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2009 DIGILAW 667 (GUJ)

BHANUSHALI KISHORBHAI PARUMAL v. STATE OF GUJARAT

2009-10-09

A.L.DAVE, K.A.PUJ

body2009
JUDGMENT HONOURABLE MR.JUSTICE K.A.PUJ 1. Since all these petitions involved a common issue and challenge in the petition is also common and since they are heard together, they are being disposed of by this common judgment and order. 2. Special Civil Application No.19236 of 2005 is filed by 95 persons and the petitioners have prayed for quashing and setting aside the order dated 21.09.2004 passed by the Collector, Banaskantha. The petitioners have also prayed for the declaration that they are flood affected persons and are not encroachers. They have further prayed for the direction to the respondent authorities to permit them to carry out their business without any hindrance or disturbance at their respective shops. Rule in this petition was issued on 21.09.2005 and it was directed to be heard with Special Civil Application No.7550 of 2004. 3. Special Civil Application No.19473 of 2005 is filed by 13 persons and more or less same prayers are made by the petitioners. This petition was admitted and rule was issued on 26.09.2005 and it was ordered to be heard along with Special Civil Application No.7550 of 2004. 4. Special Civil Application No.19660 of 2005 is filed by 8 persons and petitioners have made virtually same prayers in this petition. The petition was admitted and rule was issued on 27.09.2005 and it was ordered to be heard along with Special Civil Application No.7550 of 2004. 5. In Special Civil Application Nos. 5680 to 5686 of 2009, challenge to the order dated 21.09.2004 passed by the District Collector, Banaskantha is made at a belated stage and the petitioners have prayed for the direction to the respondent authorities to consider their case as they are similarly situated persons whose cases have already been considered and they have shown their willingness to abide by the terms and conditions as in those cases. All these petitions were directed to be heard along with Special Civil Application Nos.19236 of 2005, 19473 of 2005 and 19660 of 2005. 6. One of the main reasons which prompted the petitioners to file all these petitions before this Court is that one Mr. Jayantilal Varaiya had filed Special Civil Application No.7550 of 2004 treating it as Public Interest Litigation, praying for removal of encroachments from two public roads in Dhanera town, namely, (i) S.T. Road to Ganj Bazaar and (ii) S.T. Road to Railway station. Jayantilal Varaiya had filed Special Civil Application No.7550 of 2004 treating it as Public Interest Litigation, praying for removal of encroachments from two public roads in Dhanera town, namely, (i) S.T. Road to Ganj Bazaar and (ii) S.T. Road to Railway station. This Court vide its order dated 02.07.2004 passed in the said petition directed the Collector, Banaskantha to inquire into the matter and hear the encroachers, pass orders for removal of encroachers and file report in the Court. In pursuance of the said order, the Collector, Banaskantha, in or around July 2004, issued notices to the petitioners calling upon them to offer their explanation as to why they are not removed from their respective premises / shops treating them as encroachers. The petitioners have submitted their reply to the notice of the Collector stating therein that they are not the encroachers and are in legal possession of their shops and/or premises. The petitioners have also moved Civil Application No.5602 of 2004 in Special Civil Application No.7550 of 2004 for impleading them as party ? respondents and accordingly, they were joined as respondents in the said petition. The Collector, Banaskantha thereafter passed an order on 21.09.2004 treating them as encroachers and directing to remove them from their shops and/or premises. The said order of the Collector has not been implemented till this date, initially because of the pendency of Special Civil Application No.7550 of 2004 and thereafter either on the basis of the statement made on behalf of the respondent or because of the protection granted by this Court. 7. Mr. Y.N. Oza, learned Senior Counsel with Learned advocates Mr. Mehul Rathod with Mr. Ashish M. Dagli, Mr. Saurabh Mehta appeared on behalf of the petitioners in all these petitions. 8. Mr. Oza, tracing out the history in support of the petitioners' valid possession, has pointed out that in May 1976, the then Dhanera Gram Panchayat, framed a Scheme for allotting lands to the needy persons including the petitioners for petty business in Dhanera town at the place known as 'Trikoniya Baug'. This was, however, stayed by the T.D.O., Dhanera. However, D.D.O., Banaskantha set aside the order of the T.D.O. and confirmed the Resolution passed by the Gram Panchayat and allotments were made to more than 200 persons. This was, however, stayed by the T.D.O., Dhanera. However, D.D.O., Banaskantha set aside the order of the T.D.O. and confirmed the Resolution passed by the Gram Panchayat and allotments were made to more than 200 persons. In July 1977, due to heavy rain and flood, Dhanera town was affected and the petitioners as well as other residents of Dhanera town have suffered a lot. The State Government, therefore, framed a policy of rehabilitating those affected persons by allotting land on a permanent basis at Trikoniya Baug area for doing their business. On 10.08.1977, the Collector, Banaskantha prepared a list of affected persons and instructed the Panchayat to pass appropriate Resolution for allotting the plots for rehabilitating the affected persons. The then Dhanera Gram Panchayat accordingly, unanimously passed Resolution No.3 resolving to allot the plots to the affected persons. The Collector, Banaskantha thereafter passed an order on 30.01.1978 directing the then Gram Panchayat, Dhanera to allot Plot Nos.1 to 246 to the affected persons on the terms and conditions mentioned in the said order. Pursuant to the said order of the Collector, the then Dhanera Gram Panchayat passed a resolution No. 4 (1) unanimously resolving to allot the plots to the affected persons. The Sarpanch was authorized to take appropriate further action and the petitioners and other persons were allotted plots at Trikoniya Baug and since then, they are in possession. 9. Mr. Oza further submitted that even in the past, attempts were made to dispossess the petitioners from their respective plots and/or premises. Mamlatdar, Dhanera submitted a proposal for removing the petitioners and other rehabilitated persons from the Trikoniya market and sought for the Collector's order. The Collector vide his order dated 31.03.1983 directed the Mamlatdar to give instructions to the Sarpanch not to evict the persons who were allotted plots by Resolution dated 20.08.1977, till the formalities are over. Mr. Oza has further submitted that in 1985, the then Gram Panchayat again tried to remove certain persons who were allotted plots in the year 1978 and hence, some of the allottees have filed petitions before this Court being Special Civil Application No.4427, 4428 and 4123 of 1985. These petitions were allowed and by an order dated 29.06.1995, this Court restrained the respondents from removing the cabins / shops of the petitioners who were entitled to the protection under the order of the Collector dated 30.01.1978 and 31.03.1983. 10. Mr. These petitions were allowed and by an order dated 29.06.1995, this Court restrained the respondents from removing the cabins / shops of the petitioners who were entitled to the protection under the order of the Collector dated 30.01.1978 and 31.03.1983. 10. Mr. Oza has further submitted that again in 2001, some of the allottees were asked to remove their cabins / shops treating them as encroachers. Hence, they have filed Special Civil Application No.12039, 12040 and 12612 of 2001. By allowing these petitions, this Court restrained the respondent authorities from disturbing the possession of these allottees. 11. Mr. Oza has further submitted that again in 2004, Mr. Jayantilal Varaiya filed Special Civil Application No.7550 of 2004 and prayed for removal of encroachment from S.T. Road to Ganj Bazaar and S.T. Road to Railway station. He has further submitted that though this Court has directed the authorities to inquire about the encroachment made on the public road, the District Collector, Banaskantha without applying his mind to the records and without considering the direction of this Court in its proper perspective, has issued notices to almost all persons who are having their shops on the market road and the railway station road, including the present petitioners. Mr. Oza has further submitted that the Collector has grossly erred in not appreciating the fact that the petitioners are the flood affected persons who were allotted plots in the year 1978 on the basis of the policy of the State Government of rehabilitating the persons of Dhanera town who are affected by the flood of 1977 and since then, the petitioners are doing their petty business on the land allotted to them on a permanent basis and not causing any hindrance to the traffic or to the public at large. He has further submitted that the order passed by the Collector is also violative of Article 14 of the Constitution of India as equal treatment has not been given to the petitioners. In the same area and on the same roads, lands were allotted by the Collector to the influential persons who have converted those lands into a commercial complex and yet no such actions were initiated against them. On the contrary, their possession was regularized by the respondent authorities. Mr. In the same area and on the same roads, lands were allotted by the Collector to the influential persons who have converted those lands into a commercial complex and yet no such actions were initiated against them. On the contrary, their possession was regularized by the respondent authorities. Mr. Oza has pointed out several instances of such type and submitted that though they are on the same land, they are not sought to be removed by the Collector. The width of the road is maintained at 60 feet even today. There is no hindrance caused by the petitioners to the public or traffic at large and no authority has proposed or demarcated 100 feet wide road. Since the petitioners are not encroachers, even if road is to be widened, for that purpose, the land is to be acquired by the State Government or by the Municipality and appropriate procedure has to be followed. The petitioners cannot be removed under the guise of encroachers. He has, therefore, submitted that the order of the Collector is required to be quashed and set aside. 12. On behalf of Dhanera Municipality, Learned advocate Mr. Y. M. Thakkar appeared. An affidavit is filed by Chief Officer on behalf of the Municipality. Mr. Thakkar has submitted that the petitioners have encroached upon the land granted to the Nagarpalika vide Notification dated 30.04.2001 issued under Section 80 (2) of the Gujarat Municipalities Act, 1963. The land in question is specifically given for the purpose of widening the existing public road by the State Government. Since the land is occupied by the petitioners and other encroachers, the Nagarpalika could not undertake the work of widening of the road. The road in question needs to be developed with facilities like footpath, parking space, circles and other public utility as it is the main road of the town and it bears heavy traffic and it needs to be widened to avoid accidents. Mr. Thakkar has further submitted that the State Government vide Resolution dated 20.08.2008 decided to declare one Nagarpalika from each District as Model Nagarpalika to encourage that particular Nagarpalika for its better performance. Dhanera Nagarpalika is declared Model Nagarpalika vide letter dated 03.05.2008 issued by the District Collector and Government has allotted additional Rs.3 Crores by order dated 04.02.2009. Out of the additional amount of Rs.3 Crores, the Nagarpalika is duty bound to carry out plan developmental projects. Dhanera Nagarpalika is declared Model Nagarpalika vide letter dated 03.05.2008 issued by the District Collector and Government has allotted additional Rs.3 Crores by order dated 04.02.2009. Out of the additional amount of Rs.3 Crores, the Nagarpalika is duty bound to carry out plan developmental projects. The land in question is required for laying down road having all the facilities and will be known as Gaurav Path. As the land is occupied by the encroachers, existing road cannot be widened and the facilities cannot be provided on the said existing road. He has further submitted that the Collector vide his order dated 30.01.1978 permitted the flood affected persons to occupy the land in question to carry out their business activity by putting up cabins after obtaining necessary permission. Neither the permission was obtained nor the conditions laid down therein were fulfilled by the petitioners. The land in question was resumed by the State Government vide order passed by the Secretary (Appeals) on 21.11.1987 in revision preferred by the Gram Panchayat holding that the open land of Gamtal belongs to Dhanera Gram Panchayat and the land having encroachment belongs to the State Government. The Collector was directed to evict encroachers immediately by taking appropriate steps under Section 61 of the Bombay Land Revenue Code. The order passed by the Secretary in revision application on 21.11.1987 has become final and hence, the petitioners have no authority to occupy the said land as they are in unauthorized occupation of the land in question. In compliance with the order passed by the Additional Chief Secretary (Appeal), the Collector passed an order on 30.03.1989 directing the Superintendent of City Survey to take action under Section 61 of the Bombay Land Revenue Code. He has, therefore, submitted that the petitioners are in unauthorized occupation of the land and the encroachments made by them are required to be removed for developing and widening the main road of the city as Gaurav Path having facilities like foot path, parking space, traffic circles and other public utility. 13. On behalf of the State Government, Mr. Umesh Trivedi, learned Assistant Government Pleader appears and he has submitted that the petitioners are encroachers and at no point of time, the title to the land in question was conferred upon the petitioners. The Resolutions were passed with certain conditions which have not been fulfilled and hence, proposals were never finalized. 13. On behalf of the State Government, Mr. Umesh Trivedi, learned Assistant Government Pleader appears and he has submitted that the petitioners are encroachers and at no point of time, the title to the land in question was conferred upon the petitioners. The Resolutions were passed with certain conditions which have not been fulfilled and hence, proposals were never finalized. He has further submitted that the shops and premises of some of the occupants were regularized under compulsion. However, the petitioners cannot take shelter of such facts as they were never in valid possession. Even for the purpose of widening of the road, even the possession of those persons who were granted the land and their possession was regularized, can be taken back by the authorities after following due procedure of law. Since the petitioners are encroachers, they cannot insist that they should not be disturbed. He has, therefore, submitted that all these petitions are required to be dismissed as there is no substance or merit in these petitions. 14. Having heard the learned counsels appearing for the parties and having carefully considered their rival submissions, in light of the previous orders passed by the authorities as well as this Court from time to time, and after having gone through the impugned order is passed by the Collector dated 21.09.2004, we are of the view that the impugned order is passed by the Collector pursuant to the interim directions issued by the Division Bench of this Court on 02.07.2004 in Special Civil Application No.7550 of 2004. Before filing the present petitions, the petitioners have challenged the said order by seeking impleadment as party respondents in the said petition and they were in fact impleaded as party ? respondents in the said petition. The said petition was disposed of by the Division Bench on 4.3.2009. While disposing of the said petition, the Division Bench has observed that this public interest litigation has been filed pointing out some encroachment made on the side of the public roads in the Dhanera Municipality. The Collector made detailed inquiry and submitted his report on 21.9.2004. The Court, therefore, observed that no further order in this public interest litigation is required and the same was accordingly disposed of. The present petitions which were tagged with the said Special Civil Application were ordered to be placed before the appropriate Bench. The Collector made detailed inquiry and submitted his report on 21.9.2004. The Court, therefore, observed that no further order in this public interest litigation is required and the same was accordingly disposed of. The present petitions which were tagged with the said Special Civil Application were ordered to be placed before the appropriate Bench. In this background of the matter, an argument was raised by Mr. Thakkar, learned advocate appearing for Dhanera Municipality that the present petitions are to be held as non-maintainable on the ground of principle of res-judicata by virtue of the provisions contained in Section-11 read with Explanations (iv) and (vi) of the Civil Procedure Code. It is true that the petitioners have challenged the order of the Collector in the said petition. At the same time, the petitioners have filed separate petitions and they are tagged with the said Special Civil Application No.7550 of 2004. While disposing of the said petition, the Court has not gone into the legality, validity and correctness of the order passed by the Collector, possibly in view of the fact that separate petitions challenging the said order were filed by the petitioners and they were directed to be placed before the appropriate Bench. It is, therefore, not just and proper for us to dismiss all these petitions only on the ground that they are barred by principle of res-judicata. 15. The issues raised by the petitioners will have to be considered and decided on their own merits. Main substance of the argument of Mr. Oza is that the petitioners are occupying the shops / premises for the last many years and they are flood affected persons and the shops / premises were allotted to them by Dhanera Gram Panchayat and the Collector has also passed an order to that effect. Even in view of the earlier orders passed by the Court, the petitioners were not to be dispossessed treating them as encroachers. If we consider this submission of Mr. Oza, it appears to us that Resolution No.3 passed by Dhanera Gram Panchayat on 20.8.1977 does not confer any title or any ownership right on the petitioners. It was simply a proposal to be made to the Collector. If we consider this submission of Mr. Oza, it appears to us that Resolution No.3 passed by Dhanera Gram Panchayat on 20.8.1977 does not confer any title or any ownership right on the petitioners. It was simply a proposal to be made to the Collector. It is specifically referred to in the Resolution that the Collector may be requested to consider the proposal to allot the land to flood affected persons either at the triangular Baug area or from that triangular Baug area to market-yard. From the order passed by the Collector on 30.1.1978, it is clearly revealed that the Collector was not in favour of allotting this land to the flood affected persons. The Collector, therefore, observed that if the persons are allowed to put their cabins at their free will or they put on unauthorized construction, the same is not only illegal but it creates an obstacle in the development of the town. The Collector has, therefore, opined that these flood affected persons should be allotted land at the place where the water stream is passing through. Even while doing so the Collector has put certain conditions, namely, such persons should make use of the land for themselves and without the prior permission of the Collector they would not be allowed to construct, mortgage, sell or gift away the said land. Even the construction was also required to be made after obtaining proper permission of the Panchayat and as per the rules and regulations framed by the Panchayat. It is also made clear in the order that if any of the condition is violated the grant would be liable to be cancelled. As per the schedule attached with that order, further conditions were also imposed. If these persons were legally occupying shops / premises, they have to pay the price as determined by the Dy. Town Planner and if they were in unauthorized occupation, in that case they have to pay the price with penalty. It is also made clear that if the persons, who were not carrying on the business in the said area and who were not affected by the flood, their names would not be included. Town Planner and if they were in unauthorized occupation, in that case they have to pay the price with penalty. It is also made clear that if the persons, who were not carrying on the business in the said area and who were not affected by the flood, their names would not be included. The Collector has also made it clear that for allotment of plots, a committee consisting of the President of Taluka Panchayat, Taluka Development Officer, Dhanera, Sarpanch, Dhanera and Mamlatdar, Dhanera would be formed and they will take decision in the matter. It appears that till 1983, no decision was taken by the Committee and hence the Collector passed further order on 31.3.1983 directing the Mamlatdar, Dhanera that those persons who were entitled to the possession of the plots as per the Resolution of the Panchayat dated 20.8.1977 should be given the same plot and if any other person was in possession, proposal for regularization may be submitted and until the decision was taken such person should not be evicted. 16. It is true that some of the allottees have filed petitions before this Court in 1985 seeking direction to the Panchayat to allot the plots of the land to the petitioners on permanent basis. Those petitions were disposed of on 29.6.1995 directing the Nagar Panchayat not to remove the cabins of such petitioners who are entitled to protection under orders of the Collector dated 30.1.1978 and 31.3.1983 so long as these orders of the Collector remain operative. 17. It is very unfortunate that when the above petition was disposed of on 29.6.1995 subsequent order passed by the Collector and other authorities were not pointed out and in fact on that day, the orders dated 30.1.1978 and 31.3.1983 were not in operation. Since the Committee constituted for allotment of the plots to the affected persons at the time of flood had not taken any decision, on the basis of Resolution dated 7.6.1985 of Gram Panchayat, Dhanera the Collector, Banaskantha vide his order dated 3.7.1985 passed an order to vest the said land in government without any compensation from Gram Panchayat and also disposed of the land to the cabin holders on permanent basis and directed to to maintain status quo till procedure of handing over land is not completed. The Gram Panchayat, Dhanera filed a Revision Application before Special Secretary (Appeals) Ahmedabad against this order and the Secretary (Appeals) vide his order dated 21.11.1987 directed to hand over the plot of gamtal to the Gram Panchayat, Dhanera and the plots on which encroachment was made were declared to be the property of the Government. The Collector was directed to take action under Section 61 of the Bombay Land Revenue Code for removal of the encroachment. Pursuant to the said order the Collector passed an order on 30.3.1989 vacating the order of status quo and directing the City Survey Superintendent, Dhanera to initiate action under Section 61 of the Bombay Land Revenue Code. In this view of the matter, the petitioners cannot take shelter of the earlier orders passed by this Court on 9.6.1995 and 21.12.2001. 18. Despite our repeated inquiry from Mr.Oza as to whether the petitioners are having any title or document in support of their claim that they are in legal or legitimate possession of the shops/premises in question, no document whatsoever was produced by any of the petitioners. Simply because they were in possession, it cannot be said that their possession was a lawful possession. They are encroachers all through out and as per the direction of this Court in the matter of public interest litigation, the Collector has rightly passed the order considering the case of each of such encroachers and held that they are encroachers of land occupied by them and the said land is required for the purpose of widening the road and to create other facilities for the people at large of Dhanera town. Simply because some persons were allotted land and their possession was regularized, the petitioners cannot claim any parity on that basis. The Apex Court in the case of M/s. Vishal Properties Pvt. Ltd. Vs. State of U.P. & Ors, reported in 2007 AIR SCW 6540 held that an order made in favour of persons in violation of prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities. Simply because the Municipality or the Government agency has committed some mistakes the Court cannot issue direction that the said mistakes be perpetuated on the ground of discrimination or hardship. A judicial forum cannot be used to perpetuate the illegalities. Simply because the Municipality or the Government agency has committed some mistakes the Court cannot issue direction that the said mistakes be perpetuated on the ground of discrimination or hardship. Any action/order contrary to law does not confer any right upon any person for similar treatment. 19. In the above view of the matter, the order passed by the Collector pursuant to the interim direction issued by this Court in earlier petition does not call for any interference while exercising writ jurisdiction under Article 226 of the Constitution of India. Since the petitioners are encroachers and they are not legally occupying the shops/premises in question, they are required to be evicted. The authorities are, therefore, directed to act as per the order passed by the Collector. The respondent authorities may act promptly on the basis of this order and any relief granted by the lower Court in favour of the petitioners in different suits pending, stands vacated and the authorities are permitted to proceed further for implementing the act of widening of the road. 20. Subject to the aforesaid directions, all these petitions are dismissed. Rule is discharged. Interim relief granted earlier stands vacated. No order as to costs. 21. A request is made on behalf of the petitioners to protect the petitioners by continuing the stay that is operating in their favour, for a further period of eight weeks. 22. The request is opposed by the other side. 23. In light of the fact that the petitioners are in occupation of the place for a long period and Diwali festivals are approaching, the request is partially accepted, and the stay, which is operating in favour of the petitioners, is continued for six weeks.