Gujarat High Court
Chanakya Co-Operative Housing Society ... vs State Of Gujarat & 5 on 7 September, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/14346/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14346 of 2016
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CHANAKYA CO-OPERATIVE HOUSING SOCIETY LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Petitioner(s) No. 1
MR.JANAK RAVAL, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 07/09/2016
ORAL ORDER
1. Present petition is filed under Section 14, 21 and 226 of the Constitution of India as well as under the provisions of the Gujarat Municipalities Act for the prayer, inter alia, that:-
"9(A) That this Hon'ble Court may be pleased to admit and allow this petition.
(B) That this Hon'ble Court be pleased to quash and set aside the inaction of the respondents more particularly the respondent nos.2 and 3 i.e. the Collector, Navsari and the Navsari Municipality in falling to remove the unauthorized encroachment and occupation of the basement area made by the private respondent nos. 4 to 6 and in turn direct the respondent nos.2 and 3 to demolish the encroachment made by way of unauthorized construction by the private respondent nos.4 to 6 in the basement area of the building of the petitioner society known as Chanakya Apartment Cooperative Housing Society Limited, registered in the Cioty Survey Records vide Tika No.90/ City Survey No.3789/1/A situated in Navsari Town.
C. That this Hon'ble Court be pleased to direct the Director of Municipalities, Gandhinagar to initiate disciplinary proceedings against the Chief Officer of the Navsari Municipality of having connived with the private respondent nos.4 to 6 and accepted impact fee from the private respondents for regularizing the basement area Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Sep 09 00:57:24 IST 2016 C/SCA/14346/2016 ORDER reserved only for parking, in the name of the petitioner society despite in the year 2006, the then Chief Officer of the Municipality had got removed / demolished the encroachment in the form of unauthorized constitution put up by the ancestor of the private respondent nos. 4 to 6.
D. Pending admission and/or final disposal of this Special Civil Application, this Hon'ble Court be pleased to direct the respondent nos.2 and 3 I.e. the Collector, Navsari and Chief Officer of Navsari Municipality to remove the unauthorized encroachment put up by the private respondents in the parking area situated in the basement of the building and set open the basement area of the building known as Chankya Apartment Cooperative Housing Society Limited, constructed on Tika No.90/ City Survey No.3789/1/A situated at Navsari Town for it to be utilized for parking.
2. Heard learned advocate Shri. Bharda for the petitioner. Learned advocate for the petitioner has referred to the papers at length and submitted that the encroachment has been made in the parking area, and therefore, under Section 258 of the Municipalities Act the respondents are having the power to remove which they have failed to do so.
3. Learned advocate for the petitioner, therefore, submitted that present petition is filed seeking appropriate direction to remove the encroachment. He also submitted that vide communication dated 08.02.2006 at Annexure-C, the parking was opened, and therefore, it would meant to be opened. However, thereafter, it was sought to be regularized without knowledge of the petitioner-society. Learned advocate for the petitioner has referred to the papers and submitted that payment of impact fee for regularization etc. is not made by the petitioner-society and as stated the encroachment made in the parking area and the vehicles of the members of the society are thrown out and members are forced to park outside. Therefore, present petition is filed. He also referred to the photographs and other papers to suggest that the Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Sep 09 00:57:24 IST 2016 C/SCA/14346/2016 ORDER petitioner-society is not aware about any such encroachment, and therefore, he sought direction for removal of the encroachment in the parking area of the society.
4. Though submissions have been made, the moot question is whether the petitioner-society can file such petition and whether this Court would be justified in exercising discretionary jurisdiction under Article 226 of the Constitution of India in the peculiar facts of the case. The petitioner-society has referred to communication dated 08.02.2006 at Annexure-C, the municipality has opened the parking space and it has also been made clear that it has to be kept open for the utilization as a parking and it will be responsibility of the petitioner-society. This communication is of 2006, and thereafter, how the encroachment has taken place or who has made the encroachment or what steps have been taken by the society has not been clearly stated and as if somebody by magical event, all of sudden has encroached and the petition is filed is not believable particularly, when the petitioner-society has referred to the aspect of regularization and the payment of fees. Assuming that application for regularization is made behind back of the society or without any knowledge of the office bearers of the society, the fact remains that when the encroachment is made no steps taken by the petitioner - society. No criminal complaint is filed or FIR has been lodged. There is no communication raising any objection by the society that there should not be any regularization. The Miscellaneous Application at Annexure-I refers to the details with specific names of persons mentioned therein that they have encroached in the parking area. It is also stated that vehicles of the members of the society have thrown out by them. However, there is no criminal complaint filed nor any Civil Suit is filed. Therefore, it was obligation of the society that once the municipality had opened the parking space with clear and Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Sep 09 00:57:24 IST 2016 C/SCA/14346/2016 ORDER specific communication dated 08.02.2006 at Annexure-C, then it will be obligation of the society to keep parking space open. The society ought to have taken necessary steps or ought to have been vigilant. It is not possible to digest the manner in which the story about the encroachment and regularization is narrated. The petitioner - society does not seem to have bothered to take appropriate measures and if the encroachment is made, it was for the society which should have taken immediate steps which they have failed to do so. Therefore, there is no quarrel with regard to the jurisdiction or authority under the Municipalities Act, but once the petitioner - society having given open parking space, it would not be justified to invoke the discretionary power under Article 226 of the Constitution of India again and again so that at their instance every time the municipality should clear the encroachment. Therefore, the petitioner can avail appropriate remedy because it involves the disputed question of facts and require material evidence to be examined particularly when there is issue of regularization which the society has stated that it is without their knowledge. Therefore, present petition under Article 226 of the Constitution of India cannot be entertained and the petitioner- society can avail appropriate remedy, as may be advised and present petition deserves to be dismissed in limine and accordingly stand dismissed.
(RAJESH H.SHUKLA, J.) Girish Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Sep 09 00:57:24 IST 2016