Gujarat High Court
Dilipbhai Amirali Bhanvadiya & 2 vs State Of Gujarat Thro Commissioner Of ... on 11 March, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/949/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 949 of 2013
In SPECIAL CIVIL APPLICATION NO. 1060 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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DILIPBHAI AMIRALI BHANVADIYA & 2....Appellant(s)
Versus
STATE OF GUJARAT THRO COMMISSIONER OF WOMEN AND CHILD
DEVE. & 18....Respondent(s)
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Appearance:
MR RC KAKKAD, ADVOCATE for the Appellant(s) No. 1 - 3
DELETED for the Respondent(s) No. 13 - 19
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 9 - 10
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 6
MS KHYATI P HATHI, ADVOCATE for the Respondent(s) No. 3 - 5
RULE SERVED for the Respondent(s) No. 1 - 2 , 7 - 8
Page 1 of 8
C/LPA/949/2013 JUDGMENT
RULE SERVED BY DS for the Respondent(s) No. 11 - 12
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 11/03/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The present appeal is preferred challenging the judgement and order dated 01.07.2013 passed by the learned Single Judge in Special Civil Application No. 1060 of 2012 whereby the learned Single Judge has dismissed the writ petition preferred by the present appellants - original petitioners with costs.
2. The appellants had sought for the following reliefs from this Court by way of the writ petition:
10(A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, holding and declaring that construction work started by the respondents is arbitrary, illegal, harsh, unreasonable, unjustified and the same is also violative of articles 14 and 19 of the Constitution of India and thereby restore the position of the Common Plot i.e. ante- existing prior to the construction work started by the respondents.
(B) Pending admission, hearing and final disposal of this Special Civil Application, your lordships will be pleased to restrain the respondents their officers, servants and agents from carry out further construction on a Common Plot No.B of Rajnagar on land bearing Revenue Survey No.454-A-1 paikee Page 2 of 8 C/LPA/949/2013 JUDGMENT and/or status quo qua the Common Plot No.B of Rajnagar on land bearing Revenue Survey No.454-A-1 paikee be granted.
(C) Grant an ex-parte ad-interim relief in terms of para (B) above be granted.
3. Mr. R.C. Kakkad, learned advocate appearing for the appellants submitted that the learned Single Judge ought to have appreciated the fact that the Anganwadi has been constructed on a common plot of Rajnagar Society and if at all the Government wanted to construct a school on a private property, proper procedure ought to have been followed under the Act. He has drawn the attention of this Court to the condition no. 1 which was incorporated by the Government while granting N.A. Permission and while sanctioning the layout plan which reads as under:
"1. The land of the Common Plot/common land and the roads shall be considered to be pertaining to co-ownership of all the plot holders of the society. The original owner shall have no right whatsoever."
3.1 Mr. Kakkad further submitted that some of the plots are still not disposed of. He submitted that the action of the Government in starting construction on the land in question without paying any compensation is illegal and the said action requires to be quashed and set aside. In support of his submissions, Mr. Kakkad has relied upon the decision of this Court in the case of Harikrushnadas Chhaganlal Nanalal and Ishwardas Mohanlal (Seva Samaj Trust) vs. Vinodchandra G. Vaghela reported in 2010(1) GLH 710 wherein it is held that if the common plot is earmarked for common use and common facility of a residential society, the Page 3 of 8 C/LPA/949/2013 JUDGMENT majority of the members of the society cannot take away the right to use the common plot of other members who may be in minority.
4. Mr. Rakesh Patel, learned AGP appearing for the respondent - State has supported the impugned order passed by the learned Single Judge and submitted that the same having been passed in accordance with law does not call for any interference by this Court. He has drawn the attention of this Court to paras 6 & 7 of the affidavit in reply filed by the respondent which has also been reproduced by the learned Single Judge in para 5 of the impugned order. The same reads as under:
"6. I further say that as far as petitioner Nos. 1 and 2 are concerned, they are original owners of Revenue Survey No.454 paiki 1 whereas petitioners Nos. 3 to 10 are the eights plot holders. I further say that the original plot holder i.e. petitioner Nos. 1 and 2 had by letter dated 23.6.2003 handed over common plot as well as the internal road to the President/Chief Officer, Bhanvad Municipality which have been duly taken over by them and, therefore, the common plot as well as internal roads would rest with the Bhanvad Municipality. I further say that in the present case there are in all 37 plot holders of Rajnagar Society out of which 8 plot holders have approached this Honble Court raising their objections against construction of Anganwadi whereas the remaining 29 plot holders have raised no such objection. It is pertinent to note that many residents of Rajnagar Society has also given their consent/no objection for constructing Anganwadi upon the said common plot. It is stated by those residents that the common plot has remained unutilized since last 17 years and due to non-utilization and accumulation of rain water, there is lot of mosquito menace and by construction Anganwadi the area would remain clean. It say that upon perusing the affidavits annexed along with letter Page 4 of 8 C/LPA/949/2013 JUDGMENT dated 7.2.2012, it transpires that out of 8 plot holders i.e. petitioner Nos. 3 to 10, 6 plot holders have already given their consent for constructing the Anganwadi and, therefore, it is now not open for the respective petitioners to take a different stand.
7. Referring to the contents of paragraph Nos. 4.4 to 4.6 of the petition, I deny the averments made therein. I say that construction is not being carried out by Bhanvad Nagarpalika. I say that the construction has been started under the Education Department of the State. I further say that even otherwise the said construction is for public good and not for any private purpose and the petitioners are wrongly relied upon the Government Resolutions annexed with the present petition. I say that after having failed in getting injunction from the civil court, the present petition is filed. I say that the construction in question is almost complete and, therefore, on this ground also, no injunction may be given to the petitioners. I say that the common plot, even otherwise is being used for children development activities of Anganwadi and the same cannot be said to be offending any Government Resolutions, Rules or Regulations. I say that in fact the residents of Rajnagar Housing Society had themselves given an application dated 21.2.2011 to the Nagarpalika for construction of Anganwadi so that the plot in question could be put for good public use. I say that the Nagarpalika on 3.5.2011 had written a letter to the society stating that as per their application the Anganwadi can be made. I say that in fact a resolution was passed on 23.3.2003 to the effect that control of the said plot in question as well as roads in the society would taken by Bhanvad Nagarpalika for development purpose. I say that the said resolution has also not been challenged by the petitioners and without challenging the same the petitioners cannot file the present petition. I further say that reference to letter dated 13.1.2011 of the Nagarpalika is misleading since the Nagarpalika on 3.5.2011 had written letter to the residents of the society based on their representation that Anganwadi can be made in their plot."Page 5 of 8
C/LPA/949/2013 JUDGMENT
5. Ms. Khyati Hathi and Mr. Majumudar, learned advocates have adopted the arguments advanced by learned AGP Mr. Patel and thereby supported the impugned order passed by the learned Single Judge.
6. Having heard learned advocate for the appellant and having perused the documents on record, more particularly, the impugned order passed by the learned Single Judge, we are of the opinion that the learned Single Judge was justified in dismissing the writ petition. The learned Single Judge while considering the case of the appellant has in paras 6 & 7 recorded reasons as under:
"6. Therefore, in the above circumstances, it is clear that when the petitioners invoked extraordinary jurisdiction of this Court a prompt remedy of Civil in nature was already undertaken in the form of filing a Regular Civil Suit No.6 of 2012 and one of the respondents was defendant in the Regular Civil Suit. That contention of learned advocate for the petitioners about existence of illegal and unauthorised construction over the common plot by some of the respondents to construct Anganwadi for welfare of the children under the Integrated Child Development Services and legal right of the petitioners to seek remedy approached the writ Court pale into insignificance inasmuch as the petitioners had already invoked lawful and proper remedy where all the factual aspects about existence of common plot of the society, alleged construction whether illegal or unauthorised or irregular could have been examined on production of necessary material and filing of pursis by the Municipality in the Civil Suit was only a declaration about usage of land for welfare activities of the children upon handing over land by the society to Municipality and out of 29 Page 6 of 8 C/LPA/949/2013 JUDGMENT members only 8 members have grievance. In the affidavit-in-reply filed by the District Collector, Project Manager in-charge of the Integrated Child Development Services programme have denied averments and allegations levelled in petition and that Nagarpalika has passed resolutions granting permission for construction for a noble and welfare purpose of Anganwadi.
7. The decision of the Harikrushnadas Chhaganlal Nanalal and Ishwardas Mohanlal (Seva Samaj Trust) (supra) relied on by learned advocate for the petitioner is not applicable in the facts and circumstances of the petition which was substantially about defiance of the order of the competent authority by litigant and prayer was made accordingly.
8. In the above circumstances, this Court will not enter into the disputed facts including existence of common plot, nature of objection by all members of the society, whether the nature of construction namely, illegal, irregular or unauthorised without keeping it open the petitioners to pursue the remedy of Civil Suit."
7. We do not find any infirmity in the findings of the learned Single Judge. From the records, it is borne out that the society is not a registered one. The appellants have come before this Court in their individual capacity. The writ petition and the appeal is not filed by the society. There is no actual formation of a society and it is only mentioned in the map which has been produced before this Court. These are individual plots and it appears that majority of the plot holders have consented to the plot being used for public purpose. From the reply it is clear that majority of the plot holders want that the plot which has remained unutilized for the last around 20 years be used for some good purpose so as to avoid accumulation of rain water and mosquito menace.
Page 7 of 8C/LPA/949/2013 JUDGMENT 7.1 So far as the decision of this Court in the case of
Harikrushnadas Chhaganlal Nanala and Ishwardas (supra) is concerned, the same related to a society which was duly registered under the Gujarat Cooperative Societies Act, 1961. However in the present case, the no such registered society exists and only individual plots have been earmarked and sold. We are in complete agreement with the reasonings adopted and findings arrived at by the learned Single Judge and therefore this court is not inclined to interfere in the impugned order.
8. Accordingly, appeal is dismissed being devoid of any merits. No costs.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 8 of 8