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Gujarat High Court · body

2019 DIGILAW 182 (GUJ)

Bilalbhai Nurbhai Ajmeri v. State of Gujarat

2019-03-01

A.J.DESAI

body2019
JUDGMENT : A.J. Desai, J. By way of the present petitions under Articles 14, 21, 226 and 227 of the Constitution of India, the petitioners shop and/or cabin holders of Bilimora town have prayed to quash and set aside notices dated 31.3.2018 issued to the petitioners by Chief Officer, Bilimora Municipality respondent No.3 herein directing the petitioners to vacate their respective shops/cabins situated on Sardar Vallabhbhai Patel Road, Bilimora. The petitioners have also prayed for a direction to the respondents not to take any action including issuance of notices to the petitioner until Town Vending Committee is constituted as contemplated under Section 3 of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Central Act No.7 of 2014) and the process is carried out as per the scheme of the Act. 2. Pursuant to the notice issued by this Court, the respondent Nos.2 and 3 Bilimora Municipality has filed affidavitin-reply and opposed grant of relief. However, the State authorities have not filed any affidavit-in-reply. At the time of issuance of notice, the parties were directed to maintain statusquo. 3. It is the case of the petitioners that the shops/cabins in question were auctioned by Bilimora Municipality in the years 1988 to 1992 93 and the same were purchased either by the petitioners or their predecessors. The auction price and thereafter transfer fee as fixed by Bilimora Municipality for each shop was paid and accordingly, the petitioners were handed over possession of their respective shops/cabins by Bilimora Municipality. 4. The petitioners received impugned notices dated 31.3.2018 issued at the instance of Chief Officer, Bilimora Municipality asking the petitioners to hand over the possession of the shops/cabins as if the petitioners have encroached upon the land and are carrying on business without any permission granted by Bilimora Municipality, on the ground that the State Government intends to construct a Railway over-bridge to ease the traffic which is passing through Bilimora town. 5. Hence these petitions by the shop/cabin holders. 6. Mr. B.M. Mangukiya and Mr. C.B. Dastoor, learned advocates appearing for the shop/cabin holders - petitioners in respective petitions would submit that the petitioners are in possession of their cabins/shops since last number of years and are carrying on business with the permission of Bilimora Municipality. 5. Hence these petitions by the shop/cabin holders. 6. Mr. B.M. Mangukiya and Mr. C.B. Dastoor, learned advocates appearing for the shop/cabin holders - petitioners in respective petitions would submit that the petitioners are in possession of their cabins/shops since last number of years and are carrying on business with the permission of Bilimora Municipality. The petitioners and/or their predecessor had paid highest price for the shops/cabins constructed by Bilimora Municipality itself and accordingly, huge amount was paid by the petitioners to Bilimora Municipality. He would also submit that the petitioners are also paying monthly rent decided by Bilimora Municipality. Therefore, the impugned notices issued are contrary to the provisions of the Act. He would further submit that the petitioners are not the encroachers upon the land. Furthermore, the Chief Officer of Bilimora Municipality while issuing the impugned notices dated 31.3.2018 has not disclosed as to under which provision of law, such notices are issued. 7. By taking me through the documentary evidence, Mr. Mangukiya and Mr. Dastoor would submit that though the petitioners had paid huge amount, in place at which the shops/cabins are situated, the Bilimora Municipality has offered alternative land where there are no shops and the same is an open land and that too at a distant place where the petitioners are not able to carry on their business. He, therefore, would submit that the petitions be allowed. 8. On the other hand, Mr. Kaushal D. Pandya, learned advocate appearing for the respondent Nos.2 and 3 - Bilimora Municipality by taking me through the affidavit-in-reply would submit that the possession of the shops are an imminent need of the town since there is heavy traffic passing through the area upon which the shops/cabins are in existence. He would further submit that huge amount has been invested by the State authorities for constructing a railway over-bridge and for carrying out the construction of the same, only some part is required to be vacated. The shops are, therefore, required to be demolished. He would further submit that the alternate land offered by Bilimora Municipality to the petitioners is near to the existing shops/cabins of the petitioners and at that place, the petitioners can carry on their business. He, therefore, would submit that the petition be dismissed. 9. Mr. The shops are, therefore, required to be demolished. He would further submit that the alternate land offered by Bilimora Municipality to the petitioners is near to the existing shops/cabins of the petitioners and at that place, the petitioners can carry on their business. He, therefore, would submit that the petition be dismissed. 9. Mr. J.K. Shah, learned Assistant Government Pleader appearing for the respondent Nos.1 and 4 has opposed these petitions and would submit that the petitions be dismissed. However, no affidavit-in-reply has been filed on behalf of State authorities. 10. I have heard learned advocates appearing for the respective parties and perused the documents annexed along with the petitions. It is an undisputed fact that on the land in question, shops/cabins were constructed and the same were auctioned by Bilimora Municipality in the year 1988 to 1992 93 and the persons who have offered highest price, the same were allotted to them. Thereafter, some shop owners have also transferred the ownership rights and necessary transfer fees have also been paid to Bilimora Municipality. Therefore, prima facie, the allegation levelled in the impugned notices dated 31.3.2018 that the petitioners have illegally encroached upon the land in question cannot be accepted. Even the impugned notices does not disclose as to under which provisions of law the same are issued. It is also pertinent to note that before issuing the impugned notices dated 31.3.2018 which are in the nature of order, none of the petitioners were heard and hence, only on this ground, the present petitions require consideration. 11. Though several contentions have been raised by both the parties, the same have not been dealt with in view of the above observation. 12. Accordingly, these petitions stand allowed. The impugned notices/orders dated 31.3.2018 issued by Chief Officer, Bilimora Municipality to the petitioners are hereby quashed and set aside. It would be open for Bilimora Municipality to issue fresh notices to each of the shop/cabin holders in accordance with law. Upon issuance of such notices, the shop/cabin holders are hereby directed to select three persons out of them and/or a lawyer be engaged on their behalf to represent, lead and defend their case before Bilimora Municipality. They may file their reply to the fresh notices that may be issued by Bilimora Municipality within a period of three weeks from the date of service of the notice on each of the shop/cabin holders. They may file their reply to the fresh notices that may be issued by Bilimora Municipality within a period of three weeks from the date of service of the notice on each of the shop/cabin holders. The Bilimora Municipality, after giving an opportunity of hearing to three persons nominated by shop/cabin holders and/or a lawyer engaged by them and after examining the material produced on record, shall pass a reasoned order in accordance with law. If the said three persons and/or a lawyer as engaged by the shop/cabin holders do not cooperate for early disposal of the dispute, it would be open for Bilimora Municipality to proceed in accordance with law. If the decision that may be passed by Bilimora Municipality is adverse to the petitioners, the same shall not be implemented for a period of two weeks thereafter. The Bilimora Municipality is hereby directed to serve the decision on those three persons and/or a lawyer as engaged by the shop/cabin holders, on behalf of all the shop/cabin holders. 13. In view of disposal of main Special Civil Applications, the connected Civil Applications filed by Bilimora Municipality do not survive and they are accordingly disposed of. Direct service is permitted.