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Gujarat High Court · body

2022 DIGILAW 1783 (GUJ)

Samirabanu Varisali Maniyar v. State of Gujarat

2022-12-16

A.P.THAKER

body2022
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have sought for the following reliefs:- “A) Your Lordships may be pleased to admit and allow this Petition; B) Your Lordships may be pleased to issue a writ of Certiorari or writ in the nature of Certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside both the impugned order dated. 11/02/2022 passed by the Commissioner, Municipality Administration State of Gujarat, Gandhinagar, produced at ANNEXURE-A and the impugned order dated 5/1/2021 passed by the Reginal Commissioner, Municipalities, Vadodara, produced ANNEXUREB, cancelling the at Resolution No. 17/15, 17/16 dated 10/6/2020 and Resolution No. 23 passed by the Karjan Nagar Palika and the Notices dated. 18/02/2021 and Notices Dated. 17/2/2022 issued by the Karjan Nagar Palika to both the Petitioners produced Collectively at ANNEXUREC, as being illegal, arbitrary, erroneous, and against the settled provisions of law. C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of both the impugned order dated 11/2/2022 passed by the Ld. Commissioner, Municipality Administration State of Gujarat, Gandhinagar, produced at ANNEXURE-A and the impugned order dated 5/1/2021 passed by the Reginal Vadodara, produced cancelling the at ANNEXURE-B, Resolution No. 17/15, 17/16 dated 10/6/2020 and Resolution No. 23 passed by the Karjan Nagar Palika and the Notices dated. 18/02/2021 and Notices Dated. 17/2/2022 issued by the Karjan Nagar Palika to both the Petitioners produced Collectively at ANNEXUREC as being illegal, arbitrary, erroneous, and against the settled provisions of law, in the interest of justice. D) Your Lordships may be pleased to grant such other and further reliefs that may be deemed fit and proper in the facts and circumstances of the case.” 2. The brief facts of the petitioner’s case is that they made an application for allotment for a piece of land for occupation. That the petitioner no.1 is deserted by her husband and petitioner no.2 is disabled person and they have no source of income. It is contended that the Social Welfare Department, State of Gujarat has made recommendation for allotment of some land to them. 2.1. Pursuant to that, the Karjan Municipality passed a Resolution No.14/15 and 17/16 on 10.06.2020 and allotted open land of Municipality to place cabin in an area admeasuring 10 x 8 feet. It is contended that the Social Welfare Department, State of Gujarat has made recommendation for allotment of some land to them. 2.1. Pursuant to that, the Karjan Municipality passed a Resolution No.14/15 and 17/16 on 10.06.2020 and allotted open land of Municipality to place cabin in an area admeasuring 10 x 8 feet. It is contended that both the petitioners are separately doing business of hosiery and ready made clothes in the aforesaid space area of cabin. That they have also paid amount to the Municipality for occupation of the piece of land. 2.2. The third party Mr.Shah Vishnubhai Ramanbhai has challenged aforesaid resolutions by way of preferring an appeal under Section 258(1) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as “the Act”) before the Regional Commissioner, Municipalities, Vadodara. That without affording any opportunity of being heard, the Regional Commissioner passed an order dated 05.01.2021 and cancelled the aforesaid resolutions of the Municipality which includes Resolution No.17/15, 17/16 dated 10.06.2020 and Resolution No.23 dated 30.07.2020. 2.3. Being aggrieved and dissatisfied with the impugned order dated 05.01.2021 passed by the learned Regional commissioner, Vadodara the present petitioners preferred an appeal under Section 258(3) of the Gujarat Municipalities Act, 1963 before the Commissioner, Municipality Administration, State of Gujarat, Gandhinagar. The same came to be rejected and the order of Regional Commissioner came to be confirmed on 11.02.2022. Both these order have been challenged by the petitioners by way of this petition mainly on the ground that no opportunity of being heard was properly given to them and the impugned orders are not sustainable in the eyes of law. 3. Heard learned advocate Mr.Mahesh Bhavsar appearing for the petitioners, learned AGP Ms.Jyoti Bhatt appearing for the State and learned advocate Mr.Rushabh Shah appearing for respondent no.4 - Karjan Municipality. Though served, none has appeared for respondent no.5 i.e. private respondent. 4. Learned advocate Mr.Bhavsar for the petitioners has submitted that both the petitioners are not having any income. He has also submitted that petitioner no.1 is deserted women by her husband and petitioner no.2 is a disabled person. Mr.Bhavsar has referred to the medical card, copy of which is place at page no.45 onwards and has submitted that since the person is disabled and on application, the Social Welfare Department has recommended on 11.04.2017 vide communication placed at page no.47, for allotment of place to put cabin. Mr.Bhavsar has referred to the medical card, copy of which is place at page no.45 onwards and has submitted that since the person is disabled and on application, the Social Welfare Department has recommended on 11.04.2017 vide communication placed at page no.47, for allotment of place to put cabin. Learned advocate Mr.Bhavsar has vehemently submitted that thereafter resolution was passed for allotment of the place for cabin to the petitioners and they have deposited the amount as per receipt at page nos.50 and 51. He has submitted that the resolution of respondent no.4 came to be challenged by the respondent no.5, wherein they were not joined as a party and resolution of the respondent no.4 came to be cancelled. He has also submitted that being aggrieved with the said order of the Regional Commissioner, the petitioner preferred the appeal before the Commissioner as per page no.15 which came to be dismissed by the Commissioner and order of the Regional Commissioner came to be confirmed. He has submitted that there is no need of any prior permission of Regional Commissioner for allotment of a land in case such permission is for the period of less than ten years. He has also submitted that since the place was granted for temporary period, there was no need of any permission. He has also submitted that the cabin is not on the public road. He has submitted that since the petitioner no.1 is a senior citizen and has no source of income and petitioner no.2 is a disabled person, the impugned order of the authority requires to be set aside and the petitioner needs to be permitted to occupy the place allotted to them by the Municipality on the basis of the earlier resolution. He has prayed to allow the petition. 5. Per contra, learned AGP Ms.Jyoti Bhatt has referred to the impugned order of the Commissioner Municipality, Gandhinagar and submitted that the Commissioner has considered every aspect of the case and has passed the proper order. She has also submitted that the factual aspects has been properly considered by the authority and the authority has not committed any error of facts and law in passing the impugned order. She has specifically referred to para no.4 of the order and has stated that the averment of the petitioners that they have no source of income is false. She has also submitted that the factual aspects has been properly considered by the authority and the authority has not committed any error of facts and law in passing the impugned order. She has specifically referred to para no.4 of the order and has stated that the averment of the petitioners that they have no source of income is false. She has also submitted that prior to the allotment of the land in question by the municipality, no prior permission of Government was obtained under Section 65(2) of the Gujarat Municipalities Act, 1963 and therefore the impugned action of Municipality came to be cancelled and the said action of the authority is in consonance with the law. 6. Learned AGP Ms.Bhatt has also submitted that the cabins are on the public road and therefore also the order of the Municipality was properly cancelled by the authority. She has prayed to dismiss the petition. 7. Learned advocate Mr.Rushbh Shah for respondent no.4- Municipality has submitted that the Municipality has allotted some portion of the land to the petitioners for a temporary purpose. He has submitted that the resolutions of the municipality came to be challenged by the respondent no.5 and on the basis of the pleadings of the parties, the Regional Commissioner has set aside the resolution. Learned advocate has also submitted that it was the opinion of the municipality that there was no need of prior approval and therefore the resolution for allotment of land was passed. However, as the authority has set aside the resolution of the municipality, the municipality has to abide by the order of the Regional Commissioner and the Commissioner. He has submitted that the competent authority has enough power to set aside the resolution of Municipality and therefore there is no fault on the part of the Municipality. He has prayed to dismiss the petition. 8. In rejoinder learned advocate Mr.Bhavsar for the petitioner has submitted that Municipality has issued notice as per page nos.37 and 38, but there is no averment that the cabin is on the public road. He has submitted that cabin is not on the public road and the action of the Regional Commission as well as the Commission of Municipality is not sustainable in the eyes of law and therefore by quashing them, the present petition may be allowed. 9. He has submitted that cabin is not on the public road and the action of the Regional Commission as well as the Commission of Municipality is not sustainable in the eyes of law and therefore by quashing them, the present petition may be allowed. 9. Having considered the submissions made on behalf of both the sides coupled with the material placed on record, it is crystal clear that it is an admitted fact that the municipality has initially passed resolution for allotment of certain portion of the land for putting cabin to the petitioners. It is admitted facts that the petitioners have also paid some amount as occupancy charge as per page nos.50 and 51. It appears that the action of the Municipality of allotment of the land came to be challenged by the respondent no.5 by filing municipal appeal no.71/2020 under Section 258(1) of the Act before the Regional Commission Vadodara. It appears that in the said appeal, the present petitioners were not joined as a party. The Regional Commissioner after considering the reply of the Municipality has allowed the appeal filed by the private respondent and set aside the resolutions of allotting the land. On the basis of which the notice came to be issued by the Municipality to the petitioners for removal of the cabin from the allotted land. It is an admitted facts that the petitioners have challenged the order of the Regional Commissioner by filing appeal under Section 258(3) of the Act before the Commissioner, State of Gujarat. It is an admitted fact that by the impugned order dated 11.02.2022, the Commissioner, Municipality Administration, State of Gujarat, Gandhinagar has rejected the said appeal filed by the petitioners. This order of the Commissioner is under challenge. At this stage, the provisions of Section 258 of the Act needs to be referred to, the same reads as follows :- “258. Powers of Regional Commissioner to suspend execution of orders, etc. of municipalities. This order of the Commissioner is under challenge. At this stage, the provisions of Section 258 of the Act needs to be referred to, the same reads as follows :- “258. Powers of Regional Commissioner to suspend execution of orders, etc. of municipalities. (1) If, in the opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work. (2) When the Collector makes any order under this section he shall forthwith forward to the municipality affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government alongwith copies of such order and statement. (3) Against the order made by the Collector under sub-section (1) the municipality may prefer an appeal to the State Government within [thirty days] from the date on which it receives a copy of the order. The State Government may on such appeal being preferred rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify: Provided that the order shall not be revised, modified or confirmed by the State Government without giving the municipality reasonable opportunity of showing cause against the order.” 10. Thus, the power has been vested in the Regional Commissioner regarding the suspension or prohibiting the order of the Municipality. Against the order of the Regional Commissioner, Appeal is provided to be made to the Commissioner Municipality. The Commissioner has been vested with the powers to interfere with the order of the Regional Commissioner. Thus, the power has been vested in the Regional Commissioner regarding the suspension or prohibiting the order of the Municipality. Against the order of the Regional Commissioner, Appeal is provided to be made to the Commissioner Municipality. The Commissioner has been vested with the powers to interfere with the order of the Regional Commissioner. Thus, there is no dispute regarding the authority in the Regional Commissioner as well as the Commissioner for setting aside the resolution of the Municipality in a given case. 11. Now, in the present matter, the petitioner has submitted that under Section 65 of the Act there is no need of prior approval of the Government as the land was allotted for temporary period and not for exceeding ten years. At this juncture, provisions of Section 65 of the Act needs to be referred to, the relevant provision runs as under:- “65. Powers of municipality to sell, lease, and contract:- (1) A municipality shall be competent; subject to the restriction contained in subsection (2), to lease, sell or otherwise transfer any moveable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes. (2) In the case of every lease or sale of land under sub-section (1) of section 146, and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees, the previous permission of the State Government is required: [Provided that in the case of a lease or sale of land under sub-section (1) of section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section 148.] (3) (xxx xxx) (4) (xxx xxx)” 11.1. Thus, considering this provision it is crystal clear that restrictions have been put on the exercise of powers by the Municipality in respect to sale, lease or transfer any immovable property. Thus, considering this provision it is crystal clear that restrictions have been put on the exercise of powers by the Municipality in respect to sale, lease or transfer any immovable property. Under subsection 2 of Section 65 of the Act, the provision is made that in case of every lease or sale of land under Subsection 1 of Section 65 and of lease of immovable property for a term exceeding ten years and of every sale or transfer of such immovable property, the market value of which exceeds Rs.1,00,000/-, the previous permission of the State Government is required, however, that does not ipso facto absolve the Municipality from seeking necessary permission from the State Government if it is otherwise provided by the Government by a separate resolution. Now, so far as Section 146 of the Act is concerned, it deals with the power of Municipality to deal with the public streets. 12. Now, on perusal of the material placed on record, it appears from the observation of the Commissioner Municipality Administration that prior to sanctioning of allotment of the land by the Municipality, prior permission of the Government was not obtained. The Commissioner has also observed that there was a Civil Suit filed in the Court of Civil Judge (Junior Division), Karjan by the people of Karjan being RCS No.245 of 1990, wherein compromise was arrived at between the parties and the Karjan Municipality has passed a resolution on 29.12.1990, that there would be no new cabin put up on the road side. The observation is also made in the said order that the space allotted to put cabin is on the public road and which may also affect the public at large. Considering all these facts, the Commissioner has upheld the order of the Regional Commissioner quashing and setting aside the impugned resolution of allotment of land. Thus, considering all these facts of the case, it is crystal clear that on the basis of the material placed on record the Regional Commissioner and the Commissioner has passed the impugned order within the power vested in them under Section 258 of the Act, and considering the fact that the cabin would be on the public road. Thus, considering all these facts of the case, it is crystal clear that on the basis of the material placed on record the Regional Commissioner and the Commissioner has passed the impugned order within the power vested in them under Section 258 of the Act, and considering the fact that the cabin would be on the public road. Therefore, considering the facts and circumstances of the present case, it appears that that concerned authorities have not committed any error of facts and law in passing the impugned order and they are sustainable in the eyes of law. Therefore the present petition is liable to be dismissed. 13. In view of the above, the present petition stands dismissed. No order as to costs. In view of the order passed in the main matter, civil application does not survive and the same stands disposed of accordingly.