 It is also emerging from the record that sufficient opportunity appears to have been given and when in the year 2017 steps were contemplated, these petitioners were aware about such move and for a pretty long period they continued to occupy which circumstance may not give any rise to favour the petitioner.
7. The overall record indicates that these are the petitioners who are not having any right, title or interest over the land in question as unable to justify by documents and this is more so when candidly learned advocates appearing for the petitioners, precisely Mr.Thakkar, learned advocate, who lead the group, has admitted that there is no statutory right in favour of petitioners to make the request for continuing over the land and as such what is left with the Court is to consider that some human approach to extend the period of notice dated 25.04.2018 be considered, to some extent.
8. Now before considering the ultimate request to grant some breathing period, the Court has to keep in mind various propositions of law laid down by Hon'ble Apex Court and this Court with regard to an issue how to be dealt with when there is an example of encroachment of Government land and so as to arrive at a just decision this Court has take in aid following decisions delivered by Hon'ble Apex Court and some of the relevant observations are reproduced herein after since have been considered by this Court while passing the present order.
Page 18 of 24 C/SCA/7560/2018 ORDER8.1 In the case of Asikali Akbarali Gilani vs. Nasirhusain Mahebubbhai Chauhan reported in (2016) 10 SCC 799, more particularly paras:15 and 16, are since relevant observations, are reproduced herein after, wherein Hon'ble Apex Court has dealt with a situation regarding the municipal land and has observed that municipality is a trustee and therefore should ensure that public streets are not encroached upon and further municipality cannot lease out any portion of public street. Considering the large scale demolition drive in the area, Hon'ble the Apex Court has directed the Collector to have case to case examination and by undertaking such process, if found that structure has been erected after cutoff date, no right of rehabilitation would ensure to the applicant for unauthorise structure on the public property. Now herein in the said decision, the Hon'ble Apex Court was dealt with in an issue where there was lease to the extent of 896 and in that process original entries of occupants were with process of law and in that circumstances also the Hon'ble Apex Court has held that, if the occupants are found to be after cutoff date then they may be removed, whereas, here in a case on hand, neither there is any lease nor there is any lawful entry nor any remote right is visible which would entitle any protection to the petitioners. More so, learned advocate appearing for the petitioners Mr.Thakkar has candidly submitted that there is no right, title over the land to occupy but since several years they are on the land some human approach to be shown. But so far as legal right to occupy is concerned, none of the applicants are having any such right and this Court found that in absence of any lawful authority to occupy public property, no one should be allowed to use, occupy or construct upon it. Simply because the petitioners are residing since number of years would not give license to them to continue unauthorised construction. Hence, in absence of any legal right in Page 19 of 24 C/SCA/7560/2018 ORDER favour of petitioner, the Court would not incline to issue a writ of mandamus.
"15. However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorised occupants to alternative location, if the unauthorised structure in occupation of a given person has been tolerated for quite some time or has been erected before the cutoff date to be specified in that regard. If the structure has been erected after the cutoff date, no right of rehabilitation would ensure to the occupant(s) of the unauthorised structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy with six months from today, if already not in existence.
16. The State Government will be free to consider the request of the occupants of unauthorised structures on the subject public property including to ratify the resolution passed in their favour by the Executive Committee of the respondent municipality, provided it is in conformity with the expounded policy. If that request is accepted, the Government will be free to provide for such terms and conditions, as may be permissible in law."
8.2 The Court also found that policy which was relied upon was related to a different situation altogether and it is the case in which even no remote right is reflecting. Hence, advisably even the petitioners have not stretched the issue beyond a particular stage. The petitioners have made a request to the Court that they may be permitted to represent before the respondent authority and respondent authority may independently look into the plight of the petitioners and findout some way to rehabilitate by formulating some policy keeping in mind their long standing possession over the land. While considering this request of the petitioners, the Court found from the record that with regard to slums dwellers and hutmen in entire Gandhinagar area, a systematic accommodation move has already taken place at the instance of respondent authorities and after making proper survey, the authority have Page 20 of 24 C/SCA/7560/2018 ORDER rehabilitated more than 600 hutmen and the petitioners have erupted thereafter. As per the say of the authority petitioners stand on a different footing and, therefore as a matter of right the petitioners are not entitled to claim to retain the possession. Upon overall view of the matter it was noticed by the Court that these petitioners have been over the place may be not for a long period but for quite some time and their houses are well connected with the electricity supply, water supply, gas supply lines are also attached to some of them and the what is reflecting on the paper would indicate that they are residing since number of years and, therefore, it would be desirable that if the petitioners are permitted to approach the authority, the authority can find some way to them either for evolving some policy or if found suitable can extend the benefit of rehabilitation policy but the same would be exclusively left upon the respondent authorities. This permission to approach the authority is granted in view of peculiar set of circumstance since the Court found that it is complete inaction on the part of State rather it is tacit consent that has resulted into several citizens being placed in precarious position where they are now after this much period liable to be removed at any time and as such Court found that the petitioners cannot be made victims of such culpable failure of State officials to implement and enforce the law since number of years and now has suddenly woke up from the slumber. It is not digestible to take a note that unless and until there is some deliberate inaction, over the government land this kind of Pakka construction in a short while could have come up and also these construction must not have been the supply of electricity, water connection, drainage system as well as even gas connection. Therefore, it appears that even if at this juncture what has been found that these persons are nearby VIP areas is dangerous possibly this apprehended threat appears to have been ignored over the Page 21 of 24 C/SCA/7560/2018 ORDER period of time and as such abruptly now to dismantle the structures of all these petitioners, without giving breathing time, would not meet with the test of reasonableness on the part of the authority and as such the following observations made by Hon'ble Apex Court in the case of Godrej and Boyce Mfg. Co. Ltd. vs. State of Maharashtra reported in AIR 2014 SC 1446, Court deems it proper to reproduce some of the observations contained in paras:80, 81 and 82 of the said decision.
"80. The application of the principle laid down by this Court, therefore, depends on the independent facts found in a case. The remedy of demolition cannot be applied per se with a broad brush to all cases. The State also seems to have realized this and that is perhaps the reason by it moved the application that it did in Godavarman.
81. Looking at the issue from point of view of the citizen and not only from the point of view of the State or a well meaning pressure group, it does appear that even though the basic principle is that the buyer should beware and therefore if the appellants and purchasers of tenements or commercial establishments from the appellants ought to bear the consequences of unauthorized construction, the wellsettled principle of caveat emptor would be applicable in normal circumstances and not in extraordinary circumstances as these appeals present, when a citizen is effectively led up the garden path for several decades by the State itself. The present appeals do not relate to a stray or a few instances of unauthorised constructions and, therefore, fall in a class of their own. In a case such as the present, if a citizen cannot trust the State which has given statutory permissions and provided municipal facilities, whom should he or she trust?
82. Assuming, the disputed land was a private forest, the State remained completely inactive when construction was going on over acres and acres of land and of a very large number of buildings thereon and for a few decades. The State permitted the construction through the development plans and by granting exemption under the Urban Land (Ceiling and Regulation) Act, 1976 and providing necessary infrastructure such as roads and sanitation on the disputed land and the surrounding area. When Page 22 of 24 C/SCA/7560/2018 ORDER such a large scale activity involving the State is being carried on over vast stretches of land exceeding a hundred acres, it is natural for a reasonable citizen to assume that whatever actions are being taken are in accordance with law otherwise the State would certainly step in to prevent such a massive and prolonged breach of the law. The silence of the State in all the appeals before us led the appellants and a large number of citizens to believe that there was no patent illegality in the construction on the disputed land nor was there any legal risk in investigating on the disputed land. Under these circumstances, for the State or the Bombay Environment Action Group to contend that only the citizen must bear the consequences of the unauthorised construction may not be appropriate. It is the complete inaction of the State, rather its active consent that has resulted in several citizens being placed in a precarious position where they are now told that their investment is actually in unauthorised constructions which are liable to be demolished any time even after several decades. There is no reason why these citizens should be the only victims of such a fate and the State be held not responsible for this state of affairs; nor is there any reason why under such circumstances this Court should not come to the aid of victims of the culpable failure of the State to implement and enforce the law for several decades."
8.3 In view of aforesaid position which is prevailing on record, the Court deems it proper to allow the petitioners to approach the respondent authority with a request to consider their grievance. The Court also deems it proper to grant some time in view of this peculiar set of circumstance till 31.05.2018 during which it would be open for the petitioners to take out appropriate steps to represent before the authority or to accommodate elsewhere.
8.4 This time upto 31.05.2018 which has been granted is the time to the petitioners as their occupation may be long standing but without having any force of law and encroachment over the government land cannot be given any longdrawn protection. Hence in view of aforesaid discussion and in view of aforesaid peculiar set of circumstances, these petitions stand disposed of and it is directed Page 23 of 24 C/SCA/7560/2018 ORDER that till 31.05.2018 the respondent authorities are restrained from taking any step of demolition of the structures of the concerned petitioners. This Court has not expressed any opinion either to consider the request of the petitioners or not to consider. It is exclusively left open for the respondent authorities to deal with and decide the representation but it is expected that such representation shall be in true letter and spirit be dealt with in accordance with law.
9. With the above observations and directions, all these petitions are disposed of having not entertained. Notice discharged. No order as to costs. Direct service is permitted.
(A.J. SHASTRI, J) MISHRA AMIT V. Page 24 of 24