Gujarat High Court
Abdullabhai Shardulla Ghoghari vs State Of Gujarat on 9 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16767 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 483 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ABDULLABHAI SHARDULLA GHOGHARI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. PREMAL NANAVATY, ADV. WITH MR VIRAJ B KHATANA(10416) for
the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,3,4,5,6,7,8,9
MR. ROHAN RAVAL, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,4,5,6
KAUSHAL PANDYA, for the Respondent No.3 in SCA 16767 of 2023
G H VIRK(7392) for the Respondent(s) No. 3 IN SCA 483 of 2024
MR SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/02/2024
ORAL JUDGMENT
1. Since the issues raised in both the petitions are Page 1 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined identical, the same are heard analogously and are being disposed of by this common order.
2. The Petitioners in SCA No. 16767 of 2023 have challenged the Notice cum Order dated 08.09.2023 issued u/s 260(2) of the GPMC Act,1949 (page -28 to 33 & 33/1 to 33/82) for the unauthorized construction carried out upon land bearing Survey No. 252/p & 251 /p of mouje Village Vadva, Taluka City & District Bhavnagar. The Petitioners have also prayed to quash and set aside the notice dated 08.09.2023 issued by the respondent no.6 -Town Development Officer, Bhavnagar Municipal Corporation (BMC), permanently restrain the concerned respondents from implementing impugned notice and to direct the respondents to accept the impact fee and regularize the construction of petitioners under the provisions of the Gujarat Regularization of Unauthorized Development ordinance -2022 (GRUDA-2022).
3. Brief facts leading to filing of the petition SCA No. 16767 of 2023 read thus:
3.1 The original predecessors and forefathers of most of the petitioners were allotted the land in question by the Ruler of the erstwhile state of Bhavnagar for Dhobi Ghat.
Initially land was allotted to one Dhobhi Umar Hasan, Mir Kasim and five others in the year 1937 and mutation Page 2 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined entry no.339 mutated on 18.11.1937 , on 15.01.1972 after considering the history of the land the concerned authority had inserted entry no.1312 dtd. 15.01.1972 and have passed an order once again allotting the land in question for the purpose of Dhobi Ghat, same has been continued till 1977 in the village form 7/12.
3.2 In the year 1985 Concerned Revenue Authority had declared the list of occupiers of said land allotted for purpose of Dhobi Ghat, vide entry no. 2489 dtd.16.09.1985.
3.3 On 02.08.2004 after a period of almost 19 years concerned Talati has cancelled the earlier entry vide entry no. 3471 on the basis of Rule 108 (6) of the Gujarat Land Revenue Rules ,1972 in an absolutely arbitrary manner and against the Settled Principle Of law.
3.4 Once again on 08.07.2008 entry no. 3608 has been recorded inter alia holding that though the land in question was given for the purpose of Dhobi Ghat, it was being used for residential purpose and therefore, , it amounts to breach of condition as per section 68 of the Gujarat Land Revenue Code 1879 therefore the land should be treated to have been vested in the name of the Government as per section 79 (a) of the Code,1879. The entry which was recorded on 08.07.2008 was given effect Page 3 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined from 19.02.2011 which speaks for itself how the revenue authorities have acted absolutely in an arbitrary manner and without following the procedure of law. Pursuant to said order the land bearing Survey Nos.252/1 & 251/1 has been mutated in the name of Government Waste (Kharaba) land.
3.5 Be as it may, abovementioned facts and circumstances petitioners are heirs of original allottee Viz. late Umar Kasam and Others, who were originally allotted the land by the erstwhile state of Bhavnagar. Inspite of this, the concerned respondent vide earlier notice dtd.01.08.2023 issued u/s 260 (1) of the GPMC Act, 1949 to show cause why the construction should not be removed since it is constructed without permission and in contravention of applicable GDCR, and subsequently the order cum notice issued u/s 260 (2) of the GPMC Act,1949 to petitioners.
3.6 Petitioners cannot be by any stretch of imagination said to be Encroachers or trespassers on the land in question , the only breach , if ,at all there is any , is that the petitioners have constructed residential houses on the land contrary to the applicable GDCR and same can be Regularized on Payment of premium.
3.7 One of the petitioners viz Yusuf Ghoghari Appears to Page 4 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined have agitated the issue pursuant to earlier notice , which is received by the petitioner u/s 37 (2) of the Bombay Land Revenue Code , before the Revenue authorities who has rejected the said application by order dtd.31.07.2017 against the said order petitioner preferred appeal before the collector, Bhavnagar who has rejected the appeal and confirmed the order passed by the Dy. Collector, Bhavnagar. Thus , it is clear that except said petitioner i.e. Yusufbhai Ghoghari, it is not within the knowledge of the rest of the petitioners that the petitioners were ever issued such notices in the year 2016. Thus, this is first time that impugned notices have been issued in the year 2023 u/s 260 of the GPMC Act,1949. In view thereof, prayed for the following reliefs:
"18 The petitioners therefore pray that:-
(A) This Honourable Court may be pleased to admit and allow this petition;
(B) This Honourable Court may be pleased to issue a writ of mandamus or certiorari or a writ in nature of mandamus or certiorari or any other appropriate writ, order or direction to quash and set aside the impugned notices dated 8.9.2023, which are at ANNEXURE-A colly. issued by Respondent No.6 and thereby further be pleased to quash and set aside the impugned action of the proposed eviction/ demolition of the premises occupied by the petitioners at the address shown in the cause title of the petition and thereby permanently restrain the concerned respondent/s from implementing the Page 5 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined impugned notices at Annexure-A to the petition;
BB) By issuing appropriate writ, order or direction this Honourable Court may be pleased to quash and set aside the impugned notices dated 8.9.2023 which are produced at Ann;A and Ann;AA (collectively) issued by the Respondent no.6 and thereby further be pleased to quash and set aside the impugned action of the proposed eviction/ Demolition of the premises occupied by the petitioners at the address shown in the cause title of the petitionand thereby permanently restrain the concerned respondents from implementing the impugned notices at Ann:A and Annexure:AA produced with petition the construction under the said Ordinance either to evict/demolish the premises of the petitioners occupied by them more particularly on the land bearing Revenue Survey No.252/1 and 251/1 of village Vadva, Taluka City and District Bhavnagar;
(C) This Honourable Court may be pleased to issue a writ of mandamus or certiorari or a writ in nature of mandamus or certiorari or any other appropriate writ, order or direction directing the concerned respondent/s to regularize the construction of the petitioners on such terms and conditions as this Honourable Court may deem just and proper by directing the concerned authority to accept the impact fee applicable under the Gujarat Regularization of Unauthorised Development Ordinance 2022 and regularize the construction under the said Ordinance 2022.
D) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to stay the implementation, execution and operation of further Page 6 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined proceedings arising out of the impugned notices dated 8.9.2023 issued by Respondent No.6 and thereby restrain the respondent-authorities from taking any coercive action either to evict/ demolish the premises occupied by them more particularly on the land bearing Revenue Survey No. 252/1 and 251/1/ of village Vadva, Taluka City and District Bhavnagar;
(E) Ad interim relief in terms of prayer (D) may kindly be granted;
(F) That this Honourable Court may be pleased to pass such other and further reliefs as the nature and circumstances of the case may require."
4. The petitioners in SCA No. 483 of 2024 have invoked Article 226 of the Constitution of India, challenging the impugned notice dated 2.1.2024 issued by the respondent No.6 under Section 260(2) of the Gujarat Provincial Municipal Corporations Act, 1949 (for short "the GPMC Act) whereby the petitioners were directed to remove the construction allegedly illegally constructed on the land in question within a period of 7 days from the date of receipt of the notice failing which the same will be removed by the Bhavnagar Municipal Corporation.
5. Brief facts leading to filing of the petition SCA No. 483 of 2024 read thus:
5.1 It is the case of the petitioners that the original Page 7 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined predecessors and forefathers of most of the petitioners were allotted the land by the erstwhile State of Bhavnagar. The said land was initially allotted to one Dobhi Umar Hasan, Mir Kasim and five others in the year 1937 and mutation entry No.339 in respect thereof has been mutated on 18.11.1937 and certified in the register maintained by the erstwhile State of Bhavnagar.
5.2 Pursuant to the said mutation entry, subsequent entries in Village Form No.6 as well as Form No. 7/12 have been continued by describing the land as land for Dhobi Ghat allotted to the erstwhile allottees and the same continued in the said Register of Village Form No. 7/12 till the year 1977.
5.3 Prior to 1977, the concerned authority, considering the history of the land inserted entry No. 1312 dated 15.1.1972, passed an order once again allotting the land in question for the purpose of Dhobi Ghat to the erstwhile allottees and their legal heirs and others who have been occupying the land including 16 out of 23 petitioners herein. The said entry dated 15.1.1972 have been mutated being mutation entry No. 1312 of 1972.
5.4 Subsequent to the said entry, another order was passed by the Deputy Collector dated 30.7.1973 by which the case initiated by the Collector against the Page 8 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined petitioners and other similarly situated persons occupying the land of Dhobi Ghat to opine whether said occupiers are holding the said land as encroachers and therefore, the Deputy Collector vide order dated 30.7.1973 informed them that the petitioners and other similarly situated persons cannot be said to be encroachers and it is not being proved on record.
5.5 Pursuant to the said entry, the land continued to remain as allotted to the present petitioners and ultimately vide entry No. 2489 dated 16.9.1985, the concerned Revenue Authority declared the list of occupiers of said land allotted for the purpose of Dhobi Ghat in favour of as many as 71 persons. The said list is not exhaustive, but includes names of few of the petitioners. After the said list was published vide entry No. 2489 it appears that one Mr. Ismal Husein, resident of Hindu Muslim Dhobi Mandal submitted an application for regularizing the construction made on the said land occupied by them. The competent officer and Deputy Collector vide communication dated 21.1.1989 informed the said President that no such formal permission for approval for plan was required to be obtained.
5.6 After the said entry was mutated on 2.8.2004 after a period of almost 19 years vide entry No. 3471, the concerned Talati has cancelled the earlier entry on the Page 9 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined basis of Rule 108(6) of the Gujarat Land Revenue Rules, 1972 in an absolutely arbitrary manner and against the settled principle of law that entry once mutated cannot be cancelled after a period of 19 years.
5.7 After the said entry was recorded, once again, on 8.7.2008, entry no. 3608 was recorded holding that though the land in question was given for the purpose of Dhobi Ghat, it was being used for residential purpose and therefore, it amounts to breach of condition as per Section 68 of the Gujarat Provincial Municipal Corporations Act, 1949 (in short "the GPMC Act") and therefore the land should be treated to have been vested in the name of the Government as per Section 79(A) of the said Act. The said entry which was recorded on 8.7.2008 was given effect from 19.2.2011. Pursuant to the said entry No. 3608 dated 8.7.2008, the land has been mutated in the name of the Government Waste (Kharaba) land. A copy of village Form No. 7/12 showing the land viz land bearing Survey No. 252/1 and 251/1 of mouje village Vadva, Taluka City and District Bhavnagar in the name of government as above, is duly produced at Annexure "H".
5.8 The petitioners herein are heirs of original allottee viz. late Umar Kasam and others, who were originally allotted the land by the erstwhile State of Bhavnagar viz.
Dhobi of Hindu as well as Muslim Communities and, Page 10 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined therefore, the petitioners cannot be said as trespasser or encroacher of the land in question.
5.9 The concerned respondent vide earlier notice dated 28.12.2023 issued under Section 260(1) of the Act along with the provisions of the Gujarat Town Planning and Urban Development Act, 1976 that since the construction of the houses is contrary to the applicable General Development Control Regulations (GDCR) , why the same should not be removed.
5.10 The respondent No.6, therefore, called upon the petitioners to produce the necessary documents to which petitioners produced all the necessary documents to show that they are legally occupying the premises and occupation of the land in question cannot be said to be illegal and inspite of that second notice was issued under Section 260(2) of the Act dated 2.1.2024. One of such notices issued against the first petitioner dated 16.3.2023 issued under Section 260(1) of the Act, is duly produced at Annexure -I to the petition.
5.11 The petitioners herein have orally requested the respondent No.6 that the petitioners are ready and willing to pay any premium for regularizing their construction and also showed their difficulties that though the petitioners have applied for regularization of Page 11 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined the construction on payment of certain charges, the applications of the petitioners are not accepted by the online portal because of peculiar format where the petitioners were not in a position to fill up the basis of ownership in absence of any registered document and, therefore, merely on the said ground the petitioners should not be non-suited particularly when the petitioner are also ready and willing to pay the required applicable impact fee for regularization of their construction.
5.12 The petitioners have also produced all the necessary documents showing their occupation till the erstwhile Bhavnagar State by the predecessor in title and subsequently the petitioners are occupying the said land since 1969.
5.13 In line of the aforesaid, the petitioners have produced the necessary light bills in respect of electric connection granted by the government electricity company, the tax bills through which the house tax has been collected by the Bhavnagar Municipal Corporation, the other common facilities like internal roads, drainage and water supply and gas connection. Over and above that, there is also a building of anganwadi constructed for the purpose of education of children. A Sulabh Sauchalaya is also constructed by the Government. Apart from that, religious places are also allowed to be Page 12 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined constructed viz. temple of Hanumanji and Masjid. The petitioners are also supplied with necessary gas connection. The copies of the electricity bills, tax bills, assessment bills, gas connection bills, etc are produced on record at Annexure "J" (Colly).
5.14 In fact, most of the petitioners are illiterate persons. It is submitted that one Yusufbhai Ghoghari, one of the petitioners, filed a Civil Suit in the Civil Court at Bhavnagar being Civil Suit No. 609 of 1994. The suit being very old one, the status of the same is not available on the official website.
5.15 It is stated that the impugned action of the concerned respondent is violative of principles of natural justice. Though a notice in the form of show-cause notice was issued, no hearing was granted and the petitioners were just instructed to produce the documents pursuant to the first notice. In light of the aforesaid, one of the petitioners herein Yusuf Ghoghari appears to have agitated the issue pursuant to the earlier notice, which is received under Section 37(2) of the Bombay Land Revenue Code (for short "BLRC") before the revenue authorities viz. Deputy Collector, who rejected the said application by order dated 31.7.2017. Against the said order, Yusufbhai Ghoghari preferred an appeal before the Collector, Bhavnagar, who rejected the said appeal and confirmed the order passed by the Deputy Collector.
Page 13 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined 5.16 The petitioners belong to the poor strata of the society and most of them are illiterate persons and therefore their record may not be up-to-date. In light of the aforesaid facts, the petitioners herein are constrained to approach this Court, invoking Article 226 of the Constitution of India. The Notices are even dated and the same has been issued to all the petitioners in respect of the land bearing Revenue Survey No. 252/1 and 251/1 of village Vadva, Taluka City and District Bhavnagar and in view thereof, prayed for the following reliefs:
"19 The petitioners therefore pray that:-
(A) This Honourable Court may be pleased to issue an appropriate writ, order or direction to quash and set aside the impugned notices dated 2.1.2024 issued under section 260(2) of the Gujarat Provincial Municipal Corporations Act, 1949 issued by Respondent No.6 which are at ANNEXURE- A colly and further be pleased to permanently restrain the concerned respondent from demolishing the properties of the petitioners on the land bearing Revenue Survey No.252/1 and 251/1 of village Vadva, Taluka City and District Bhavnagar;
(B) This Honourable Court may be pleased to issue an appropriate writ, order or direction directing the concerned respondent to regularize the construction of the petitioners on such terms and conditions as this Honourable Court may deem just and proper by directing the concerned authority to Page 14 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined accept the impact fee applicable under the Gujarat Regularization of Unauthorised Development Ordinance 2022 and regularize the construction under the said Ordinance 2022.
(C) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to stay the implementation, execution and operation of further proceedings arising out of the impugned notices dated 2.1.2024 issued by Respondent No.6 and thereby restrain the respondent-authorities from taking any coercive action either to evict/demolish the premises of the petitioners occupied by them more particularly on the land bearing Revenue Survey No.252/1 and 251/1 of village Vadva, Taluka City and District Bhavnagar;
(D) Ad interim relief in terms of prayer (C) may kindly be granted;
(E) That this Honourable Court may be pleased to pass such other and further reliefs as the nature and circumstances of the case may require."
6. Heard Mr. Premal Nanavaty, the learned advocate appearing for Mr. Viraj Khatani, the learned advocate appearing for the petitioners, Mr. Kaushal Pandya, the learned advocate appearing for respondent No.3 in SCA No. 16767 of 2023, Mr. G.H. Virk, the learned advocate appearing for respondent No.3 in SCA No. 483 of 2024 and Mr. Rohan Raval, the learned AGP appearing for the Page 15 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined respondent No.1 in both the petitions.
7. Mr. Premal Nanavaty, the learned advocate appearing for the petitioners submitted that the petitioners belong to poor strata of the society and most of them are illiterate persons and therefore their record may not be up-to-date. It was submitted that the petitioners herein are heirs and legal representatives of the original predecessors and forefathers of most of the petitioners, who were allotted the land by the erstwhile State of Bhavnagar in the year 1937 and in the intervening period, few transactions have been executed where the original owners of the premises in question have sold their premises by way of registered sale deed and there are such 8 to 9 cases.
7.1 It was submitted that names of the petitioners came to be mutated in the revenue records by mutation entry No. 339 on 18.11.1937 and certified in the register maintained by the erstwhile State of Bhavnagar. Pursuant to the said mutation entry, subsequent entries in Village Form No.6 as well as Form 7/12 have been continued by describing the land as land for Dhobi Ghat allotted to the erstwhile allottees and the same continued in the said Register of Village Form No. 7/12 till the year 1977. It was submitted that the respondent State, after a period of 19 years vide entry No. 3471, the concerned Talati Page 16 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined cancelled the earlier entry on the basis of Rule 108(6) of the Gujarat Land Revenue Rules, 1972, in an absolutely arbitrary manner and against the principles of natural justice.
7.2 Reliance was placed on the ratio laid down by the Hon'ble Apex Court in case of State of Gujarat v. Patel Raghav Natha, reported in 1969 (2) SCC 187. Mr. Nanavaty, the learned advocate submitted that the entry came to be reversed by the Collector without granting any opportunity of hearing to the petitioners. The petitioners herein are not encroachers to the land in question and having been allotted by the erstwhile State of Bhavnagar. It was submitted that there is a recommendation by Deputy Mamlatdar to the City Mamlatdar, Page-82, to regularise the land in question, as a Special Case, for residential purpose, by recommendation dated 9.2.2025, which is pending.
7.3 Reliance was placed on the order dated 22.9.2023 passed by this Court in SCA No. 16767 of 2023, which is duly produced at Page-87 (Colly), wherein the petitioners of the said petition were protected. By placing reliance on the same, it was submitted that the present petitioners are similarly situated to the petitioners of the SCA No. 16767 of 2023 and necessary interim orders be passed as has been done in SCA No. 16767 of 2023 and the present Page 17 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined petition be tagged with the said petition.
7.4 Mr. Nanavaty, the learned advocate placed reliance on the ratio as laid down in the case of Raliyatben Popatbhai Thummar v. State of Gujarat and Ors, reported in 2023 (1) GLR 472 and decision rendered in Special Civil Application No. 2764 of 2014.
7.5 It was lastly submitted that the respondent authorities neither considered regularisation of the subject land nor provided alternative accommodation to the petitioners, the petitioners being in occupation of the land since more than 40 years.
8. Heard Mr.Kaushal Pandya, the learned advocate appearing for the respondent No.3 in SCA No. 16767 of 2023.
8.1 Mr. Kaushal Pandya, the learned advocate appearing for the respondent No.3 submitted that the petitioners have made constructions upon land bearing R.S.No.251/p & 252/p mouje; Vadva, Bhavnagar without securing construction permission from the competent authority. It was further submitted that the land upon which the illegal construction being made is falling under the administrative jurisdiction of the Bhavnagar Municipal Corporation (BMC).
Page 18 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined 8.2 Mr. Pandya, the learned advocate submitted that the the 36 mtrs. Development Plan- 2031 road (DP Road) passing through these lands and the existing width of the road is only 6 to 8 mtrs.
8.3 It was submitted that the BMC has started construction of bridge near the land in question therefore, it is need of time to remove the illegal construction so, the 36 mtrs. Road can be open for smooth traffic movement.
8.4 It was further submitted that the majority petitioners have made construction on the 36 mtrs. Road and water body land without any development permission, therefore, the notice dtd. 01.08.2023 u/s 260 (1) of the BPMC act,1949 had been issued to show cause why the construction should not be demolished as it is constructed without development permission and de-hors the prevailing GDCR .
8.5 It was further submitted that in response to notice dated 01.08.2023, none of the petitioners have submitted any document like development permission/ sanctioned plan granted by the competent authority for constructions in question therefore, present respondent has passed the order u/s 260(2) of the BPMC Act to remove illegal Page 19 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined Construction within Seven days. The petitioners herein have claimed that the petitioners herein are owners of the land in question, however, the same is not true, be that as it may, the present petition is filed to challenge the notices issued u/s 260 of The BPMC Act,1949, which has concern with illegal construction .
8.6 It was submitted that as back as in the year 2017, the Dy. Collector has held that Yusufbhai Ghoghari has made encroachment upon the government land, said order has been confirmed by the collector ,Bhavnagar vide order dtd.10.01.2018 (page-68). Petitioner or petitioners have not challenged said order before the competent authority.
8.7 It was submitted that the petitioners failed to prove that the construction made with permission of competent authority therefore, in present petition the issue regarding ownership has been raised by the petitioners.
8.8 It was submitted that even before this Hon'ble court along with present petition, petitioners have not produced any documents i.e. development permission, sanctioned plan, of construction in question.
8.9 It was submitted that the provisions of the GRUDA- 22 would not be applicable to illegal constructions, since Page 20 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined the construction of the petitioners are without permission i.e illegal construction, therefore, the provisions of the GRUDA-2022 would not be applicable to facts of present petitioners.
8.10 It was submitted that the respondent needs to open the land by removing illegal construction so it can be used for road widening / public purpose. It was further submitted that due to construction of bridge at near distance BMC desires to give diversion towards 36 mtrs DP road by widening it . The public interest is paramount interest the petitioners have no right to make encroachment on DP Road therefore; the present petition deserves to be dismissed.
8.11 It is submitted that some of the occupiers/owners of illegal construction situated upon land in question have filed SCA/483/2024 before this Hon'ble Court, wherein present respondent i.e BMC, has filed it's reply that may be treated part and parcel of present reply.
8.12 Reliance was placed on the ratio as laid down in the following cases:
1. That in view of observations made by the Hon'ble supreme court of India in the case of..
[1]Friends Colony Development Committee Reported Page 21 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined in 2004 (8) SCC 733, [2] Priyanka Estates Reported in 2010 (2) SCC 27 , [3] Royal Paradise Hotel Reported in 2006 (7) SCC 597 and [4] Saket Housing Ltd. Reported in 2013 GLHEL_SC 54812 (Civil Appeal No. 5470 of 2004 order dt. 07.05.2013) Placing reliance on the aforesaid, Mr. Pandya, the learned advocate submitted that the present petitions deserve to be dismissed with exemplary Cost.
9. Heard Mr.G.H. Virk, the learned advocate appearing for the respondent No.3 in SCA No. 483 of 2024.
9.1 Reliance was placed by Mr. Virk on the affidavit-in- reply filed by the respondent No.3. At the outset, it was submitted that it is the case of the petitioners that the petitioners were allotted the land bearing survey No.252/1 paiki situated at mouje Vadva, Bhavnagar admeasuring 14567 sq. vaar on certain terms and conditions for the purpose of Dhobi Ghat, by the erstwhile ruler of Bhavnagar State by allotment order dated 13.9.1967 (Annex-R1). Placing reliance on the said Page 22 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined order dated 13.9.1967, it was submitted that the said allotment clearly stipulates that the allotted land cannot be used for residential purpose or cannot be claimed as individual property. The said land are not to be utilized for any other purpose. An entry in the revenue record was made by revenue entry No. 903 dated 8.12.1967.
9.2 It was submitted that as per allotment order dated 13.9.1967 passed by the Collector, initially, the names of Hindu Dhobis were mutated from Serial No. 1 to 67 and by Serial No. 1 to 71, names of Muslim dhobis individually, however, it came to the notice of the authority that such entry notifying individual names could not have been passed and, therefore, the Collector Bhavnagar took the said entry in Suo-motu Revision as per Section 108(6) of the Gujarat Land Revenue Code and by order dated 18.6.2004, the said entry was cancelled, being entry No 2489. Accordingly, an entry was mutated by entry No. 3471 and certified on 7.10.2004.
9.3 Placing reliance on the aforesaid, Mr. Virk, the learned advocate appearing for respondent No.3 referred to Para-6 of the affidavit-in-reply which states that from the record it is clear that the petitioners have violated the condition of allotment and made Pucca Houses.
9.4 It was submitted that by way of Notification dated Page 23 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined 17.12.2013, the second Revised Development Plan, 2031 for Bhavnagar was published by the Government of Gujarat under the provisions of Gujarat Town Planning and Urban Development Act, 1976. It was submitted that as per the Development Plan, road in question from Bor Talav, Balvatika to Jewel Circle is required to be widened upto 36 meters. Looking to the present needs of the City, so as to give some immediate relief to the traffic-choking on this route, the road is proposed to be widened upto 18 meters and in view thereof, in December, 2023, Bhavnagar Municipal Corporation issued Notices under Section 260(1) of the Gujarat Provincial Municipal Corporations Act, 1949 to 71 individuals who have erected illegal/ unauthorized construction on or abutting the road, without any authorization or permission. The present petitioners were also issued Notices under Section 260(1) of the GPMC Act.
9.5 Out of the 23 petitioners, 6 petitioners i.e. petitioner Nos. 12, 14, 15, 18, 19 and 21 did not file any reply nor did they provide any documentation to justify any alleged ownership or right, title or interest over the parcels of Government Land in question. The remaining petitioners submitted Village Form No.6 along with payments made to the agencies providing civil amenities etc., to justify their unauthorized construction.
Page 24 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined 9.6 It was submitted that none of the 23 petitioners have carried out authorized or legally sanctioned construction on the allotted land. The said structures are incapable of being regularized under the applicable laws since they are unauthorized structures on lands owned by the Government.
9.7 It was submitted that the lands in question were mutated and identified in the Revenue Record as "Government Wasteland" by way of entry No. 3608 dated 8.7.2008 i.e. more than 15 years ago. The said decision has not been challenged by any purportedly aggrieved person and the same has attained finality. Reliance was placed on Para No. 3.5 of the petition wherein the petitioners have admitted the aforesaid fact. Placing reliance on the aforesaid submissions, the present petition be dismissed.
10. Heard Mr. Rohan Raval, the learned AGP appearing for the respondent State in both the petitions.
10.1 Mr. Rohan Raval, the learned AGP reiterated the submissions advanced by Mr. G.H. Virk and Mr. Kaushal Pandya, the learned advocates appearing for respondent No.3 in the respective petitions, however, Mr. Raval placed reliance on Para-7, 8, 9 and 10 of the affidavit-in- reply filed by the respondent authority and submitted that Page 25 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined the land in question, allotted for specific purpose of Dhobi Ghat, was not utilized for the said purpose and the same was utilized for residential purpose without seeking any prior permission and without any authority. The proceedings, therefore, came to be initiated for breach of conditions of allotment and by order dated 9.4.2008 passed by the Collector, Bhavnagar, after providing due opportunity of hearing, the allotment of the said land was quashed and directions were issued for removing such unauthorized occupants on account of breach of terms and conditions and to mutate the same in the name of State Government as per provisions under Section 68 and Section 79A of the Bombay Land Revenue Code. Subsequent entry being revenue entry No. 3608 giving effect to the order passed by the Collector, Bhavnagar came to be posted.
10.2 It was submitted that being aggrieved by the order of the Collector dated 9.4.2008, the petitioners approached the Special Secretary Revenue Department challenging the said order by preferring Revision Application No. HKP-BVN-15-2008. Initially, status-quo was granted by the leaned Special Secretary, however, the revision application came to be dismissed by order dated 31.8.2012. It was submitted that said order attained finality. It was submitted that the revenue record reveal that the petitioners are not in authorized or lawful Page 26 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined possession of the land in question as the land, which is a government land, was only allotted for specific purpose of "Dhobi Ghat" on terms and conditions, which the allotees out-rightly violated and utilized the same for residential purpose without there being any authority or permission. In light of the aforesaid, it was submitted that the petition may not be entertained.
11. Mr Nanavaty, the learned advocate appearing for the petitioners, on rejoinder, reiterated the contentions stated by him and submitted that the petitioners herein were allotted by the erstwhile ruler of the Bhavnagar State as back as in the year 1967. The petitioners herein are legal heirs and representative of the original occupiers or owners of the land in question and reiterated that the revenue record entry, which was reversed by the respondent authority in 2004, is a nullity and that it was not open for the Collector to reverse the entry without granting opportunity of hearing to the petitioners.
ANALYSIS:
12. Having heard the learned advocates appearing for the respective parties, the petitioner herein are occupiers of the land allotted by the erstwhile Rulers of Bhavnagar State by allotment order duly produced at Page-173 dated 13.9.1967 for the purpose of using the said land as Page 27 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined "Dhobi Ghat". One of the conditions stipulated by the Collector in the said Order was that the allotment was only for the purpose of "Dhobi Ghat", however, the said land could not be used for residential purpose or cannot be claimed as individual property. The same are not to be utilized for any other purpose. Subsequently, mutation entry came to be posted in the Village Form 7/12, showing the land as "Dhobi Ghat". The aforesaid is undisputed and the credentials of each of the petitioners, which are produced on record, in para-6 of the affidavit- in-reply filed by the respondent No.3. Mutation entry posted in the village Form 7/12 record, is that of "Dhobi Ghat".
13. Out of Survey No. 252/1 paiki, land admeasuring 1.37.00 Gunthas was allotted to Muslim dhobis and land admeasuring 1.28.00 Gunthas to the Hindu dhobis under Section 38 of the Land Revenue Code. The entry of allotment to the petitioners as well as others was mutated by entry No. 1312 on 23.5.1972. As per allotment order dated 13.9.1967 passed by the Collector, initially names of Hindu dhobis were mutated from Serial Nos. 1 to 67and Serial Nos. 1 to 71 names of Muslim dhobis individually, however, it came to the notice of the authority that such entry notifying individual names could not have been passed and, therefore, the Collector Bhavnagar took the said entry in Suo-motu Revision as Page 28 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined per Section 108(6) of the Gujarat Land Revenue Code and by order dated 18.6.2004, the said entry was cancelled. Accordingly, entry was mutated vide entry No. 3471 dated 7.10.2004.
14. In view thereof, proceedings were initiated for breach of conditions of allotment and by order dated 9.4.2008, the Collector, Bhavnagar, after providing due opportunity of hearing , the allotment of the said land was quashed and directions came to be issued for removing such unauthorized occupants on account of breach of terms and conditions and to mutate the same in the name of State Government as per provisions under Section 68 and Section 79A of the Bombay Land Revenue Code. The said order dated 9.4.2008 is duly produced at Annexure RVII. Being aggrieved by the said order passed by the Collector, Bhavnagar dated 9.4.2008, the petitioners approached the Special Secretary Revenue Department challenging the said order by preferring Revision Application No. HKP-BVN-15-2008, which came to be dismissed by order dated 31.8.2012. The said order passed by Special Secretary Revenue Department, is duly produced at Annexue IX. The said order has attained finality.
15. The petitioners are aware of the proceedings initiated before the learned Collector challenging the said Page 29 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined order and the order passed by the Special Secretary Revenue Department, however, the petitioners have chosen not to challenge the said order.
15.1 Reliance placed by the learned advocate appearing for the petitioners on the ratio laid as down by the Hon'ble Apex Court in case of State of Gujarat v. Patel Raghav Natha, reported in 1969 (2) SCC 187 is of no avail to the facts of the present case, the petitioners having accepted the order dated 31.8.2012, as referred above. In light of aforesaid, impugned notices came to be issued.
16. The respondent authority by Notification dated 17.12.2013, published the second Revised Development Plan, 2031 for Bhavnagar by the Government of Gujarat under the provisions of Gujarat Town Planning and Urban Development Act, 1976. The said Notification is produced at Annexure-R1 at page 107.
17. The impugned notices under Section 260(1) and Section 260(2) came to be issued on 2.1.2024 by respondent No.6 under the GPMC Act, 1969 to the petitioners herein for the purpose of widening of main entry into Bhavanagar City from the direction of Rajkot City. The aforesaid is as a part of the Development Plan. The road in question from Bor Talav, Balvatika to Jewel Circle is required to be widened upto 36 meters. The Page 30 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined respondents have undertaken the widening of road upto 18 meters, in view of the immediate relief to the traffic- choking to this route. The aforesaid notices are issued to 71 individuals who have erected illegal/ unauthorized construction on or abutting the road, without any authorization or permission. 23 out of the said 71 individuals have approached this Court. The lands in question were mutated and identified in the Revenue Record as "Government Wasteland" by way of entry No. 3608 dated 8.7.2008 i.e. more than 15 years ago and the said decision has not been challenged by any purportedly aggrieved person and the same has attained finality.
18. The documents produced at Annexure "J" to the petition are perused by this Court, which appear to be Electricity Bill, house-tax bill, APL I- Card, which do not confer occupancy rights. No other documents are produced on record to substantiate the legal rights of the petitioners with respect to the occupancy in the land in question.
19. The contention of Mr. Nanavaty, the learned advocate for the petitioners that the Collector, Bhavnagar recommended regularisation of the lands in question. The said recommendation dated 9.2.2015, which is produced at page-82 is of the year 2015, after which much water has been flown, the petitioners are held to be in Page 31 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined unauthorized possessions after which the petitioner were issued notices under Sections 260(1) and 260(2) of the GPMC Act by the respondent No.6 and having followed due process of law.
20. The petitioners accept/ admit in Para-3.5 of the petition that the lands in question are mutated and identified in the Revenue Record as "Government Wasteland" by way of Entry No. 3608 on 8.7.2008 i.e. more than 15 years ago. The said decision having not challenged, has attained finality.
21. In light of the aforesaid, it is apposite to refer to the position of law:
(i) Saket Housing Limited v. Patna Regional Development, reported in 2013 GLHEL_SC 54812 (Paras-2, 3, 6, 7, 11, 12, 13, 15);
"2. Appellant's challenge to the same in writ petition and thereafter in Letters Patent Appeal have failed.
3. Aggrieved by the same, appellant is before us with the leave of the Court.
6. Appellant has subverted the rule of law with impunity and cannot be allowed to do so any further.
7. In view of the above, we are not inclined to accede to this prayer as, in our opinion, it would be destructive of rule of law.
11. There is yet another reason to decline the prayer for Page 32 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined withdrawal of the appeal. Appellant has obtained an interim order as back as on 6.1.2004 restraining demolition from this Court which continues even today. It shall be travesty of justice to give the appellant further chance to subvert the law.
12. In the facts and circumstances of the case, we direct the respondents and their successors to demolish the unauthorised construction forthwith. The amount deposited by the appellant along as with interest accrued thereon be transmitted in the account of Patna Municipal Corporation forthwith. The cost of demolition shall be borne from this account. In case further amount is needed, same shall be recovered from the appellant. If any amount is left, the Patna Municipal Corporation shall transfer the same to the Chief Minister's Relief Fund. In case, appellant volunteers to remove and demolish the unauthorised construction, the respondent may allow it to do so. But it shall be the responsibility of the respondent and Patna Municipal Corporation to see that the orders have been carried out by the appellant in true letter and spirit. In that case the entire sum of Rs.75 lakhs with accrued interest shall be transferred to the Chief Minister's Relief Fund.
13. We direct the Chief Secretary and the Director General of the Police of the State of Bihar to ensure compliance of this Order within two months from the date of the receipt of the copy of this a order and send the compliance report.
15. Accordingly, we dismiss the appeal with the directions aforesaid.
(ii) Priyanka Estates International Private Limited and Others v. State of Assam and others, reported in Page 33 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined (2010)2 SCC27 (Para-56):
"56. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to h all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed has been given to it by the builders. Rules, regulations and bye-laws are made by Corporations or by a Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent."
22. At this stage it is also apposite to refer to the Gujarat Ordinance No. 3 of 2022 to regularize the unauthorized development in the Municipal Corporation areas, Nagarpalika areas and development areas in the State and for matter connected therewith or incidental thereto.
22.1 It is apposite to refer to Section 2(j), Section 5(1) and 8(a) of the Gujarat Ordinance No. 3 of 2022, which read thus:
"2(j):"Unauthorized Development" means the Page 34 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined development where, irrespective of ownership, no permission to use a building or a part thereof is obtained from the authority competent to give such permission, or having obtained the permission, the development is in contravention of the relevant law or of such permission.
"5. Application for unauthorised development.-
(1) At any time on or before the 30th September, 2022, a notice issued to an owner or occupier or any order issued or decision taken under the relevant law, except under the provisions of the Real Estate (Regulation and Development) Act, 2016, requiring such owner or occupier to remove or pull down or alter unauthorised development carried out shall be deemed to have stood suspended unless and until such notice, order or decision stands revived under sub-section (2) of section 6:
Provided that such provision shall not be applicable in case of development carried on land in respect of matters provided in sub- sections (1), (2) and (3) of section 8.
"8(a) Circumstances in which unauthorised development shall not be regularised.- (1) Notwithstanding anything contained in this Page 35 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined Ordinance, an unauthorised development shall not be regularised in a case where unauthorised development is carried out on any of the following lands, namely:-
"(a) land belonging to Government, local authority or statutory body."
22.2 It is apposite to refer to Gujarat Regularization of Unauthorised Development Rules, 2022 wherein Declaration reads thus:
"6. Declaration: I hereby certify and declare that:
(a) The land on which my property exists is not covered under sub-section (1) of section does not attach any dues to the Government or local bodies.
(b) For violation in the provision of sanitary facility, I abide to make the necessary provisions as directed by authority in this regard.
(c) I have submitted the plans for the portion for which I wish to get the unauthorized development regularised.
(d) For that portions for which I have not submitted to regularise, I shall pull down such portions on my own.
(e) I, the under signed ...............registered/authorized architect/Engineer, hereby certify that while preparing the plan for the said unauthorised development, I/we have inspected the site plans and accordingly the plans are prepared.
(f) The information provided by me/us in the application and documents submitted along with are true to the best of my/our knowledge. Also I am aware that, if found Page 36 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined incorrect it shall lead to criminal proceedings and accordingly action shall be taken.
Date: Date:
Registration No.
Name and Signature of the Name and Signature of
architect/ Engineer Address/ the applicant/owner/
Phone number. occupier/ Address/
Phone number."
23. In light of the aforesaid, the action undertaken by the respondent authority requires no interference, considering Section 2(j) wherein the "unauthorized development" means the development where, irrespective of ownership, no permission to use a building or a part thereof is obtained from the authority competent to give such permission, or having obtained the permission, the development is in contravention of the relevant law or of such permission. The application for regularisation of unauthorized development cannot be considered in case of development carried out on land in respect of matters provided in sub-sections (1), (2) and (3) of Section 8.
Section 8(1)(a) provides the exception wherein the land belongs to State, local authority or statutory body for a specific purpose.
24. Considering the fact that the petitioners herein of Page 37 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined the SCA No.483 of 2023 are identically placed to the petitioners in SCA No. 16767 of 2023 wherein by order dated 22.9.2023, no coercive steps are directed to be taken against the petitioners. The said order was passed to facilitate the petitioners to produce documents seeking regularization of the unauthorized constructions that is incapable of being regularized as per the Gujarat Regularization of Unauthorized Development Act, 2023 and that any other documents in the possession of the petitioners indicating their possession and / or documents suggesting the occupation of the petitioners.
25. In light of the aforesaid and the facts of the present case:
(a) The land was allotted as "Dhobi Ghat" pas per mutation entry No. 1312 on 15.1.1972. The same is violated by the petitioner by erecting pucca houses.
There are no entries in the names of the petitioners. The petitioners have also never applied for any permission to erect such houses, no documents are produced on record to show that the petitioners applied seeking permission to erect such houses. Consequently, upon knowledge of the petitioners, notices came to be issued to the petitioner, on following due process of law. The noticees were also called upon by the respondent authorities, however, out of 23 petitioners, 6 petitioners i.e. petitioner Page 38 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined Nos. 12, 14, 15, 18, 19 and 21 chose not to file any reply nor did they provide any documentation to justify ownership, right, title or interest over the parcels of Government Land in question. The remaining petitioners submitted Village Form No. 6 along with payment to the agency providing civil amenities, etc. to justify their unauthorised construction. In light of the aforesaid, none of the 23 petitioners have carried out authorisedly or legally sanctioned construction and all the petitioners are defending construction, which is illegal and carried on government land. In view thereof, Respondent authority proceeded to issue notices under Section 260(2) of the GPMC Act. The aforesaid action undertaken by the respondent authority requires no interference. In light of the aforesaid, no individual right of the petitioners exist in the land in question.
(b) The land being government waste land by entry No. 3608 dated 8.7.2008, the construction is incapable of being regularised, as submitted by the competent authority and having considered the provisions of the Gujarat Ordinance No. 3 of 2022, as also the Gujarat Regularisation of Unauthorised Development Ordinance, 2022, as referred above.
(c) In light of the ratio laid down by the Hon'ble Page 39 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024 NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined Apex Court, as referred above, and having considered the Rules and Regulations and Bye-laws duly followed by the respondent authorities and considering the requirements by the respondent authorities wherein the respondent authorities by Notification dated 17.12.2013, published the second Revised Development Plan, 2031 for City of Bhavnagar by the Government of Gujarat under the provisions of Gujarat Town Planning and Urban Development Act, 1976. The notices in question came to be issued as a part of the said Development Plan road in question from Bor Talav, Balvatika to Jewel Circle, which is required to be widened upto 36 meters, considering the immediate relief to the traffic-choking on this route, the respondents have undertaken to widen the road upto 18 meters. The aforesaid action is for benefit of the public at large and in view thereof, in absence of any legal right, no interference is called for, in the impugned notices.
26. For the foregoing reasons, no interference is called for with respect to the impugned notice dated 2.1.2024 issued by the respondent authority under Section 260(2) of the GPMC Act to the petitioners in SCA No. 483 of 2024 and the notice dated 08.09.2023 issued by the respondent no.6 -Town Development Officer, Bhavnagar Municipal Corporation (BMC) in SCA No. 16767 of 2023.
Page 40 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024NEUTRAL CITATION C/SCA/16767/2023 JUDGMENT DATED: 09/02/2024 undefined 26.1 In the interest of justice, it is open for the petitioners to approach the competent authority, for alternative accommodation and if any such Scheme is available to the petitioners, the same be considered by the respondent authority.
This Court is not inclined to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India. Accordingly the petition fails and the same is dismissed.
27. Mr. Nanavaty, the learned advocate requests that the present order be stayed for a period of 10 days to take appropriate action.
27.1 Considering the aforesaid request, by order dated 22.9.2023 whereby no coercive steps are directed to be taken against the petitioners, to be continued for a period of two weeks qua both the petitions i.e. SCA No. 16767 of 2023 and SCA No. 483 of 2024, from the date when the order is uploaded.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 41 of 41 Downloaded on : Fri Mar 08 20:42:21 IST 2024