Gujarat High Court
Bhartiben Keshavbhai Kathi vs State Of Gujarat & 2 on 13 January, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/20417/2016 ORDER
N THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20417 of 2016
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BHARTIBEN KESHAVBHAI KATHI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, 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 R.M.CHHAYA
Date : 13/01/2017
ORAL ORDER
1. Heard Mr.Nirav Sanghvi, learned advocate for Mr. Mr.Ashish Dagli, learned advocate for the petitioner and Mr. Janak Raval, learned AGP on advance copy for respondent No. 1 and 2.
2. In fact the matter was listed on 22.12.2016. Considering the factual background of this petition, wherein earlier two orders have been passed by this Court, the learned AGP was asked to take instructions in the matter.
3. This Court, in order dated 02.02.2016, passed in SCA No.1623/16, has observed thus "2. It is required to be noted that earlier the petitioner has prayed for almost similar reliefs by way of writ petition being Special Civil Application No.14548 of 2012, wherein this Court, on the statement made by learned counsel for respondent No.3 Municipality, disposed of the matter by observing as under: Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Jan 14 00:41:00 IST 2017 C/SCA/20417/2016 ORDER "The petitioner has filed this petition under Article 226 of the Constitution of India with the following main prayers:
[A] That the Hon'ble Court may be pleased to admit this petition.
[B] That the Hon'ble Court may be pleased to allow this Special Civil Application by issuing an appropriate writ, order or direction to the respondent authority in turn to take appropriate action in view of the issuance of notices at AnnexureG dated 9.11.2011, 12.3.2012 and 21.4.2012 and as per the assurance given in Swagat Online Karyakram by Chief Officer of Nagarpalika on 26.4.2012 at AnnexureJ in the facts and circumstances of the present case in reference to the common plot No.1 [survey No.391 Chhaya] in the facts and circumstances of the case and in the interest of justice.
[C] This Hon'ble Court may be pleased to issue appropriate writ, order or direction directing the respondent Collector who also in turn to take appropriate suitable action against erring officer of Nagarpalika of deliberately not taking any action in spite of the clear order direction issued from the office of Collector at AnnexuresM & N in the facts and circumstances of the present case.
Having heard learned advocates for the parties and in view of the statement made by Mr. Buch, learned advocate for the respondent No.1 that they will take action in accordance with law for the time being I am inclined to grant prayer in terms of para 23[B] to take action in accordance with law.
Page 2 of 6HC-NIC Page 2 of 6 Created On Sat Jan 14 00:41:00 IST 2017 C/SCA/20417/2016 ORDER Accordingly, this petition stands disposed of. Notice is discharged. There shall be no order as to costs
3. Thereafter, the petitioner through his advocate also gave a legal notice to Collector, Porbandar. It appears that the said order was taken into consideration by the authorities like City Survey Superintendent and District Collector, Porbandar, which is quite evident from communications dated 11.07.2013 and 23.08.2013 at Annexure:E in particular.
4. It further reveals that respondent No.3Municipality issued notice as per the order passed by this Court to the affected persons on 25.09.2013. The said order was challenged by affected persons by way of filing Regular Civil Suit No.164 of 2013, wherein the affected persons who were the plaintiffs in the suit also prayed for temporary injunction by way of an application at Exh:5, which came to be rejected vide order dated 07.08.2014 by learned Additional Senior Civil Judge, Porbandar. The said order was again challenged by way of preferring Misc. Civil Appeal No.19 of 2014, which also has been dismissed by learned Additional District Judge, Porbandar vide order dated 29.11.2014.
5. Record further indicates that thereafter, the petitioner approached District Collector, Porbandar by communication dated 18.04.2015, but thereafter, as nothing was done, the petitioner filed Misc. Civil Application (for direction) No.2449 of 2013 before this Court (Coram : Hon'ble Mr.Justice K.M.Thaker), which came to be disposed of vide order dated 10.09.2014. Thereafter, present petition is filed.
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6. Record further indicates that respondent No.3 has also issued fresh notice on 25.07.2015 to the affected persons, however, no actions are taken.
7. In light of the fact that respondent No.3 Municipality has made statement before this Court on basis of which the earlier dated 24.06.2013 passed by this Court in Special Civil Application No.14548 of 2012, District Collector, Porbandar is hereby directed to look into the application dated 18.04.2015 addressed by the petitioner and take appropriate steps to see that the order dated 24.06.2013 passed by this Court in Special Civil Application No.14548 of 2012 is complied with. It is clarified that this Court has not expressed any opinion on merits and the authority including the District Collector shall have to adhere to the basic principles of natural justice before taking any action.
With these observations, the petition stands disposed of.
Direct Service is permitted."
4. The said order takes care of the whole factual matrix. It appears from the record that the petitioner is member of a plotted society as averred in the petition and has objection to the construction which is made in the common plot. It is the case of Mr.Sanghvi, learned counsel appearing for the petitioner that the orders passed by this Court is partly implemented. The record indicates that on 29.11.2014, the encroachment was removed, which according to the petitioner is partimplementation of the earlier order. It also appears from the record that Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Jan 14 00:41:00 IST 2017 C/SCA/20417/2016 ORDER pursuant to the order dated 24.06.2013 passed by this Court in SCA No.14548/12, the Nagarpalika issued a notice under the relevant provisions of the Gujarat Municipalities Act, 1963 on 27.07.2013. As pointed out by Mr. Sanghvi, the same was subject matter of Civil Suit and ultimately, even further appeal being Misc. Civil Appeal No.19/14 at the stage of interim injunction wherein also the appellant Court has directed the authorities to comply with the directions issued by this Court. It is thereafter that the petitioner again approached this Court wherein the aforesaid order was passed.
5. Mr. Raval, learned AGP has produced for perusal of this Court the report submitted by the Collector, Porbandar, which is based on a panchnama dated 12.01.2017. On perusal of the same, which also includes the report submitted by the Mamlatdar, Porbandar, shows that some encroachment has been removed from the common plot. The papers shown by the learned AGP also includes the further report of Mamlatdar, Porbandar dated 08.11.2016, which recites that on verification by the City Talati, Chhaya, the illegal construction made on the dwellings of pujari has been removed.
6. In light of the aforesaid therefore, on perusal of the prayers prayed in the petition, the same are almost repetition of the earlier prayers.
Page 5 of 6HC-NIC Page 5 of 6 Created On Sat Jan 14 00:41:00 IST 2017 C/SCA/20417/2016 ORDER However, without expressing any opinion on merits, it would be open for the petitioner to point out to the District Collector, Porbandar, if any encroachment is still remaining on the common plot. It goes without saying that the District Collector shall adhere to the earlier directions issued by this Court.
7. With the aforesaid observations, the petition is disposed of. D.S. permitted.
(R.M.CHHAYA, J.) bjoy Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Jan 14 00:41:00 IST 2017