Gujarat High Court
Kanubhai vs Municipal on 5 March, 2012
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/1075/2012 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1075 of 2012
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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KANUBHAI
ISHVARBHAI PATEL - Petitioner(s)
Versus
MUNICIPAL
COMMISSIONER & 3 - Respondent(s)
=====================================================
Appearance :
MR
UDAY R BHATT for Petitioner(s) : 1,
None for Respondent(s) : 1 -
4.
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 05/03/2012
ORAL
JUDGMENT
1. This petition under Articles 226 and 227 of the Constitution of India, has been preferred with the following prayers:
"(a)Admit this petition
(b) Call for the records of the matter and direct an order the respondents to take immediate action in terms of the petitioner's first application cum notice dated 18/9/2010 (Annexure A), legal notice (First Legal notice) dated 13/7/2011 (Annexure B),Legal notice (Second Legal notice) dated 7/10/2011(Annexure E), Legal notice (Third Legal notice) dated 15/11/2011 (Annexure F),legal notice (Fourth Legal notice) dated 10/1/2012 (Annexure H) and order immediate removal of all illegal structures, encroachment etc and adherence to the Environmental Laws and hold and declare that the acts of omission and commission by the Respondents and concerned officers is perverse, malicious in law and in fact,illegal, arbitrary, unjust and violative of the legal, constitutional and fundamental rights of the petitioner under Articles 14,19 and 21 of the constitution of India and against the Environment and order action against all errant Respondents and its officers and pass such other and further orders deemed fit and proper on the peculiar facts and in the circumstances of the case.
(c) Grant interim relief by directing resumption of action and demolition of illegal encroachment an unauthorized development and constructions by A M C against the errant members of the Society.
(d) Grant ad-interim relief/stay orders/status quo orders in terms of Para-C herein above pending hearing and final disposal of this petition.
(e) Grant any other and further relief's, orders,directions in favour of the petitioners against various authorities in the special and peculiar facts and circumstances of the case deem fit and proper;
(f) Grant costs including special costs in the peculiar facts and circumstances of the case."
2. The petitioner is a member of the Tejas Co-operative Housing Society Ltd. Part I, ('The Society', for short) and is occupying Sub-Plot Unit No:48 of the said Society. The petitioner gave an application-cum-notice to the respondent Ahmedabad Municipal Corporation on 18-09-2010, pointing out that the residents of about 44 tenements have committed various illegalities and put up unauthorized constructions. It was also pointed out that the common Plot of the Society had been encroached upon, there was unauthorized construction in the margin land and common roads and violations of the Floor Space Index, (FSI). According to the petitioner, due to his efforts, action was initiated by the respondent Corporation against the errant members of the Society. Proceedings have been initiated against the concerned persons who have been directed to remove the illegal constructions. However, according to the petitioner, the action taken is only on paper, therefore, he was constrained to issue four legal notices dated 13/07/2011, 07/10/2011, 15/11/2011 and 10/01/2012 to the respondents. The grievance of the petitioner is that the action taken by the respondents against the members of the Society who have put up illegal constructions is not satisfactory, as the officers of the respondent Corporation are not implementing the notices issued by them and are not taking steps to demolish the unauthorised constructions. Hence, the petition.
3. Mr.Uday R.Bhatt, learned advocate for the petitioner, has submitted that the 'errant' Officers of the Ahmedabad Municipal Corporation are succumbing to 'influence' and are not taking action for demolition of the unauthorized constructions put up by 44 members of the Society. In spite of the application and four legal notices issued by the petitioner, only action on paper is being taken, and no proper reply is being given to the queries of the petitioner under the Right to Information Act,2005, as to when the illegal constructions shall be demolished.
3.1 It was further contended that as a member of the Society, the petitioner has a right to ensure that the common plot, roads and facilities are preserved and the Society becomes more livable and does not get congested due to illegal constructions. That, if unauthorized constructions are permitted to come up, it will create a ghetto-like situation that is not conducive for peaceful living in the Society. It is next contended that by encroaching on the common plot, functions such as marriages and religious functions cannot be held by the other residents of the Society. The right to life of the petitioner, enshrined under Article 21 of the Constitution of India, has been affected. That, the petitioner has a right to use and occupy the common plot as per the judgment of this Court in H.C.Nanalal v. V.G.Vaghela, 2010(1)GLH 710. That no proper answer has been given to the petitioner to his application made under the Right to Information Act, regarding the time frame in which the illegal constructions will be demolished, which infringes the right to know of the petitioner, as held by the Supreme Court in Dinesh Trivedi v. Union of India, (1997) 4 SCC 306. Lastly, it is contended on behalf of the petitioner that the Officers of the respondent Corporation have failed in the performance of their duties, therefore, a writ of mandamus is required to be issued to them, as held by the Supreme Court in Secretary, Cannanore District Muslim Educational Association v. State of Kerala, (2010) 6 SCC 373.
4. I have heard learned counsel for the petitioner and perused the averments made in the petition and considered the submissions made at the Bar. It transpires from perusal of the Memorandum of the petition and documents annexed thereto that the Society had earlier filed Special Civil Application No.987 of 2010, inter alia against the illegal construction put up by the petitioner. The said petition was disposed of by this Court on 15-7-2010, with directions that action be taken against the petitioner,in accordance with law, after giving him an opportunity of hearing. The said order has not been annexed to the petition. It appears that thereafter, the petitioner removed the unauthorized construction put up by him, and is now agitating that the alleged unauthorized construction put up by 44 members of the Society, be demolished. The application made by the petitioner to the respondent Corporation on 18-9-2010 gives the names of the persons who have put up unauthorized constructions, and describes the illegalities allegedly committed by them. It appears that action has been taken by the respondent Corporation and notices under Section 260 of the Bombay Provincial Municipal Corporations Act, 1949 have been issued to the persons who have put up unauthorized constructions. The communication dated 16-8-2011 addressed by the Deputy Municipal Commissioner to the Personal Assistant to the Hon'ble Minister for Water Supply and Water Resources, Urban Development and Urban Housing Department that is annexed as Annexure 'C' to the petition makes this fact clear. It is also stated in the said communication that proceedings to remove the illegal constructions would be initiated as per priority. Further, another communication dated 20-12-2011 from the Deputy Municipal Commissioner to the Deputy Secretary to the Hon'ble Minister for Urban Development and Urban Housing Department makes it clear that notices under Section 260 have already been issued for removal of the illegal constructions and appropriate proceedings are being taken for removal thereof. From the above, it is evident that the concerned respondents are in the process of taking steps to remove the alleged unauthorized constructions.
5. Apart from the above, a question would now arise whether the petitioner is a 'person aggrieved' so as to maintain the present petition under Article 226 of the Constitution of India. The Society has not filed the present petition and neither has the petitioner been authorized to file it on its behalf. It has been submitted by the learned advocate for the petitioner that the right to life of the petitioner under Article 21 of the Constitution of India has been adversely affected. However, a mere statement to this effect, unsubstantiated by any details regarding how, and in what manner, this right has been violated would not make the petition maintainable at the behest of the petitioner. It is not the case of the petitioner that the offending constructions are adjoining his house or that he is facing any personal difficulty and/or hardship or inconvenience due to them. The petitioner is a resident of the Society where the alleged unauthorized constructions are allegedly taking place. In fact, the petitioner was himself made to demolish the unauthorized construction put up by him.
6. In Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578, the Supreme Court has held as below:
"36.It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger';
(iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold."
7. A Division Bench of this Court in Lalbhai Trading Company v. Union of India, reported in 2006(1) GLR 497, after examining various judicial pronouncements, including Jasbhai Motibhai Desai v. Roshan Kumar (Supra) and certain other English decisions, has held that:
"14 On a conspectus of the aforesaid case-law, it becomes clear that the words 'person aggrieved' are required to be ascertained with reference to the purpose of the provisions of the statute in which they occur. The meaning may vary according to the context of the statute. However, one thing is certain, a person can be said to be aggrieved if a legal burden is imposed on him which may be in the form of being denied or deprived of something to which such person is legally entitled.
[a] The meaning of the words 'aggrieved person' cannot be read as an expression which is rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury suffered by the person are relevant factors.
[b] The duty of the Court is to read into the statute, a duty to act fairly in accordance with the principles of natural justice. If a person suffers a wrong as a result of unfair treatment on the part of the authority, he is a person who has suffered a legal grievance, against whom a decision has been pronounced which decision has either wrongfully deprived him or wrongfully refused him something or wrongfully affected his title to something. In other words, the person must have suffered a legal wrong or injury, in the sense, that his interest is prejudicially and directly affected by the act or omission of the authority.
[c] The grievance has to be his own beyond some grievance or inconvenience suffered by him in common with the rest of the public. The test is: can the person be said to be entitled to object and be heard by the authority before the authority takes the impugned action.
[d] The person has to be directly and immediately affected. An aggrieved party is one whose personal, pecuniary or property rights are adversely affected by another person's action or by a decree or judgment by a Court.
[e] An appeal can be preferred from every original decree or from every decree passed in appeal. The appellant must be a person aggrieved by a decree not merely by a finding. The person must be prejudicially or adversely affected by the decree. In other words, when a person is fastened with liability whereunder his property, of every type, is directly affected. To put it differently,is the person, by virtue of the decree, called upon to discharge a pecuniary liability so as to deprive him of his property. If the answer is yes, he is an 'aggrieved person'."
(emphasis supplied)
8. The principles of law enunciated by the Division Bench have been relied upon by this Court in Ganpat Mohanbhai Vasava v. Addl. Development Commissioner, AIR 2008 Gujarat
88.
9. Examining the case of the petitioner in the light of the principles of law culled out by the Division Bench, and even if a broader interpretation is given to the words "person aggrieved", the petitioner would still not come under the umbrella of the said term. To be a 'person aggrieved' one must have suffered a legal wrong or injury by some act of omission or commission of an authority, which is prejudicial to the said person. He has to be directly and immediately affected, and must have suffered a legal wrong or an injury by an act that prejudicially affects his interest. Admittedly, the petitioner has no personal interest in the alleged illegal constructions in the Society, and no pecuniary or property right of the petitioner has been adversely affected. Further, it is not the case of the petitioner that alleged illegal constructions are causing him personal hindrance, hardship or inconvenience, in any manner. The most salient aspect of the matter is that the petition has not been filed in the public interest. Rather, it appears to be motivated by the fact that pursuant to the order of this Court dated 15-7-2010 passed in Special Civil Application No.987 of 2010, the petitioner was himself made to demolish the illegal constructions put up by him. Be that as it may, the petitioner has already brought to the notice of the concerned authorities that the alleged illegal constructions are being carried on in the Society. It is also clear from the record that the authorities have taken action in this regard, notices have been issued and the action of demolition is also contemplated. The concerned respondents are, therefore, taking action in accordance with law.
10. It has been submitted on behalf of the petitioner that the common plot in any residential Society is meant for the common use and common purposes of all members of the Society. The principles of law enunciated in the judgment in the case of H.C.Nanalal v. V.G.Vaghela (Supra), have been pressed into service, in this regard. In that case, the Society had unanimously resolved to sell the common plot, which is not the case in the present petition. The case of the petitioner is that his use of the common plot, as a member of the Society, is being hindered by the alleged unauthorized constructions, therefore, his right to life under Article 21 of the Constitution of India has been violated. There is no material on record to indicate to what extent the common plot has been encroached upon, and whether it has been rendered absolutely unusable, or not. As already stated hereinabove, the petitioner has not substantiated how, and to what extent, his right to life has been adversely affected.
11. Another submission advanced by the learned counsel for the petitioner is that the respondent Corporation is not giving a proper reply to his application made under the Right to Information Act, thereby violating the right to know of the petitioner. Reliance has been placed upon the judgment in the case of Dinesh Trivedi v. Union of India (Supra) in support of this submission. In that case, the report of the Vohra Committee was tabled in Parliament by the Union Government on 1-8-1995, where it became the subject matter of a prolonged and intense debate. The petitioner therein who was a member of Parliament (Rajya Sabha), demanded that the Union Government should publish the reports which were the basis of the Vohra Committee Report which, according to him, the Union Government was trying to suppress. The matter was disposed of with a direction to the Union Government to constitute a High Level Committee to monitor investigations involving the kind of nexus referred to in the Vohra Committee Report.
11.1 The factual matrix of that case is on a totally different footing than the one obtaining in the present case. If the petitioner of the present petition is, in any way, aggrieved by the reply given to him under the Right to information Act,then the remedy would lie under the said Act itself and not by way of this petition.
12. Reliance has also been placed upon a judgment in the case of Secretary, Cannanore District Muslim Educational Association v. State of Kerala (Supra). The appellant therein was a religious minority association. The Supreme Court held that the appellant had the right to get sanction, that was accepted by the Government as per its original policy and denied by the High Court on the changed policy of the Government. It was held by the Apex Court that the appellant had a right, or at least a legitimate expectation, to get sanction to hold higher secondary classes, hence a writ of mandamus should have been issued in favour of the appellant.
12.1 On the strength of this decision, it has been submitted by the learned advocate for the petitioner herein that a writ of mandamus is required to be issued to the respondents. The reliance placed by the learned advocate for the petitioner upon this judgment appears to be misplaced, on the facts and in the circumstances of the present case, as detailed hereinabove.
13. Before issuing a writ of mandamus, the Court would have to ascertain whether there exists a legal right in the petitioner and a corresponding legal obligation on the State, as held by the Supreme Court in Union of India v. Arulmozhi Iniarasu, (2011) 7 SCC 397.
The relevant extract of the said judgment is reproduced hereinbelow:
"26.Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref.: Sushanta Tagore v. Union of India, U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh, State v Sashi Balasubramanian and State of Orissa v. Prasana Kumar Sahoo)"
(emphasis supplied)
14. In the present case, the petitioner has not succeeded in establishing any legal right. Not only that, the petitioner is also not a 'person aggrieved'. Besides, the petition has not been filed as a public interest litigation. The prayers made by the petitioner are to the effect that directions be issued to the respondents to take action as per the applications and legal notices issued by the petitioner. As has already been indicated hereinabove, action appears to have been initiated by the respondents upon the application made by the petitioner as is evident from the material on record. Nothing prevents the respondents from taking further action, if it is warranted by law. As such, it cannot be said that the respondent authorities are lacking in the performance of their statutory duties and obligations. No personal right or interest of the petitioner has been infringed.
The petitioner is not a person aggrieved. For reasons stated hereinabove, a writ of mandamus, as prayed for, by the petitioner cannot be issued and neither would it be appropriate to permit the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India in order to exert pressure upon the respondent authorities, especially when action has been initiated by them.
15. It is increasingly being noticed by this Court that petitions, such as the present one are flooding the Court, taking up considerable amount of time and leaving the Court with lesser time to deal with the meritorious matters, wherein legal and fundamental rights of the litigants are actually affected. In this regard, it would be appropriate to notice the observations made by the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar (Supra), which squarely apply to the facts of the present case:
"48.
It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money."
(emphasis supplied)
16. As a result of the above discussion and for the reasons stated hereinabove, the petition cannot be entertained. It is, accordingly, rejected.
(Smt.Abhilasha Kumari,J) arg Top