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[Cites 8, Cited by 0]

Gujarat High Court

Hiteshkumar Natwarlal Thakkar vs State Of Gujarat on 17 September, 2019

Author: Vipul M. Pancholi

Bench: Vipul M. Pancholi

        C/SCA/14308/2019                                       IA ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
                           2019
     In R/SPECIAL CIVIL APPLICATION NO. 14308 of 2019
==========================================================

PATAN NAGARPALIKA Versus HITESHKUMAR NATWARLAL THAKKAR ========================================================== Appearance:

MR S N SHELAT, SENIOR ADVOCATE WITH MR SHIVANG M SHAH for the PETITIONER(s) No. MS MANISHA L. SHAH, GOVERNMENT PLEADER for the RESPONDENT(s) No. MR ANSHIN DESAI, SENIOR ADVOCATE WITH MR SP MAJMUDAR for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 17/09/2019 IA ORDER
1. This application under Article 226(3) of the Constitution of India is filed for vacating ad­ interim relief granted by this Court vide order dated 23.08.2019 passed in Special Civil Application No.14308 of 2019 by applicant Patan Nagarpalika - original respondent No.2 in the petition.
2. Brief facts leading to filing of the present application are as under:
2.1. The opponent No.1 - original petitioner has filed Special Civil Application No.14308 of 2019 in which the petitioner has prayed that the Page 1 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER respondent authorities be directed to forthwith comply with the report dated 19.06.2019 of the Chief Town Planner, report dated 28.06.2019 of the District Town Planner, letter dated 22.08.2019 of the State Government and letters dated 03.06.2019 and 18.07.2019 of Deputy Engineer, Irrigation Department and thereby direct the respondent authorities and more particularly respondent Nos. 2 and 3 to remove the construction so far put up by them on the land in question as per the said reports/letters.

By way of interim relief, the petitioner has prayed that during the pendency and final disposal of the petition, respondents and more particularly respondent Nos. 2 and 3 be directed not to put up any further construction of the Gutter Pumping Station over the land in question.

2.2. The dispute pertains to the land situated at Revenue Survey No.343 Paiki, admeasuring 58 sq. meters out of total land admeasuring 4855 sq. meters situated at Hansapur, District Patan (disputed land). It is the case of the original petitioner that he is the owner of the land in question and the land in question is non­ agricultural land.

2.3. On 13.06.2013, the District Collector passed an order whereby land adjoining to the land in Page 2 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER question, admeasuring 100 sq. meters of Revenue Survey No.375/A/2 was allotted to Patan Nagarpalika for construction of Water Pumping Station. The petitioner, therefore, challenged the said order by filing Special Civil Application No.17782 of 2013 before this Court. Subsequently, petitioner came to know that the concerned respondent encroached upon the land of the petitioner and therefore said aspect was pointed out to this Court. When this Court passed an interim order on 28.03.2014, after making inquiry, collector passed an order on 03.06.2014, wherein it is observed that the construction is made on 58 sq. meters of land belonging to the petitioner i.e. Revenue Survey No.343.

2.4. On 05.08.2015, a Notification under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 'Act of 2013') for acquisition of the land in question came to be issued. The petitioner therefore challenged the said notification by filing Special Civil Application No.18038 of 2015, wherein, vide order dated 20.07.2017, the notification issued on 05.08.2015 came to be set aside.

2.5. Thereafter the respondent State with a view Page 3 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER to justify the encroachment made on the land of the petitioner issued another notification dated 22.04.2018 under Section 10A of the Act of 2013 exempting the project from the application of provisions of Chapter II and Chapter III of the Act of 2013. Petitioner therefore filed Special Civil Application No.14325 of 2018 before this Court. Petitioner raised the objection against the acquisition proceedings. However, the objection was not considered. Petitioner has pointed out in the memo of the petition about various petitions filed by him before this Court from time to time and the orders passed by this Court in the said petitions. Petitioner has also pointed out about the order passed by the Hon'ble Supreme Court.

2.6. In the petition, petitioner has alleged that the present applicant - original respondent No.2 has violated the provisions of General Development Control Regulations (GDCR for short) and therefore petitioner has pointed out about the said violation to the various authorities and therefore various authorities addressed communications to the concerned respondent authority whereby the concerned authority was asked to remove the construction made in violation of the provisions of the GDCR. It is stated that petitioner has, therefore, filed the Page 4 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER petition for implementation of the said reports/letters and for demolition of illegal construction made by the original respondent No.2

- applicant.

2.7. This Court, after hearing the learned counsel appearing for the original petitioner, vide order dated 23.08.2019, has issued notice making it returnable on 03.09.2019 and by way of ad­interim relief directed the present applicant - original respondent No.2 that it shall not carry out any further construction upon the land belonging to the petitioner. The original respondent No.2 - present applicant has, therefore, filed the present application.

3. Heard learned Senior Advocate Mr. S.N.Shelat assisted by learned advocate Mr. Shivang M. Shah for the applicant, learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. S.P.Majmudar for the respondent No.1 - original petitioner and learned Government Pleader Ms. Manisha L. Shah for the respondent State.

4. Learned Senior Advocate Mr. Shelat, at the outset, submitted that the State of Gujarat has launched a programme of Swarnim Siddhi for Underground Drainage Project which aims at improvement of of urban infrastructure in towns Page 5 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER and cities in a planned manner. The same is approved for Patan City by the Gujarat Urban Development Mission, Gandhinagar on 16.09.2010. By the aforesaid project, all the Underground Drainage would be interconnected. There are 5 pumping stations working in the territorial limit of Patan Municipality and considering the current population of the town, underground Drainage Sewerage System is being worked out. Necessary resolution was passed by the Municipality by which implementing agency is appointed for the aforesaid project. The estimated cost of the said project is 29 crores. Thereafter, applicant requested the Collector, Patan for allotment of land for the said project, which was processed and 100 sq. meters of land from survey No.375/A Paiki 2 of Mouje Hansapur came to be allotted to the applicant on 13.06.2013. Possession of the said land was handed over to the applicant on 02.07.2013. DILR has also carried out the measurement and the project was commenced. Construction work was carried out and now it has reached up to 80%. Thus, 80% construction is already over.

5. Learned Senior Counsel thereafter would submit that construction was also made on 58 sq. meter of land belonging to the petitioner i.e. the land in question and therefore the petitioner Page 6 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER filed a petition being Special Civil Application No.17782 of 2013 wherein the petitioner has also prayed that the respondents be directed to demolish the illegal construction put up by them in the land belonging to the petitioner. It is submitted that the Hon'ble Division Bench of this Court, vide common order dated 20.07.2017 passed in Special Civil Application No.17782 of 2013 with Special Civil Application No.18038 of 2015, dismissed the said petition and request of the petitioner for demolition of the construction put up on the land belonging to the petitioner was rejected.

6. At this stage, learned counsel would further submit that the petitioner filed another petition being Special Civil Application No.18038 of 2015 challenging the notification issued under Section 11 of the Act of 2013, whereby the respondent State started process of acquisition of the land in question of the petitioner. The Hon'ble Division Bench of this Court, by the aforesaid common order dated 20.07.2017, quashed and set aside the Notification issued under Section 11 of the Act of 2011. However, liberty was reserved to acquire the land in question under the Act of 2013 after following due procedure. Learned counsel referred the said order, copy of which is produced at page 75 of the compilation of the Page 7 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER civil application.

7. At this stage, it is further contended that the respondent State thereafter initiated the proceedings under the Act of 2013 for acquisition of the land in question and issued notification under Section 10A and 11 of the Act of 2013. By filing Special Civil Application No.14325 of 2018, the petitioner has challenged the notification issued under Section 10A and 11 of the Act of 2013. It is submitted that the civil application filed by the original petitioner in the said petition for grant of interim relief is not entertained by the Hon'ble Division Bench of this Court. The said civil application was dismissed vide order dated 25.03.2019. Learned counsel has referred the said order, copy of which is produced at page 20 of the compilation of civil application. It is submitted that the said order passed by the Hon'ble Division Bench was challenged by the petitioner by filing SLP. However, the Hon'ble Supreme Court, vide order dated 09.05.2019, dismissed the said SLP.

8. It is further contended that now on 19.06.2019, final award is already passed by the concerned authority under the Act of 2013 and possession is also given to the applicant on 20.06.2019 and therefore ad­interim relief Page 8 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER granted by this Court vide order dated 23.08.2019 passed in Special Civil Application No.14308 of 2019 be vacated.

9. On the other hand, learned Senior Advocate Mr. Anshin Desai appearing for the opponent No.1

- original petitioner has vehemently opposed this application and at the outset contended that present applicant or the State Government has not filed any reply in the petition and instead of that this application is filed for vacating the ad­interim relief granted by this Court and therefore this application may not be entertained.

10. Learned counsel has also referred the history of the litigation and referred relevant orders passed by the Hon'ble Division Bench of this Court as well as the Hon'ble Supreme Court. It is further contended that the present applicant - original respondent No.2 has violated mandatory provisions of GDCR and therefore when the said aspect was pointed out to the concerned respondent authorities, report was submitted by the Chief Town Planner, State of Gujarat, wherein he has specifically stated that necessary margin is not kept from the canal and though the process of acquisition of the land in question is not concluded and since the construction is made on Page 9 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER the said land, appropriate proceedings be initiated. Learned counsel has referred the said communication produced at page 101 of the compilation of the petition. At this stage, learned counsel has also referred communication dated 28.06.2019 addressed by the Town Planner, Patan to the Chief Officer of applicant Nagarpalika, copy of which is produced at page 104 of the compilation of the petition. It is submitted that in the said communication also the said authority directed the Chief Officer to remove the unauthorized construction made in the land in question as the construction is carried out in violation of the GDCR. Similar type of letters are also placed on record of the main petition. After referring to the same, it is contended that when the various authorities have observed that the applicant Nagarpalika has violated the provisions of GDCR, the present petition is filed, wherein this Court has rightly granted ad­interim relief in favour of the petitioner by which the present applicant - original respondent No.2 was directed not to carry out any further construction. It is, therefore, urged that this application be dismissed.

11. Learned Government Pleader Ms. Manisha L.Shah has supported the submissions canvassed by Page 10 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER learned Senior Advocate Mr. S.N.Shelat who is appearing for the applicant - Patan Nagarpalika. Learned Government Pleader has also referred the orders passed by the Hon'ble Division Bench of this Court as well as Hon'ble Supreme Court in the petitions filed by the petitioner in the first round of litigation. It is thereafter contended that now it is not open for the petitioner to contend that applicant Nagarpalika has violated any provision of GDCR. It is, therefore, urged that the ad­interim relief granted by this Court be vacated as prayed for by the present applicant.

12. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that petitioner and others are the owners of land admeasuring 4855 sq. meters of Revenue Survey No.343 Paiki situated at village Hansapur, District Patan. The District Collector, Patan passed an order on 13.06.2013, whereby the land adjoining to the land of the petitioner i.e. land bearing Revenue Survey No.375/A/2 was allotted to the applicant for construction of Water Pumping Station. The said order passed by the District Collector was challenged by the present petitioner by filing Special Civil Application No.17782 of 2013. It is required to be noted that Page 11 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER in the said petition, the petitioner has prayed for the following relief/s:

"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 13/06/2013 passed respondent -

Collector (at Annexure - C hereto);

(B) Your Lordships may be pleased to direct respondents to demolish the illegal construction put up by them in the land belonging to the petitioner bearing Survey No.343 at Hansapur, District Patan.

(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions holding that the action of the respondent authorities in digging up the land of the petitioner for the purpose of construction of gutter water pumping station being land situated at Revenue Survey No.343, Hansapur, District Patan is illegal and without authority of law;"

13. It is further revealed that while carrying out the construction of Water Pumping Station, the applicant has also made construction on the land admeasuring 58 sq. mtr. of the original petitioner from Revenue Survey No.343 paiki. When the said aspect was realized, the concerned authority started process of acquisition of the disputed land by issuance of notification under Section 11 of the Act of 2013. However, the required procedure was not followed by the Page 12 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER concerned authority and therefore the petitioner preferred Special Civil Application No.18038 of 2015. The said petition was also heard along with Special Civil Application No.17782 of 2013 by the Hon'ble Division Bench of this Court. Both the aforesaid petitions were decided by common order dated 20.07.2017.

14. At this stage, it is required to be noted that the Hon'ble Division Bench of this Court disposed of both the petitions with the following directions:

"[8.0] In view of the above and for the reasons stated hereinabove, Special Civil Application No.17782/2013 is hereby partly allowed. Rule is made absolute accordingly to the aforesaid extent so far as Special Civil Application No.17782/2013 is concerned.
[8.1] Respondents are hereby restrained from putting up any further construction on the land belonging to the petitioner at Survey No.343 situated village Hansapur, District Patan admeasuring 58 sq meters until authorised by law and /or until the the land in question is acquired under the Act, 2013 and the petitioner has been paid the compensation for the same as per the law.
[8.2] However, Special Civil Application No.17782/2013 is hereby rejected /dismissed so far as challenge to the order of the Collector dated 13/06/2013 alloting /allocating the land bearing Survey 375 /A paiki 2 admeasuring 100 sq meters to the Patan Nagarpalika for the purpose of pumping station is concerned.
Page 13 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019
C/SCA/14308/2019 IA ORDER [8.3] The prayer of the petitioner to direct the respondents to demolish the construction already put up on the land belonging to the petitioner I.e. on the land bearing Survey No.343 admeasuring 58 sq meters is hereby rejected. As observed hereinabove, the same shall not be in the larger public interest and ultimately it will be waste of public money.
[9.0] In view of the above and for the reasons stated hereinabove, Special Civil Application No.18038/2015 is hereby allowed. Impugned Notification under Section 11 of the Act, 2013 with respect to the land bearing Survey No.343 admeasuring 58 sq meters situated at village Hansapur, District Patan is hereby quashed and set aside. However, it will be open for the appropriate authority to acquire the land under Act, 2013 after following the due procedure as required under the provisions of the Act, 2013, including under Section 9 of the Act, 2013. Rule is made absolute to the aforesaid extent so far as Special Civil Application No.18038/2015 is concerned. No order as to costs."

15. Thus, from the aforesaid order passed by the Division Bench of this Court, it is clear that the petition being Special Civil Application No.17782 of 2013 filed by the petitioner challenging the order dated 13.06.2013 passed by the Collector in favour of the applicant is dismissed and the request of the petitioner for giving direction to the respondent authorities to demolish the construction already put up on the land belonging to the petitioner i.e land bearing survey no.343 paiki admeasuring 58 sq. mtrs. was Page 14 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER also rejected by observing that the same shall not be in the larger public interest and ultimately it will be waste of public money. It is not in dispute that the said order is not set aside by the Hon'ble Supreme Court.

16. From the material placed on record of civil application as well as from the petition, it has further emerged that after the notification issued earlier under Section 11 of the Act of 2013 was set aside and as per the liberty granted by the Hon'ble Division Bench of this Court, fresh process was issued for acquisition of the land admeasuring 58 sq. mtrs. of the petitioner under the Act of 2013. The concerned authority therefore issued notifications under Sections 10A and 11 of the Act of 2013. Petitioner, therefore, once again filed Special Civil Application No.14325 of 2018. The Hon'ble Division Bench of this Court has issued rule in the said petition on 20.11.2018. However, when interim relief was not granted by the Hon'ble Division Bench, the petitioner challenged the said order by filing petition for Special Leave to Appeal 5121 of 2019 before the Hon'ble Supreme Court. The Hon'ble Supreme Court, vide order dated 22.02.2019, dismissed the said petition with a liberty to the petitioner to apply to the High Court in the pending matter for grant of appropriate interim relief in accordance with law. Copy of the said order is produced at page 67 of the compilation Page 15 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER of the main petition. Petitioner, therefore, filed Civil Application (For Direction) No.1 of 2019 in Special Civil Application No.14325 of 2018. The Hon'ble Division Bench, once again, by an order dated 25.03.2019, rejected the civil application filed by the petitioner for stay. While dismissing the said civil application, the Hon'ble Division Bench of this Court has observed in para 5 as under:

"5. Having regard to the facts and circumstances of the case and considering the order dated 20.07.2017 passed in Special Civil Application No. 17782 of 2013 whereby this Court categorically allowed the concerned authority to be exempted from undertaking Social Impact Assessment study as required under the Act, 2013 and thereafter also objections were invited as required under Section 15(2) of the Act, 2013 and now the stage of Section 19 is reached and further procedure to be followed coupled with the fact that the main matter is ordered to be fixed for final hearing on 11.04.2019, we find no reason or justification to stall the project undertaken by the Municipality for larger good of the public. In view of the above, Civil Applications for stay are rejected in absence of merit. Civil Application for joining party is also rejected accordingly."

17. Petitioner again challenged the order dated 25.03.2019 passed by the Hon'ble Division Bench of this Court in the aforesaid application by filing petition for Special Leave to Appeal No.11159 - 11162 of 2019. The SLPs filed by the Page 16 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER petitioner came to be dismissed by the Hon'ble Supreme Court vide order dated 09.05.2019. Copy of the said order is produced at page 28 of the compilation of the civil application. Thus, from the order dated 25.03.2019 passed by the Hon'ble Division Bench of this Court in civil application for stay filed by the petitioner it is clear that the Hon'ble Division Bench has specifically observed that ".......we find no reason or justification to stall the project undertaken by the Municipality for larger good of the public....."

18. Thus, from the order dated 20.07.2017 passed by the Hon'ble Division Bench of this Court in Special Civil Application No.17782 of 2013, it is clear that request of the petitioner for demolition of the construction already put up on the land of the petitioner was rejected. Similarly, the Hon'ble Division Bench of this Court, vide order dated 25.03.2019, once again not entertained the request of the petitioner to stall the project undertaken by the applicant Municipality for the larger good of the public.

19. During the course of hearing of this application, when inquired, learned Senior Counsel Mr. Desai after taking instructions, fairly submitted that 80% of the construction is already made by the Nagarpalika and after the Page 17 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER orders passed by the Hon'ble Division Bench of this Court in the aforesaid two petitions, only small room is constructed.

20. Thus, keeping in view the aforesaid facts and the orders passed by the Hon'ble Division Bench of this Court in the aforesaid two petitions, the contention of the petitioner is required to be examined at this stage. The only contention now taken by the petitioner is that the applicant Nagarpalika has violated certain provisions of GDCR and construction is carried out in margin area and in support of the said contention, certain reports/communications are relied upon. At this stage, it is required to be noted that it is not in dispute that the applicant Nagarpalika has not carried out any construction in the so­ called margin area violating the provisions of GDCR after the order dated 20.07.2017 passed by the Hon'ble Division Bench of this Court in Special Civil Application No.17782 of 2013 as well as order dated 25.03.2019 passed by the Hon'ble Division Bench of this Court in Civil Application No.1 of 2019 in Special Civil Application No.14325 of 2018 and therefore the aforesaid contention was available to the petitioner at the relevant point of time that while carrying out 80% construction by the applicant Nagarpalika, mandatory provisions of Page 18 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER GDCR have been violated. However, no such contention was taken by the petitioner at the relevant point of time and now when the land of the petitioner is already acquired and the award is passed on 19.06.2019 under the provisions of the Act of 2013, at this stage when the petitioner has lost before this Court as well as before the Hon'ble Supreme Court, now petition is filed relying upon the aforesaid reports and communications.

21. In the aforesaid facts and circumstances of the present case, this Court is of the humble view that when the Hon'ble Division Bench of this Court in the order dated 20.07.2017 not entertained the relief of the original petitioner for demolition of the construction in question by observing that, 'the same shall not be in the larger public interest and ultimately it will be waste of public money' and thereafter also the Hon'ble Division Bench while passing the order dated 25.03.2019 also observed that, 'we find no reason or justification to stall the project undertaken by the Municipality for the larger good of the public', the present application requires consideration. At this stage, it is required to be noted that the present application is filed by the applicant - original respondent No.2 under Article 226(3) of the Constitution of Page 19 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER India with a request to vacate the ad­interim relief granted by this Court in favour of the present opponent No.1 - original petitioner. Thus, looking to the provisions contained in Article 226(3) of the Constitution of India, this application is taken up for hearing with consent of the learned advocates appearing for the parties. Main petition is, therefore, yet to be decided finally by this Court and therefore the observations made by this Court in the present order are tentative observations for deciding the application filed under Article 226(3) of the Constitution of India and the said observations shall not come in the way of the original petitioner at the time of deciding the main petition.

22. Accordingly, the application is allowed. Ad­ interim relief granted by this Court vide order dated 23.08.2019 in favour of petitioner is hereby vacated. The main matter being Special Civil Application No.14308 of 2019 be placed for further hearing on 10.10.2019.

23. At this stage, learned Senior Advocate Mr. Anshin Desai appearing for the opponent No.1 - original petitioner requested that this order be stayed for a period of 10 days so that opponent No.1 - original petitioner can file an appeal Page 20 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019 C/SCA/14308/2019 IA ORDER against this order. The stay granted by this Court is in operation till today and therefore in the interest of justice, the same is extended for a further period of 10 days from today.

(VIPUL M. PANCHOLI, J) Jani Page 21 of 21 Downloaded on : Thu Sep 19 00:13:20 IST 2019