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2017 DIGILAW 1483 (GUJ)

Sabera Mohammadhanif Madari v. State of Gujarat

2017-09-01

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2017
ORDER : R. SUBHASH REDDY, J. 1. This Letters Patent Appeal is filed under clause 15 by the original petitioner in Special Civil Application. Special Civil Application is filed with prayers with reads as under:— “8(A) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, declaring the action of the respondents of demolishing the residential property bearing Municipal House No. 1/634.CD situated on Revenue Survey No. 867/2 at Godhra, being highhanded, without authority of law, unconstitutional and violative of Articles 14, 9, 21 and 300-A of the Constitution of India. (B) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing the respondents to reconstruct a residential house of the same measurement on the land bearing Survey No. 867/2 at their costs and expenses. (C) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, holding all the respondents jointly and severally liable to compensate the petitioner for depriving her of the property without the procedure established by law and for their highhanded, unlawful and mala fide action and be pleased to direct the respondents to pay Rs. 5 lakh to the petitioner as an ad hoc compensation in public law remedy jurisdiction. (D) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing the respondent no. 1 to take appropriate legal action against the erring officers who are guilty of demolishing the property of the petitioner without the procedure established by law with mala fide intention and in highhanded manner and submit the action report to this Hon'ble Court. (E) Pending admission, hearing and final disposal of the petition, the respondents may be directed at their own costs and expenses to provide a residential accommodation and to safeguard the life and liberty of the petitioner and her family members. (F) Pending admission, hearing and final disposal of the petition this Hon'ble may be pleased to appoint an inquiry committee to examine the complaint of the petitioner and to suggest appropriate legal action to be taken against the erring officers of respondent no. 3 and 4. (G) Ad interim relief in terms of (E) and (F) may be granted. (H) Pass such other and further order as the Hon'ble Court deems fit and proper.” 2. 3 and 4. (G) Ad interim relief in terms of (E) and (F) may be granted. (H) Pass such other and further order as the Hon'ble Court deems fit and proper.” 2. The original petitioner claims that he has purchased land bearing survey No. 867/2 situated at Village & Taluka Godhra ad-measuring 60 sq.mtrs It is further stated that after purchase of the land, name was entered in the revenue record. It was also his case that residential house was in existence on the said land. Consequent to earthquake and passage of time, the house required some repair and renovation. It is the case of the original petitioner that abruptly, respondent no. 3 and 4 demolished the residential house of the petitioner and against that same was constructed on public road. 3. In view of factual disputes, which arise for consideration, the learned Single Judge has dismissed the petition by order dated 08.08.2016 In this appeal, it is contended by learned Counsel for the original petitioner that respondent no. 3 and 4 have demolished house based on the entry made in the revenue record which is subsequently clarified by the authorities. In view of wrong entry made earlier, demolition was made and the land in question is not covered by road. When the original petitioner purchased the land there was some construction. 4. During the course of hearing, the learned advocate for the original petitioner submitted that in view of factual dispute, liberty may be granted to approach the Civil Court for appropriate relief and also to grant the permission to apply to the competent authority for grant of construction on the land which was purchased by the original petitioner by registered sale deed. 5. As the learned advocate has not pressed for adjudication of the validity of the order passed by the learned Single Judge, in view of request made, without interfering with the order passed by the learned Single Judge, we dispose this appeal granting liberty to the original petitioner to approach Civil Court to establish right or for any other relief. We also grant liberty to the original petitioner to make application to the competent authority for construction permission on the land. If such an application is made, it is open for the authorities concerned to examine as to whether the land on which the original petitioner is claiming ownership rights, is covered by road or not. We also grant liberty to the original petitioner to make application to the competent authority for construction permission on the land. If such an application is made, it is open for the authorities concerned to examine as to whether the land on which the original petitioner is claiming ownership rights, is covered by road or not. As we are not examining such an issue in the present appeal, it is also open for the concerned authorities to consider such issue whenever application is made for the construction permission. 6. Subject to above liberty and permission, the Letters Patent Appeal and Civil Application stand disposed of. 7. It is needless to observe that all the questions are kept open for adjudication on merits, if the original petitioner files Civil Suit before the competent Civil Court.