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Gujarat High Court · body

2017 DIGILAW 1634 (GUJ)

Roshanben Abdulrazak Meman v. State of Gujarat

2017-09-12

RAJESH H.SHUKLA

body2017
ORDER : RAJESH H. SHUKLA, J. 1. The present Civil Application is filed by the applicant-original petitioner for the prayers as prayed for inter alia that the respondent no. 3 may be restrained from using the piece of land belonging to the applicant and the District Collector may seal the construction made by the Anand Nagarpalika of the pump room premises. 2. Heard learned advocate, Shri Girish Das for the applicant, learned AGP Shri Bhargav Pandya for the respondent nos. 1, 2 and 4 and learned advocate, Shri Japan Dave for the respondent no. 3. 3. Learned advocate, Shri Das referred to the papers and submitted that the construction of the pumping station has been made in the land of the applicant-petitioner. He tried to submitted that the Municipality is acting at the instance of one Ibrahim Abdulrahim Vora. He submitted that the said Ibrahim Vora is an influential person and, therefore, the officers of the Municipality are hand-in-glove. 4. Learned advocate, Shri Dave, however, referred to the affidavit-in-reply filed on behalf of the respondent-Nagarpalika and submitted that the submission about the construction of pumping station at the instance of one Ibrahim Vora, is misconceived. He submitted that as stated in the affidavit, the residence of Yadgar Society had given an application to the respondent-Nagarpalika for the borewell and, therefore, the proposal was accepted by passing Resolution No. 155, which was thereafter approved by the General Board. Learned advocate, Shri Dave submitted that after the work was started, as there was some difficulty in approaching the site, the members of other society i.e Milan Society came forward and they gave consent letter to dig out a borewell in common space of Milan Society in public interest. He, therefore, submitted that the applicant, who claims to be owner of the land in question, has not produced any evidence regarding the title or the ownership and in fact, forefather of the petitioner was the Chairman of the Milan Society and, therefore, the land was purchased by the Society and the forefather of the petitioner may have worked as a Chairman of the Society but it is not his personal property and entry has been mutated in the name of the Chairman of the Society, meaning thereby, the land is belonging to the society and not as an individual capacity. Learned advocate, Shri Dave has also referred to the consent given by the members of the Society and the Resolution passed by the Milan Society to support his submission. He, therefore, submitted that the present Civil Application is without any basis. Learned advocate, Shri Dave has also stated that when the petition was filed, same prayer was asked, which has not been granted and, therefore, the present Civil Application may not be entertained for similar prayer. 5. Learned AGP Shri Pandya has supported the submissions made by learned advocate, Shri Dave. 6. In view of the submissions and having regard to the facts as well as the record, it is evident that construction of the borewell and/or pumping station is made in the public interest at the instance of the residents of the locality. Therefore the submissions which have been made, cannot be accepted at the face value. In fact in the main petition, the applicant - original petitioner has asked for the prayers in a different form referring to Section 254 of the Gujarat Municipalities Act but has claimed similar relief that the respondent no. 3-Nagarpalika may be restrained from digging the borewell on the land of the applicant - original petitioner. Thus the applicant-petitioner has made claim without any semblance of title and interest in the land. The documents itself makes it clear that the forefather of the petitioner may have signed as a Chairman of the Society, meaning thereby, the land is belonging to the society and it was not in his individual capacity. Therefore when the residents of the Society made request to the Municipality in public interest, the construction of the borewell or pumping station has been made. 7. Affidavit in reply along with Annexures clearly support the submissions, which have been made by learned advocate, Shri Dave. Therefore, there is no reason or justification to grant interim relief or direction as prayed for. 8. Therefore, the present Civil Application deserves to be dismissed and accordingly stands dismissed.