Gujarat High Court
Dilipbhai Amirali Bhanvadiya Thro vs State Of Gujarat Thro Commissioner on 1 July, 2013
Author: Anant S.Dave
Bench: Anant S. Dave
DILIPBHAI AMIRALI BHANVADIYA THRO POA ANWARBHAI K BHANVADIYAV/SSTATE OF GUJARAT THRO COMMISSIONER OF WOMEN AND CHILD DEVE. C/SCA/1060/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1060 of 2012 =============================================== DILIPBHAI AMIRALI BHANVADIYA THRO POA ANWARBHAI K BHANVADIYA & 9....Petitioner(s) Versus STATE OF GUJARAT THRO COMMISSIONER OF WOMEN AND CHILD DEVE. & 11....Respondent(s) =============================================== Appearance: MR RC KAKKAD, ADVOCATE for the Petitioner(s) No. 1 - 10 NOTICE NOT RECD BACK for the Petitioner(s) No. 3 - 5 , 7 - 10 MR ROHAN YAGNIK AGP 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 NOTICE SERVED BY DS for the Respondent(s) No. 2 RULE SERVED BY DS for the Respondent(s) No. 7 - 8 , 11 - 12 =============================================== CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/07/2013 ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed by the petitioners with following prayers:
10(A) This Hon ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, 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 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.
2. In sub-para 9 of para 5 of the petition, it is stated that petitioners have no other alternative efficacious remedy except filing the present petition before this Court and in para 7 reads as under:
7. The petitioners respectfully submit that petitioner No.1-Dilipbhai Amirali Bhanvadiya preferred a Regular Civil Suit No.6 of 2012 pending before the Civil Judge, Junior Division, Bhanvad against the Bhanvad Municipal Bureau for the same subject matter but after the pursis which is at annexure- E the petitioner No.1 and other petitioners thought fit to file present petition before this Hon ble Court for prompt remedy, under the circumstances petitioner No.1 Dilipbhai Amirali Bhanvadiya undertake to withdraw Regular Civil Suit No.6 of 2012 pending before the Civil Judge, Junior Division, Bhanvad within 10 days. (emphasis supplied) Mr. Kakkad, learned advocate for the petitioners contend that Civil Suit was withdrawn in view of pursis dated 21.1.2012 at Annexure E filed by respondent-Municipality about handing over possession of the plot by the society to Municipality for the usage of Baalvadi. It is also contended that in a common plot of society no construction could have been carried out and, therefore, no construction permission is granted for the usage of Baalvadi and/or Anganwadi by the competent authority and, therefore, direction be issued as prayed for.
Reliance is also placed on decision of this Court in the case of Harikrushnadas Chhaganlal Nanalal and Ishwardas Mohanlal (Seva Samaj Trust) vs. Vinodchandra G. Vaghela & Anr.[2010 (1) GLH 710] arising out of provisions of Sections 28 and 73 of Gujarat Cooperative Societies Act, 1961.
Learned advocates appearing for the respondent Nos. 3, 4 and 5 have raised preliminary contention about maintainability of this petition and acceptance of prayer by raising following submissions:
The present petition filed under Article 226 on the ground of alleged breach of Articles 14 and 19 of the Constitution is wholly misconceived.
The petition is grossly defective as there is mis-joinder and non-joinder of necessary parties and otherwise raises disputed questions of facts The petitioners have not stated true and complete facts and have rushed to this Hon ble Court after having filed a civil litigation in respect of the same cause of action and relief.
5. In addition to above learned advocate for respondent No.6 Chief Officer has also categorically denied allegation and relied on paragraphs 6 and 7 of the reply which 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 Hon ble 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 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.
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 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.
9. In absence of merit, this petition is rejected. Notice discharged.
10. Cost of Rs.25,000/- to be paid by the petitioners for invoking extraordinary jurisdiction inspite of filing the Civil Suit which was pending when the notice was issued by this Court.
(ANANT S.DAVE, J.) SMITA Page 6 of 6