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2017 DIGILAW 1604 (GUJ)

Champaben Harilal Chheda v. Government of Gujarat

2017-09-05

RAJESH H.SHUKLA

body2017
JUDGMENT : RAJESH H. SHUKLA, J. 1. The present petition is filed by the petitioner under Article 226 of the Constitution of India as well as under Sections 37 and 109 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as “the Act”) for the prayer as prayed for in detail inter-alia that appropriate writ, order or direction may be issued to Respondent Nos. 1 and 2 to exercise such power and perform such duty as is neglected or failed to be exercised or performed by the Chief Executive Authority, Bhachau Area Development Authority, the Respondent No. 3. It is also prayed that the unauthorized structure or development of temporary nature may be removed from the said land of the petitioner bearing City Survey No. 2075 situated at Vondh Naka, City Bhachau, Taluka Bhachau, District Kachchh on the grounds stated in the memo of petition. 2. Heard Shri Ashwinkumar Harilal Shah, Power of Authority of the petitioner- Champaben Harilal Chheda, who is appearing as party-in-person and learned Advocate Shri Vijay H. Nangesh for Respondent No. 3 as well as learned AGP Ms. Jyoti Bhatt for the Respondent-State. 3. Shri Ashwinkumar Harilal Shah has stated that in 2011 it came to his notice that the encroachment and the unauthorized structure or the development has been made on the aforesaid land bearing City Survey No. 2075 situated at Vondh Naka, City Bhachau, Taluka Bhachau, District Kachchh belonging to the petitioner. He has stated that Section 37 read with Section 109 of the Act cast a duty upon the authority. He had approached the authority, but, as they have failed to remove the encroachment, he has filed the present petition. He has stated that the duty is of ministerial nature, and as no steps have been taken by the Respondent authorities, the present petition is filed. He has referred to Annexure-B and Annexure-D and other papers and submitted that the Bachau Development Authority has addressed a letter to the Bachau Municipality. 4. Shri Ashwinkumar Harilal Shah has submitted that as it is a failure in discharging and performance of duty by all the aforesaid Respondent authorities, the petition is filed and appropriate writ, order or direction may be issued. He has stated that no reply has been filed by the other side. 5. 4. Shri Ashwinkumar Harilal Shah has submitted that as it is a failure in discharging and performance of duty by all the aforesaid Respondent authorities, the petition is filed and appropriate writ, order or direction may be issued. He has stated that no reply has been filed by the other side. 5. Learned Advocate Shri Vijay H. Nangesh for Respondent No. 3 has referred to the background and submitted that there are some structures and shops but they have not been joined as a party in the petition who are required to be heard. Further, he has stated that the duty is in the nature of statutory duty and not for the private purpose, and therefore, if the details are given they may take necessary steps. However, it is for the petitioner to protect his own property. 6. It is required to be stated that as Shri Ashwinkumar Harilal Shah, who appears as party- in-person and who is coming from Mumbai, the matter which was kept yesterday has been kept today to accommodate him due to the leave-note of learned Advocate Shri Vijay H. Nangesh for Respondent No. 3. 7. The sum and substance of the submissions and the tenor of the petition is that the private property belonging to the petitioner bearing City Survey No. 2075 situated at Vondh Naka, City Bhachau, Taluka Bhachau, District Kachchh is encroached upon by someone which according to him came to the notice in the year 2011 or 2012 and thereafter he has requested or sent communications to the authorities for removal of such unauthorized construction or the development. As it transpires, the letter is addressed to the development authority whereas it was within the area of the municipality where the municipality would be concerned. The reliance placed by Shri Ashwinkumar Harilal Shah on the provisions of Section 37 read with Section 109 of the Act is totally misplaced and out of context. The interpretation of this provision cannot be made so as to cast obligation upon the Municipality or the development authority to protect the private properties. The reliance placed by Shri Ashwinkumar Harilal Shah on the provisions of Section 37 read with Section 109 of the Act is totally misplaced and out of context. The interpretation of this provision cannot be made so as to cast obligation upon the Municipality or the development authority to protect the private properties. The petitioner who claims to be the owner of the property is obliged to protect his own property before making a grievance about failure of the duty or failure in performance of duty or failure in performance of duty by the authority if the property is belonging to the petitioner which was within his right and interest to protect it properly by private measures. Not only that, even if some encroachment was sought to be made, steps could have been taken by filing a suitable complaint or civil suit. No such steps have been taken on the ground that he is residing in Mumbai. Thereafter also, there is nothing to suggest that the unauthorized development or the shops as stated by learned Advocate Shri Vijay H. Nangesh has come up with or without permission or authority and whether it is an encroachment or with permission. Again, even in this petition, the petitioner has not joined all such persons who are said to have made encroachment though the relief is asked indirectly for their removal. Thus, in the guise of the obligation or in the guise of failure of duty by the authority, what he is seeking is evacuation and vacation of the premises which may have been developed in the property of the petitioner, without factual data or the background as to how it has come, since when it has come, there is nothing on record. Therefore, all these issues could be considered, and if the petitioner is vigilant could have taken appropriate steps at appropriate time when he is saying that in 2011 it came to the notice but has not filed any civil suit nor any complaint before the police and has been corresponding with the authority. Therefore, all these issues could be considered, and if the petitioner is vigilant could have taken appropriate steps at appropriate time when he is saying that in 2011 it came to the notice but has not filed any civil suit nor any complaint before the police and has been corresponding with the authority. A useful reference can be made to the judgment of the Hon'ble Division Bench of the High Court in Letters Patent Appeal No. 47 of 2012 in Special Civil Application No. 17952 of 2011 dated 15.3.2012 wherein referring to the similar issue and the scope of exercise of discretion under Article 226 of the Constitution of India, it has been observed: “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. ..................... 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.” 8. Thus, the internal dispute between the two private parties cannot be converted into a kind of litigation labeling as failure in performance of duty by the authority. The petitioner having failed himself in taking proper care to protect his own property and even after it came to his knowledge about the so-called encroachment or unauthorized development has not taken the necessary steps as may be advised, and since, these are the issues which are required to be examined in civil court on proper examination of material and evidence, the discretionary jurisdiction under Article 226 cannot be exercised at the instance of the petitioner and the present petition therefore deserve to be dismissed and accordingly stands dismissed in limine.