Santoshbhai Naginbhai Jaiswal vs Vadodara Municipal Corporation on 6 October, 2020

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Gujarat High Court

Santoshbhai Naginbhai Jaiswal vs Vadodara Municipal Corporation on 6 October, 2020

Bench: Bhargav D. Karia

        C/SCA/12118/2020                                       ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 12118 of 2020

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                  SANTOSHBHAI NAGINBHAI JAISWAL
                              Versus
                 VADODARA MUNICIPAL CORPORATION
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Appearance:
KUSHAL A DESAI(9435) for the Petitioner Nos. 1, 2, 3
MR SP MAJMUDAR(3456) for the Petitioner Nos. 1, 2, 3
for the Respondent Nos. 1, 2
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 06/10/2020

                                 ORAL ORDER

1. Heard learned advocate Mr.Nishit Gandhi appearing on behalf of learned advocate Mr. S.P. Majmudar for the petitioners through video conference.

2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :

(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 holding and declaring that the action of the respondentCorporation in demolishing the complex viz. "New Belbaug Shopping Center" (where the shops of the petitioners were situated) is contrary to law and in violation of the Gujarat Provincial Municipal Corporation Act, 1949;

(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of Page 1 of 8 Downloaded on : Mon Mar 01 14:00:40 IST 2021 C/SCA/12118/2020 ORDER mandamus or any other appropriate writ, order or directions directing respondent No.1 to allot the alternative place to the petitioners in the Jan Mahal, which is constructed where New Belbaug Shopping Center was situated, (which was illegal demolished by the respondentCorporation), as per the representations made by the petitioners (at ANNEXUREC (Colly.) hereto);

(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 quashing and setting aside the impugned orders dated 16.11.2019 passed by the respondentCorporation in case of petitioners (at ANNEXUREE (Colly.) hereto);

(D) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to direct respondent No.1 to allot the alternative place to the petitioners in the Jan Mahal, which is constructed where New Belbaug Shopping Center was situated, (which was illegal demolished by the respondent Corporation), as per the representations made by the petitioners (at ANNEXUREC) (Colly.) hereto);

(E) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;

3. The brief facts of the case of the petitioners are as under : 3.1. The petitioners were occupying shops No.B 22, G22 and G24 in the New Belbaug Shopping Center, Opp. Vadodara Railway Station, Vadodara, since number of years. It is the case of the petitioners that the respondent Corporation is also collecting taxes from the petitioners and they were earning their livelihood by doing their respective business.

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3.2. It is the case of the petitioners that in absolutely illegal manner, the aforesaid New Belbaug Shopping Center was demolished by the respondentCorporation for the construction of "Jan Mahal" project in the year 2017 and the respondentCorporation had demolished the building on the ground that it wants to become Vadodara as a "Smart City". It is the case of the petitioners that they were not heard before demolishing the said building.

3.3. It is the case of the petitioners that now the respondentCorporation has entered into a Public Private Partnership (PPP) agreement with respondent No.2 and respondent No.2 constructed Jan Mahal Project in PPP with respondent No.1.

3.4. The petitioners have made representations from time to time, wherein the petitioners have pointed out that the petitioners should be given alternative place in the said Jan Mahal Project. Ultimately, some of the original allottees have been accommodated in the said Jan Mahal Project and, therefore, the petitioners have made representation seeking allotment of alternative place in the said project. However, none of such representations have been decided by the respondent Corporation.

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3.5. The petitioners earlier filed Special Civil Application No.12765 of 2019 before this Court, which came to be disposed of vide order dated 26.07.2019 with a direction to the respondentCorporation to decide the representation of the petitioners.

3.6. The respondentCorporation passed orders dated 16.11.2019 in case of each of the petitioners stating that the petitioners cannot be given place at "Jan Mahal" project, however, it was stated in the said order that they would be accommodated elsewhere in "Chief Minister Aavas Yojna".

4. Learned advocate Mr.Gandhi appearing for learned advocate Mr.Majmudar submitted that the respondent authority has passed the impugned order by rejecting the representation of the petitioners without application of mind as the petitioners prayed for allotment of the shops near the place where their original shops were situated.

5. It was submitted by Mr.Gandhi that as per the provisions of the Gujarat Provincial Municipal Corporation Act, 1949 (For short "the GPMC Act"), the petitioners are entitled to get alternative land near their shops, which were occupied by them in New Belbaug Shopping Center, opposite Vadodara Railway Station and the shops which are being offered to the petitioners are 10 kilometers away from their Page 4 of 8 Downloaded on : Mon Mar 01 14:00:40 IST 2021 C/SCA/12118/2020 ORDER erstwhile shops, which are already demolished so as to redevelop the area of the Vadodara in the Smart City Project.

6. Mr.Gandhi would submit that such demolition is done with a view to help the respondent no.2 and it is malafide. It was therefore, pointedout that though the petitioners made representation for the allotment of the place in the new project, which is being constructed over the place where the shops of the petitioners were situated, however, the same was not considered by the respondentCorporation and the petitioners have been asked to apply for the shops with price fixed by the corporation after giving set up of the valuation of the shops, which were demolished. Thus, according to Mr.Gandhi, there is violation of Articles 14 , 19(1)(g) and 21 of the Constitution of India.

7. It was also submitted by Mr.Gandhi that in view of the peculiar facts and circumstances of the case the order dated 16th November 2019 passed by the respondentcorporation is required to be quashed and set aside, as such order is in violation of the provisions of the GPMC Act, as well as the Constitution of India.

8. Having considered the submissions made by learned advocate Mr.Gandhi for the petitioners, it appears that the respondent - Corporation has passed a speaking order dated 16th November 2019 pursuant to Page 5 of 8 Downloaded on : Mon Mar 01 14:00:40 IST 2021 C/SCA/12118/2020 ORDER the order dated 26th July 2019 passed by this Court (Coram : Hon'ble Mr.Justice A.J.Desai) in Special Civil Application no.12765 of 2019, wherein the petitioners have raised the similar prayers as raised in this petition. The said order dated 26th July 2019 passed in Special Civil Application no.12765 of 2019 reads as under : "1. By way of present petition filed under Articles 14 , 19(1)(g), 21 and 226 of the Constitution of India, the following prayers have been made:

"[A] Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding and declaring that the action of the respondent - Corporation in demolishing the complex viz. "New Belbaug Shopping Center" (where the shops of the petitioners were situated) is contrary to the law and in violation of the Gujarat Provincial Municipal Corporation Act, 1949;

[B] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus of any other appropriate writ, order or direction directing respondent no. 1 to allot the alternative place to the petitioners in the Jan Mahal, which is constructed where new Belbaug Shopping Center was situated ( which was illegal demolished by the respondent Corporation), as per the representations made by the petitioners (at Annexure - G Colly hereto);

[C] During pendency and final disposal of the present application, Your Lordships may be pleased to direct the respondent No. 1 to allot the alternative place to the petitioners in the Jan Mahal, which is constructed where new Belbaug Shopping Center was situated ( which was illegal demolished by the respondent Corporation), as per the representations made by the petitioners (at Annexure - G Colly hereto);

[D] Pass any such other and / or further orders that may be thought just and proper, in the facts and circumstances of the present case."

2. Having heard learned advocate appearing for the petitioner and considering the averment made Page 6 of 8 Downloaded on : Mon Mar 01 14:00:40 IST 2021 C/SCA/12118/2020 ORDER in the petition, I am of the opinion that the following order would meet the end of justice;

[i] The Commissioner, Vadodara Municipal Corporation is hereby directed to consider the representations made by the petitioners as early as possible preferably within a period of three months from the date of receipt of this order and in accordance with law.

3. With the above direction, present petition stands disposed of. Direct service is permitted."

9. The respondentCorporation in view of the aforesaid order has considered the representation made by the petitioners as this Court did not thought it fit to grant prayers A and B in Special Civil Application no.12765 of 2019 and directed the respondent-Corporation to consider the representation made by the petitioners. Accordingly, a speaking order is passed by the respondentCorporation after considering the submissions made by the petitioners and the facts on the record holding that by Resolution no.89 dated 20th September 2017, it was resolved by the Vadodara Municipal Corporation to allot alternative place to the affected persons of New Belbaug Shopping Center, near the Railway Station in the shops situated at Mukhyamantri Avas Yojna by granting them preference in the auction for allotment of the shops. It was also resolved in the said resolution that the affected applicants shall have to pay the balance amount of the consideration after deducting the valuation of the demolished shop from the valuation of the shops, which is to be allotted and such consideration has to be paid in 60 monthly installments. It was also recorded in the impugned Page 7 of 8 Downloaded on : Mon Mar 01 14:00:40 IST 2021 C/SCA/12118/2020 ORDER order dated 16th November, 2019 that the petitioners are required to make application in 10 different Mukhyamantri Avas Yojna Schemes for allotment of the shops with particulars as per the Resolution no.89 dated 20th September 2017.

10. It is pertinent to note that the petitioners have not challenged the Resolution no.89 dated 20th September 2017 and therefore, such resolution is binding upon the petitioners. The petitioners are therefore, required to apply for allotment of the shops as per the said Resolution no.89 dated 20th September 2017.

11. In view of the above facts, there is no infirmity in the impugned order dated 16th November 2019 and the prayers A and B cannot be granted as the same were not considered by this Court earlier in Special Civil Application no.12765 of 2019.

12. Hence, the petition being devoid of any merit, is hereby dismissed.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR/PRADHYUMAN Page 8 of 8 Downloaded on : Mon Mar 01 14:00:40 IST 2021

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