Gujarat High Court
Rukshmani Nagar Society vs Vadodara Municipal Corporation on 22 August, 2023
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/SCA/7054/2023 ORDER DATED: 22/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7054 of 2023
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RUKSHMANI NAGAR SOCIETY
Versus
VADODARA MUNICIPAL CORPORATION
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Appearance:
MR DAXESH T DAVE(248) for the Petitioner(s) No. 1
MS MANVI DAMLE FOR NANAVATI & CO.(7105) for the Respondent(s) No.
1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 22/08/2023
ORAL ORDER
1. By this petition, the petitioner has prayed for direction to the respondent corporation to remove the illegal construction and further direction to vacate the common plot area admeasuring 215.00 sq. mtrs. of the land of the petitioner society situated at Revenue Survey no.172/3 (City Survey no.2247) of Ward-4 of Vadodara City.
2. Tersely stated are the facts:
2.1 The petitioner is a society situated at Revenue Survey no.172/3 (City Survey no.2247) admeasuring 2687.60 sq. mtrs.
(hereinafter referred to as "the land in question"). The original owner had obtained the non-agricultural use permission on 21.01.1981 and thereafter, did the sub-plotting over the land in question, followed by the development permission in the year 1985. The plots were thereafter sold to individual purchasers and the purchasers have formed the petitioner society. The society is over 2687.60 sq. mtrs. of land with proposed road of 196.87 sq. mtrs.;
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common plot area admeasuring 215.00 sq. mtrs.; permissible FSI etc. All the members of the society have equal right over the common plot.
2.2 Grievance raised by the petitioner society, is that the common plot admeasuring 215.00 sq. mtrs., has been encroached upon by an outsider who has carried out construction without there being any ownership right or authority. Application dated 14.03.2022 was made to the respondent corporation seeking removal of the illegal construction. Owing to inaction on the part of the corporation, a writ petition being Special Civil Application no.9005 of 2022 was filed before this Court, which was disposed vide order dated 02.09.2022 directing the respondent corporation to act further in accordance with law, considering the material available on the record and discharge its statutory duty in true spirit within a stipulated period. Apropos which, the corporation issued a notice dated 07.10.2022, followed by letter dated 14.10.2022 rendering the property unusable. Once again, the common plot has been encroached upon and part of the building has been refurbished and the encroacher is residing there. Being aggrieved, that the petitioner has filed the captioned writ petition seeking direction to the respondent corporation to remove the illegal construction with further direction to vacate the area of the common plot admeasuring 215.00 sq. mtrs.
3. Mr Daxesh T. Dave, learned advocate appearing for the petitioner submitted that the common plot, is of the joint ownership of the members of the society which was encroached upon and therefore, the society has filed a writ petition before this Court. This Court, after hearing the parties, has passed an order dated 02.09.2022 directing the corporation to act in accordance with law, Page 2 of 9 Downloaded on : Sun Sep 17 02:07:46 IST 2023 NEUTRAL CITATION C/SCA/7054/2023 ORDER DATED: 22/08/2023 undefined considering the material available on the record and discharge its duty in true spirit. This Court, expected the corporation to act in accordance with law.
3.1 It is next submitted that Section 267 of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act of 1949") provides for powers of the Commissioner to direct removal of person. It provides that if the Commissioner is satisfied that the erection of any building or the execution of any such work has been unlawfully commenced or is being unlawfully carried out upon any premises, a written notice, is required to be given to the person requiring him to stop the same forthwith. Sub-section (2) of Section 267 of the Act of 1949 further provides that if the erection or execution is not stopped, the Commissioner may direct the person carrying on such erection or execution to be removed from such premises with the help of any police officer and may cause such steps to be taken as he may consider necessary to prevent the re- entry of such person on the premises without his permission.
3.2 It is therefore submitted that the Commissioner was expected to have acted in terms of Section 267 of the Act of 1949; however, the corporation has merely issued a notice dated 07.10.2022 which directs the person to remove the illegal construction. Further steps were taken with the help of the police protection, rendering the building unusable. It is submitted that such was not the action desired. The corporation ought to have demolished the building in such a manner that it could not have been reoccupied by the encroacher and also should have restricted the re-entry of the person in the common plot. It is submitted that the corporation has not acted in accordance with law and therefore, necessary directions deserves to be issued to the corporation.
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respondent corporation, at the outset submitted that pursuant to the order passed by this court in Special Civil Application no.9005 of 2022, that a notice was issued under the provisions of sub-section (2) of Section 260 of the Act of 1949, requiring the party to remove the illegal construction, failing which, the party was cautioned that the encroachment will be removed at his expenses. Since the encroachment was not removed, in compliance of the order, that steps were taken with the help of the police protection so also the concerned department dealing with encroachment and the building has been made non-usable. After taking the action, the same was communicated to the learned advocate on the panel. It is submitted that the respondent corporation has acted strictly in terms of the directions issued by this Court vide order dated 02.09.2022 and once the order was complied with in its true letter and spirit, it was incumbent upon the petitioner society to have taken further steps to see that there is no encroachment upon the common plot.
4.1 It is submitted that if the petitioner society is aggrieved by the encroachment by a private party in the common plot it would be purely a private dispute between the parties and for which, petitioner society can take recourse of the civil proceedings by filing a suit.
4.2 Reliance is placed on the judgment in the case of Sahajanand Flat Holder's Association v. Ahmedabad Municipal Corporation reported in 2012 SCC OnLine Guj 1748. It is submitted that in similar such circumstances, this Court, did not interfere with and confirmed the order passed by the learned single Judge wherein, the learned single Judge, has dismissed the writ petition on the ground that merely giving the dispute the colour of inaction on the part of the Page 4 of 9 Downloaded on : Sun Sep 17 02:07:46 IST 2023 NEUTRAL CITATION C/SCA/7054/2023 ORDER DATED: 22/08/2023 undefined concerned authorities, so as to bring the petition within the purview of Article 226 of the Constitution of India, would not be permissible. It has been held and observed that Article 226 of the Constitution of India is meant for exercising power which is in terms extraordinary and if the Courts starts exercising power at the instance of one party who has roped in the agency of the State under semblance of so called inaction on their part, such petition cannot be said to be a petition maintainable under Article 226 of the Constitution of India.
4.3 It is next submitted that assuming that the petitioner, is seeking direction allegedly on the ground that there is an inaction on the part of the respondent corporation, the grievance essentially is against the encroacher; however, the said person has not been made a party respondent and therefore, the petition, be dismissed also on the ground of non-joinder of the necessary party. It is therefore urged that the prayers prayed for in the petition, are misplaced and misconceived for, the corporation, has adhered to the directions issued by this Court and consequently has also taken action and thus, the captioned writ petition deserves to be dismissed without grant of any relief.
5. Heard the learned advocates appearing for the respective parties.
6. The captioned writ petition has been filed seeking direction to the respondent corporation to remove the illegal construction and also to get vacated the area of the common plot admeasuring 215.00 sq. mtrs. of the land belonging to the petitioner society. The petitioner since was aggrieved had preferred a writ petition before this Court with similar such prayer and considering the affidavit-in- reply of the Town Development Officer this Court, directed the Page 5 of 9 Downloaded on : Sun Sep 17 02:07:46 IST 2023 NEUTRAL CITATION C/SCA/7054/2023 ORDER DATED: 22/08/2023 undefined respondent corporation to act further in accordance with law, considering the material available on the record. Corporation was expected to discharge its duty in true spirit and within the stipulated period. Apropos which, the Town Development Officer of the Vadodara Municipal Corporation has issued a notice dated 07.10.2022 under the provisions of sub-section (2) of Section 260 of the Act of 1949 requiring the concerned party to remove the illegal construction, failing which, the corporation shall take steps for removal of the illegal construction. Since the notice issued was not complied with, that on 13.10.2022, the corporation with the help of police protection and concerned department dealing with the encroachment, has taken steps rendering the premises unusable.
7. The corporation, thereafter, has addressed a communication dated 14.10.2022 to the learned advocate on the panel, inter alia, stating that prior to the society coming into existence, the common plot in question was occupied by Shri Mehul T. Thakor and others by constructing houses. Since Shri Mehul T. Thakor had tried to remove the shed and started putting up the construction, it was objected to by the society. Besides, the corporation had also issued the notice under Section 267 of the Act of 1949 and in response to the notice, Shri Mehul T. Thakor had replied that the construction is 50 years old which, since was in a dilapidated condition that the repairing work was carried out. The letter further states that with the help of the police protection and the encroachment department, on 13.10.2022, the construction on the common plot has been made nonusable.
8. Considering the documents available on record and the communication by the corporation to the learned advocate, it appears that Shri Mehul T. Thakor against whom it is alleged that he Page 6 of 9 Downloaded on : Sun Sep 17 02:07:46 IST 2023 NEUTRAL CITATION C/SCA/7054/2023 ORDER DATED: 22/08/2023 undefined has encroached upon the land, was there over the land in question since last more than 50 years. The society claims that the common plot is of their ownership and all the members have equal right. That be so, the dispute appears to be of private in nature and if at all the society, feels that there is an encroachment over the common plot of the society, it can very well avail of the remedy by filing the suit and establish its right over the common plot so also the aspect of encroachment. But to come before this Court and to allege the inaction on the part of the Corporation would not be in the right earnest.
9. At this stage, the judgment of this Court in the case of Sahajanand Flat Holder's Association v. Ahmedabad Municipal Corporation (supra) would be worth referring to. Division Bench of this Court, did not interfere with the judgment of the learned single Judge and confirmed the same. Paragraph 2, reads thus:
"2. We have gone through the papers of petition along with civil application and affidavit-in-reply filed on behalf of respondent No. 4 by which several sale deeds have been produced by which the appellant and respondent No. 4 had purchased the part of property. Learned counsel for the respondent No. 4 has also produced photographs along with the affidavit-in-reply which shows that no fresh construction is carried out by the respondent No. 4 as alleged by the appellant. It appears from the photographs that the construction which has been alleged to have been made by the respondent No. 4 is of a compound wall, and from the documentary evidence, it appears that the compound wall is constructed since 1981. By way of present petition, the original petitioners prayed that the direction may be issued to the Corporation to take steps to remove the so- called encroachment of the common plot by respondent No. 4 on common open plot. The learned Single Judge has observed in para 2 which reads as under.
"Thus, essentially the dispute between the petitioner and respondent no. 4, if any, is sought to be given colour of inaction on the part of the concerned authorities so as to bring the petitioner within the purview of Article 226 of the Constitution of India. In my view, the petitioner who has not cared to mention Page 7 of 9 Downloaded on : Sun Sep 17 02:07:46 IST 2023 NEUTRAL CITATION C/SCA/7054/2023 ORDER DATED: 22/08/2023 undefined in the memo of the petition as to what is the nature of the petitioner association, could not have maintained the writ petition against respondent no. 4 on the spacious plea of inaction on the part of the authorities. Article 226 of the Constitution of India is meant for exercising power which is in terms "extraordinary" and if the Courts starts exercising power at the instance of one party who has roped in the agency of the State under semblance of so called inaction on their part, such petition cannot be said to be a petition maintainable under Article 226 of the Constitution of India. Article 226 of the Constitution is not meant for examining the nitty-gritty of fine rights existing between respondent no. 4 and the petitioner. Examination of plans, correctness of plans, examination of raja- chithy, correctness of raja-chithi would certainly not fall under the purview of the Courts jurisdiction. Courts rather would relegate party to the civil proceedings. In the instant case plain reading of the petition would imminently show that the petitioner has grievance only against respondent no. 4. Concerned authority has done its job by approving plan and, if somebody is deviating from the plan, it is always open to the concerned person who is aggrieved of the deviation to approach the Court, i.e. the civil court and establish his right qua the another deviating citizen, trust or institution. The authority if in such a case is called upon to act, then, the authority will assume the role of adjudication which is not essentially the role of the authority under the BPMC Act. The petition being hopelessly meritless deserves rejection and is accordingly rejected with cost."
10. Grievance is raised by the petitioner that the encroacher, had once again after undertaking repairing work, started residing in the same house. This according to the petitioner, ought not to have been permitted by the respondent corporation. According to the petitioner, the respondent corporation, ought to have removed the entire construction instead of rendering the house unusable. It is not that no action was taken; corporation did take action; however, again there appears to be an encroachment on the common plot. As claimed, the common plot is of the private ownership of the society thus, it is equally incumbent upon the society to protect the land of their ownership. The corporation has taken the action and it was thereafter for the society to have at least taken care to see that the so called encroacher is restrained from reentering the society.
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Grievance that the common plot has been encroached upon, would have the element of private dispute rather than inaction on the part of the corporation. Hence, this Court, is of the opinion that the dispute of such a nature, between the private parties cannot be decided in a writ petition.
11. Adverting to the aspect of non-joinder of the party, it is required to be noted that the prayer seeking direction to the corporation, would imply that any action taken would affect the party concerned; however, the learned advocate appearing for the petitioner when was asked about the consequences of the prayer, replied it by saying that as no relief is sought for against the private party he is not been joined. Also, the grievance of the petitioner is only as regards the corporation not taking action in conformity with the direction issued by this Court. Pertinently, the person who is likely to be affected has not been joined and therefore, the petition deserves to be dismissed on the ground of non-joinder of the necessary/proper party inasmuch as though the prayer of the petitioner is seeking direction to the respondent corporation, the said direction if were to be allowed; would definitely affect the person against whom, the action is sought to be taken. Therefore, the petition deserves to be dismissed on the ground of nonjoinder of necessary and/or proper party as well. Therefore, on all the counts, the petition deserves to be dismissed and is accordingly dismissed, leaving it open to the petitioner society to pursue the remedy available and as permissible in law. No order as to costs.
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 9 of 9 Downloaded on : Sun Sep 17 02:07:46 IST 2023