Gujarat High Court Case Information System
Print
SCA/11947/2009 38/ 38 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11947 of 2009
With
SPECIAL
CIVIL APPLICATION No. 2158 of 2010
To
SPECIAL
CIVIL APPLICATION No. 2265 of 2010
With
SPECIAL
CIVIL APPLICATION No. 2376 of 2010
To
SPECIAL
CIVIL APPLICATION No. 2390 of 2010
For Approval and
Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AJMALBHAI
RAMJIBHAI RABARI & 266 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
SI NANAVATI SR.ADV. WITH MR VIVEK N MAPARA WITH MS ANUJA S NANAVATI
for
Petitioner(s) : 1 - 267.
MR PRAKASH K.JANI, GOVERNMENT PLEADER
WITH MR M.R. MENGDEY A.G.P. for Respondent(s) : 1-3,
MR RM CHHAYA
for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 26/02/2010
COMMON
ORAL JUDGMENT
As
common question of law and facts arise in this group of petitions
and as such all the petitioners of Special
Civil Application Nos. 2158 to 2265 of 2010 with
Special
Civil Application Nos. 2376 to 2390 of 2010, are
petitioners in Special
Civil Application No. 11947 of 2009, who have filed
subsequently individual petitions, all these petitions are being
disposed of by this common judgement and order.
In
all these petitions under Article 226 of the Constitution of India,
the respective petitioners have prayed for an appropriate writ,
order and/or directions permanently restraining the respondents
and/or their officers, agents, servants etc. from evicting or
dispossessing the petitioners or any of the residents of land
bearing Survey No.14, Town
Planning Scheme No. 1, Final
Plot No. 41 situated at Ghatlodia, Ahmedabad. It is also
further prayed for an appropriate writ, order and/or direction
directing the respondents to offer alternative living space to
each of the residents of the land bearing City Survey No.14, Town
Planning Scheme No. 1, Final
Plot No. 41, situated at Ghatlodia, Ahmedabad and
rehabilitate them adequately before directing them to hand over
the possession of the land which is in their possession.
Mr.S.I.
Nanavati, learned Senior Advocate appearing with Mr.Vivek N.
Mapara, learned advocate has appeared on behalf of the petitioners
and Mr.Prakash Jani, learned Government Pleader has appeared on
behalf of the State authorities respondent Nos.1 to 3 and
Mr.R.M. Chhaya, learned advocate has appeared on behalf of the
respondent No.4 Ahmedabad Municipal Corporation.
It
is the case on behalf of the respective petitioners that they are in
possession of the land in question since last more than 45 years and
are residing in the said land by constructing / putting up small
huts / rooms and their names have also been entered into Voters
List. That the respective petitioners are also having Ration
Cards. It is the case on behalf of the respective petitioners that
the land in question is not reserved for any purpose under the
Town Planning Scheme
nor the same is a Gauchar Land nor the said land is on Government
road. It is submitted that the adjoining to the said land, there
are housing societies and residential complexes. It is also the
case on behalf of the respective petitioners that earlier the
land in question was under Ghatlodia Gram Panchayat and at present
the said land comes within the Municipal limits of respondent No.4
Ahmedabad Municipal Corporation. That according to the petitioners,
the petitioners – hutment dwellers have been residing in the said
land since the time of Ghatlodia Gram Panchayat and have been paying
taxes/cess since then and at present also taxes/cess of the
Ahmedabad Municipal Corporation are being paid by the respective
petitioners. It is also the case on behalf of the respective
petitioners that they are also provided with basic facilities like
electricity, street light, drainage, drinking water facility etc.
According
to the petitioners, at the time when the Ghatlodia Gram Panchayat
was in existence, a Resolution was passed on 20/9/1978 to give
alternative land to the hutment dwellers of the said land and only
thereafter to undertake the procedure of eviction. It is submitted
that various representations were made to the respondent authorities
and State authorities along with the recommendations of the
appropriate authority recommending the State Government to give the
said land to the hutment dwellers who are residing in the area since
last 40 years. It is submitted that despite the various
representations the respective petitioners are not provided
alternative accommodation and without providing alternative
accommodation, they are likely to be dispossessed. It is submitted
that the respective petitioners were issued notices for eviction by
the respondent authorities. It is submitted that earlier the
respondent authorities had issued notices for eviction to the
petitioners in the year 1987 against which some of the
petitioners have preferred Civil Suit being Civil
Suit No.15 of 1987 and thereafter no action was taken by the
authorities in pursuance o the said eviction notices. That
thereafter in the year 2005 another eviction notices were issued by
the authorities, against which another Civil Suit being Civil
Suit No.696 of 2005 has been preferred by some of the
petitioners.
It
is the case on behalf of the petitioners that one Jan Adhikar
Sangh also filed a public interest litigation petition before
this Court being Special
Civil Application No. 21508 of 2005, against issuance
of the eviction notices in the year 2005 and this Hon’ble Court
granted stay order restraining the respondent authorities from
evicting the hutment dwellers from the said land. However, it came
to the knowledge of the petitioners from the reliable sources that
the respondent authorities have passed an order to demolish/remove
the huts of the petitioners and therefore the petitioners
inquired into the matter and on inquiry the petitioners learnt
that the said Special
Civil Application has been dismissed by this Hon’ble
Court vide order dtd.16/12/2008 on the technical ground of
non-joinder of necessary parties. It is also the case of the
petitioners that since the stay granted by this Hon’ble Court has
been vacated, the respondent authorities have initiated action for
eviction of the hutment dwellers without providing alternative
accommodation and hence the petitioners have preferred present
Special
Civil Application under Article
226 of the Constitution of India, for the aforesaid
reliefs.
Mr.S.I.
Nanavati, learned senior advocate appearing on behalf of the
respective parties has vehemently submitted that the respective
petitioners are staying with their families since last more than
45 years on the land in question and in fact, there are more than
300 families residing on the said land. It is submitted that the
respective petitioners and their family members are very poor and
landless people and they cannot be evicted from their residence
without providing alternative accommodation. It is submitted that
to remove/evict the petitioners from the residences would be
against Article 21 of the Constitution of India.
Mr.S.I.
Nanavati,learned Senior Advocate appearing on behalf of the
respective petitioners has further submitted that the hutment
dwellers have constructed the huts on the Government land and the
hutment dwellers are residing in the huts and they are given all
civic amenities since last many years. It is submitted that if the
Government requires the land in question for some specific public
purpose, in that case also it would be bounden duty of the public
institution to treat the residents with dignities and compassion.
Mr.S.I.
Nanavati, learned Senior Advocate appearing on behalf of the
respective petitioners has heavily relied upon the decision of the
Hon’ble
Supreme Court in the case of Ahmedabad Municipal
Corporation Vs. Nawab Khan Gulab Khan and Others, reported
in (1997) 11 SCC 121 in support of his prayer to direct the
respondents not to evict the respective petitioners until they
have been provided alternative accommodation. It is submitted by
Mr.Nanavati, learned senior advocate appearing on behalf of the
respective petitioners that after the decision of the
Hon’ble Supreme Court in the case of Nawab Khan
Gulab Khan and Others (supra), the Ahmedabad Municipal
Corporation has now framed the Scheme with respect to slum dwellers,
as provided in clause 16.2 of the General Development Control Rules
( GDCR for short) of the Ahmedabad Municipal Corporation and if
the encroachers are residing since prior to 1991 census, they are
entitled to accommodation on the very plot encroached upon by them.
It is submitted that as the respective petitioners are residing /
staying on the land in question since prior to 1991 census, they
come within the definition of slum dwellers and therefore, entitled
to alternative accommodation on the very land encroached by them.
Therefore, it is submitted that as per the Scheme, the respective
petitioners are eligible to be rehabilitated on the same plot.
It
is further submitted by Mr.S.I. Nanavati, learned Senior Advocate
that even the respective petitioners are not served with notices
with respect to removal and no opportunity has been given to the
respective petitioners to show cause as to why they should not be
evicted from the land in question.
Mr.S.I.
Nanavati, learned senior advocate appearing on behalf of the
petitioners has also relied upon the recent decision of the
Division Bench of this Court in the case of Intajamuddin
Yasinbhai Ansari & Ors. Vs. State of Gujarat & Ors.,
reported in 2009 (1)
GLR 659, by submitting that as observed by the Division Bench
the question with respect to rehabilitation of the encroachers who
have encroached upon the Government land for residential purpose is
required to be seen as a humanitarian problem and is required to be
considered sympathetically. It is submitted that in the said
decision the Division Bench directed the respective respondent
authorities not to evict he petitioners until they are provided with
alternative accommodation. By making above submissions and relying
upon the above decisions it is requested to allow the present
Special
Civil Applications.
All
these petitions are opposed by Mr.Prakash K. Jani, learned
Government Pleader appearing on behalf of the respondent Nos.1 to 3
and Mr.R.M. Chhaya, learned advocate appearing on behalf of the
respondent No.4. A detailed Affidavit-in-Reply has been filed on
behalf of the respondent Nos.1 to 3, affirmed by the Mamlatdar, City
Ahmedabad. It is submitted that as such the land in question is a
Gauchar land which has been encroached upon by the respective
petitioners.
It
is the case on behalf of the respondent Nos.1 to 3 and so stated in
the Affidavit-in-reply that the land in dispute was originally a
Gauchar land and it was vested in the Ghatlodia Gram Panchayat,
however on 20/8/1982 the land came to be resumed by the State
Government due to the inability on the part of the Gram Panchayat to
preserve the said land. Thus, in the year 1982 the land was again
vested in the State Government. Some persons unauthorisedly
encroached upon the land and therefore on 1/9/1984 the Mamlatdar,
City passed order under sec.61 directing the encroachers to remove
their encroachment. The said order was challenged at the relevant
time by the trespassers on the land by way of filing Civil Suit
No.15 of 1987 before the learned Civil Judge (SD), Narol, Ahmedabad
Rural. It is the case on behalf of the respondents that in the said
suit, the plaintiffs failed to obtain any interim injunction from
the competent civil court. That the said suit was pending till the
year 2004 and in the year 2004 the said suit has been dismissed for
non-prosecution. It is the case on behalf of the respondents that
on 14/3/2005 out of originally 61 plaintiffs, 54 persons filed
Misc. Civi Application No.88 of 2004 seeking restoration of the
Civil Suit No.15 of 1987 which came to be allowed and the said Civil
Suit No.15 of 1987 is restored and the said suit is till today
pending before the learned Civil Judge (SD), Ahmedabad Rural.
However, the plaintiffs have failed to obtained any interim
protection in the said suit. It is the case on behalf of the
respective respondents that again in the year 2005, the
encroachers/trespassers were served with notices under sec.202 of
the Bombay Land Revenue Code and around 59 persons had filed Civil
Suit No.696 of 2005 before the learned Civil Judge (SD), Ahmedabad
Rural and in the said suit, the concerned persons could not obtain
any protection or any interim relief in their favour. That the
aforesaid Civil Suit No.696 of 2005 is also pending before the
trial court.
It
is further submitted by the learned counsel for the respondents that
a direction was issued by the learned Single Judge of this Court in
Special
Civil Application No.1982 of 2004 wherein encroachment
on the Government land was challenged before this Court and the
learned Single Judge issued direction to the State Government to
strictly implement Circular dtd.26/2/2004, by which direction was
issued to the various authorities to see that there is no
encroachment on the Gauchar land and immediate steps to be taken for
removal of the same. It is submitted that along with Special
Civil Application No. 1982 of 2004 several other
petitions were also disposed of by the Division Bench by common
order dtd.28/6/2006 and by the said common order Special
Civil Application No. 13938 of 2005 was also disposed
of, which pertains to the land in dispute. Therefore, it is
submitted that the directions are already issued by the Division
Bench of this Court to remove the encroachment made on the disputed
land.
It
is submitted on behalf of the respondents that they deny that the
respective petitioners who are alleged to be approximately 267
persons are residing since last more than 45 years. It is submitted
that when even the first Civil Suit was filed in the year 1987, it
was filed by only 61 persons who alleged to have encroached upon the
land in question. Thus, in the year 1987 only 61 persons were
residing on the disputed land. It is further submitted that as such
on 6/3/2009 the Talati-cum-Mantri of the Ghatlodia Gram Panchayat
has drawn Panchnama after inspection and it is found that most of
the encroachers have constructed various rooms, which they have
rented to various persons and many of the encroachers are residing
at different place and they do not occupy rooms constructed by them
on the disputed land. It is submitted that, in fact, the persons
who are actually occupying the rooms constructed on the land in
question are different than the present petitioners. It is submitted
that on perusal of the Voters List prepared in the year 2009 it
becomes clear that most of the persons who are actually occupying
the rooms have not come before this Court and the persons who have
come before this Court are not actually occupying the rooms
constructed on the disputed land. In support of his above
submissions, the respective respondents have given one example of
petitioner
No.2 Amratbhai Khengarbhai Rabari, who is
residing in Karmacharinagar Cooperative Housing Society Limited. It
is submitted that in fact, the said Amratbhai has constructed in all
29 rooms and all the rooms have been leased out by him to different
persons. It is further submitted that even the respective
encroachers have constructed not only the rooms but some shops are
also constructed.
It
is further submitted on behalf of the respondents that merely
because some basic facilities are given to the encroachers,
automatically they do not get any right to get the alternative
accommodation and/or on that basis they cannot pray that they cannot
be evicted.
With
respect to reliance placed upon the Resolution passed by Ghatlodia
Gram Panchayat not to evict the encroachers till alternative
accommodation is given, it is submitted on behalf of the respondents
that as such the land in question was given to the Gram Panchayat as
a Gauchar land and it was found that the Gram Panchayat failed to
protect the Gauchar land and permitted encroachers to encroach upon
the Gauchar land and precisely for that reason, the land came to be
again resumed by the State Government. At the time of resuming the
land again by the State Government, it was found that the Gram
Panchayat failed to remove the encroachment by taking steps under
sec.105 of the Gujarat Panchayats Act. Therefore, it is submitted
that in view of the aforesaid facts, the petitioners cannot claim
right to get alternative accommodation on the basis of the
aforesaid Resolution of the Gram Panchayat which is absolutely
illegal.
Mr.P.K.
Jani, learned Government Pleader appearing on behalf of the
respondent Nos.1 to 3 has further submitted that in view of the
pendency of the two civil suits and considering the fact that the
respective plaintiffs who are also some of the petitioners
in these petitions, have failed to get interim
protection, it is requested to dismiss the present petition.
Mr.P.K.
Jani, learned Government Pleader has heavily relied upon the
decision of the Division Bench in the case of Association of
Cabin Holdersof Karchelia Vs. State of Gujarat & Ors.,
reported in 2007 (1) GLR 826; unreported decision of the
learned Single Judge in Special
Civil Application No.6937 of 1999 and other
cognate Special
Civil Applications as well as observations made by the
Division Bench in the order passed in Special
Civil Application No. 8121 of 2003 in support of
his submission that as observed by this Court in the aforesaid
decisions to say that the encroachers cannot be evicted without
providing alternative accommodation sites would be giving a premium
to illegality and wrong doers.
Now,
with respect to the contentions on behalf of the petitioners that
the impugned action is without issuing any notices and/or without
following the principles of natural justice is concerned, Mr.Jani,
learned Government Pleader has submitted that as such there are no
averments in the petition with respect to the same. It is submitted
that it is not the case on behalf of the petitioners in the
petition that no notices have been issued and/or the action is
against the principles of natural justice. It is submitted that
even otherwise as can be seen that even in the year 1987 and
thereafter in the year 2005 also, the persons who were found to have
encroached upon the land in question were served with the notices,
against which they have filed the aforesaid two Civil Suits. It is
submitted that as such against those persons who were found to be
in possession and who had encroached upon the land in question were
initially served with the notices under sec.61 of the Bombay Land
Revenue Code and thereafter, notices under sec.202 of the Bombay
Land Revenue Code. Therefore, it is submitted that it cannot be said
that the impugned action is illegal and/or without following the
procedure and/or is against the principles of natural justice.
On
the submissions made by Mr.S.I. Nanavati, learned senior advocate
with respect to clause 16.2 of the GDCR and the alleged scheme of
the concerned respondents with respect to slum dwellers who have
encroached upon the land prior to 1991 census, Mr.Jani, learned
Government Pleader as well as Mr.Chhaya, learned advocate appearing
on behalf of the respondent No.4 have submitted that as such there
are no averments in the petition either with respect to clause 16.2
of the GDCR or with respect to any Scheme framed by the Government
and/or the Corporation. It is submitted that even the reliance
placed upon clause 16.2 of the GDCR is absolutely misplaced and on
misinterpretation of clause 16.2 of the GDCR. It is submitted that
Clause 16.2 of the GDCR is not with respect to slum dwellers who
have encroached upon the Government land and/or any land and to
provide alternative accommodation to them on the very land as
alleged. It is submitted that clause 16.2 of the GDCR pertains to
giving additional benefit to the owners of the land whose land have
been encroached upon and who want to use 50% of the land for such
encroachers / slum dwellers and it provides that if 50% land is
used for such hutment dwellers, in that case, they are entitled to
additional F.S.I. Therefore, it is submitted that the claim on
behalf of the respective petitioners relying upon clause 16.2 of the
GDCR that they should be provided alternative accommodation on the
very land in question is absolutely misplaced and it cannot be
granted. By making above submissions and relying upon the above
decisions it is requested to dismiss the present Special
Civil Application.
Heard
the learned advocates appearing on behalf of the respective parties
at length.
It
is an admitted position that all the respective petitioners have
encroached upon the land in question and they are rank trespassers.
It is the case on behalf of the petitioners that the land in
question is Government Waste Land and on the other hand, it is the
case on behalf of the respondents that it is a Gauchar land. Without
entering into the larger question as to whether it is a Gauchar land
or Government Waste Land, as such it does not make any vital
difference. Even otherwise, it cannot be disputed that the
management of the land in question was given to Ghatlodia Gram
Panchayat as the Gauchar land. The Ghatlodia Gram Panchayat failed
to protect the said Gauchar land in question and there were
encroachments found on the land in question by approximately 61
persons and the Ghatlodia Gram Panchayat at the relevant time failed
to take action of removal of encroachment under sec.105 of the
Gujarat Panchayats Act. Therefore, the said land came to be again
resumed by the State Government and vested in the State Government.
In view of the above, the reliance placed upon the Resolution of the
Ghatlodia Gram Panchayat at the relevant time resolving not to evict
the encroachers until they are provided alternative accommodation,
shall not be of any assistance to the petitioners. The respective
petitioners cannot rely upon such an illegal resolution for
which even the land in question came to be again resumed by the
State Government. It is an admitted position that 61 persons who
are some of the petitioners herein were served with the notices
under sec.61 of the Bombay Land Revenue Code in the year 1987 and
they also filed Civil Suit No.15 of 1987 but did not get any interim
protection. The said suit is still pending. Again some other 61
persons were served with notices under sec.202 of the Bombay Land
Revenue Code which has given rise to file the Civil Suit No.696 of
2005 and the said plaintiffs have also failed to get any interim
protection from the learned trial court. Both the aforesaid civil
suits are still pending. In view of the pendency of the aforesaid
civil suits, as such present petitions are not required to be
entertained.
Even
on merits also, the petitioners have no case. It is the case on
behalf of the respective petitioners that they are residing by
putting their huts and/or constructing small rooms since last more
than 45 years i.e. prior to 1991 census and therefore, they cannot
be evicted unless they are provided with alternative accommodation,
that too on the very land in question. It is the case on behalf of
the respective petitioners that as such there are approximately 267
families likely to be affected who are residing since last more than
45 years. The aforesaid is disputed by the respondents by filing a
detailed Affidavit-in-reply with supporting documents enclosing copy
of the Panchnama prepared on 6/11/2009. It is the specific case on
behalf of the respondents that some of the original encroachers are
not residing on the land in question and they have rented the rooms
and are recovering rent, who have also preferred petitions. One
example is given of petitioner
No.2 Amratbhai Rabari. He is found to be residing
in Karmachari Cooperative Housing Society, who has constructed 29
rooms and who has rented to other persons and is recovering the
rent. Therefore, it is specific case on behalf of the respondents
that those persons who have filed the petitions, some of them are
not residing on the land in question and those who are residing,
have not preferred petitions. The aforesaid is tried to be denied
by the petitioners. However, the aforesaid would be disputed
question which is not required to be considered by this Court under
Article 226 of the Constitution of India. Construction of 29 rooms
by the petitioner
No.2 and other persons occupying the said 29 rooms
constructed by the petitioner
No.2 is not denied by the petitioners. As such, there
is no reference to the same in the petition. To that extent, there
is a suppression of material facts which disentitles the
petitioners
of discretionary relief under Article 226 of the
Constitution of India.
Now
so far as the contention on behalf of the respective petitioners
that they cannot be evicted from the land in question without
providing them alternative accommodation is concerned, it is to be
noted that it is admitted position that the respective petitioners
have encroached upon the Government land and they are rank
trespassers. The respective petitioners being encroachers and/or
rank trespassers, as such cannot as a matter of right claim that
they cannot be evicted without providing them alternative. Somewhat
similar question came to be considered by the Division Bench in
Special
Civil Application No. 8121 of 2003 and on behalf of
the encroachers who encroached upon the public road, it was
contended that they cannot be evicted and/or remove from site
unless they are provided alternative site, however, while dismissing
the said Special
Civil Application, the Division Bench in para 3
observed as under:-
3. There
is no dispute that the land in occupation
of the occupants of hutments is a public land owned by
the Vadodara Municipal Corporation. That being so, we
fail to understand, how the petitioner can continue
thereon and seek allotment of alternative site(s).
Encroachment of public property is rampant and is
increasing alarmingly. In case, the claim for remaining
on the same site(s) or providing the encroachers
alternative site(s) is allowed, the result would be
disastrous; the encroachers would encroach upon the
public property; resist attempts by the authorities to
remove them to clear the area or press for alternative
site(s) under the banner of right to shelter. We should
not allow such a thing to happen since such a thing would
not be in the interest of the nation. We, therefore, do
not find merit in the petition and the same is dismissed.
Notice is discharged.
In
case of Association of Cabin Holders of Karchalia Vs. State of
Gujarat & Ors. (Supra), the Division bench in paragraph Nos.8, 9
and 13 has observed as under:-
8. Undisputedly,
the petitioners have not been allotted any land, nor have any
authority of law to stay in the kutcha/pacca construction raised by
them. They are rank trespassers who have made encroachment by raising
construction on the side flanks of the road within the ribbon
development area. It cannot be disputed that the road does not mean
pacca
construction either with cement or concrete or by metal or by
bituminous, but, the side flanks, which are on the sides of the
roads, which may even be kutcha
would also be parts of the roads. The roads are not made for stay,
rather permanent stay, the roads are constructed to provide civic
amenities for the convenience of the general public. Of late, it is
to be seen that one man would take a risk by placing some
material or
some concrete
and
thereafter, he would be followed by others. Serious illegal
activities in making encroachment would go on and ultimately, the
Association like the present, which we can describe as the rampant
wrongdoer, under its authority, would appear before another Officer
of the Government
and would try to intimidate upon
him and would also seek political protection. In the present case,
the Members of Parliament and the Members of Legislative Assembly
were readily available to the wrongdoers when they went to the higher
Officers and pleaded the cases of the petitioner’s members that no
action should be taken against them and if they are to be removed,
some alternative accommodation must be provided to them. It is most
unfortunate that to protect the vote bank, the politicians are
committing injustice with the people who are law abiding citizens.
Democracy does not mean that one is entitled to exercise some rights
which the law does not confer upon him, democracy also does not mean
that a group of wrongdoers would stand up and with their brutal
and
thumping majority, would compel the Officers to surrender or submit
before them and accept their illegal demands. Democracy is a system
of the Government which is of the public, by the public and for the
public. All the wrongdoers, who are less in number, if are allowed to
rule the law or govern the Government, then, that would not be the
liberty, but, it would prove to be the death-knell in the democracy’s
coffin.
In
the present matter, without any authority of law, constructions were
raised by the members of the petitioner-Association, they had no
authority, they had no allotment, they had no settlement, nor they
had any oral permission, nor any political patronage at the time
when they entered on this land. Assuming for a minute that they had
some political patronage at the time of their illegal entry upon the
land, then also, the said political patronage would not protect the
illegal act committed by the members of the petitioner-Association.
The politics is not on the roads as the encroachment, but, the
politicians find its room in the Parliament and the Legislative
Assembly. Such illegal assurance by the politicians that everything
would be settled in favour of the slum dwellers, wrongdoers,
trespassers or encroachers may or may not be a misconduct on their
part under the provisions of the Representation of the People Act,
but, any such assurance would be illegal if it does not have any
legal foundation to stand.
13. The petitioners
do not have any right under any law except making a submission that
they are entitled for their rehabilitation or resettlement at some
place. If resettlement or rehabilitation proceedings are taken in
favour of these persons, then, it would be adding premium upon the
wrong committed by such persons. Would not the law abiding citizen
feel bad that though, all through, he had been observing law, he
could not seek any benefits under the strong clutches of law, while
on the other hand, a wrongdoer, whose action was in the teeth of law,
is getting some benefits and his illegal action is ripening in some
rights in favour of the wrongdoer. In our opinion, an order for
settlement or rehabilitation of such persons can never be made.
Identical
question came to be considered by the learned Single Judge in an
unreported decision in Special
Civil Application No. 6937 of 1999 and other Special
Civil Applications, in which notices issued by the
Gram Panchayat for removal of the encroachment made by the
petitioners by constructing huts were under challenge and even
relying upon the decision of the
Hon’ble Supreme Court in the case of Nawab Khan Gulab
Khan & Ors. (supra), the learned Single Judge observed in
paragraph Nos.7, 8, 9 and 10 has observed as under:-
7. Having
considered the above, it appears that there is no dispute on the
point that the petitioners are not having title over the land. It
further appears from the report of the Gram Panchayat as well as of
the AUDA that initially, the land was nearby the lake
and now as the land is reserved for garden and the
petitioners are encroachers over the land in question. It may be
that at the relevant point of time, due to their financial condition
or otherwise, they constructed their shelter and occupied for a
period of about 20 years as sought to be canvassed on behalf of the
petitioners, but when the
authorities are taking steps for removal of such encroachment, the
petitioners cannot assert as of right, that alternative land must be
provided to them and till the alternative land is provided, they
shall not vacate. Similarly, when it is an encroachment over the
public property, if the Court
gives indulgence and directs the authority to provide
alternative land, such would not be in the larger public interest
and the reason being that the people will be tempted to make
encroachment over the public property. This Court while exercising
powers under Article 226 of the Constitution, would not create a
situation, which results into permitting the encroachment over the
public property. On the contrary, the Court would make an attempt
to see that the public property are protected and are made available
to the public at large for their benefit and are not appropriated or
utilised by the encroachers who are having no authority to occupy
such public property.
8.
The reliance placed upon the decision of the Apex Court in
case of Olga Tellis & Ors. Vs. Bombay Municipal Corporation and
Ors. reported at AIR 1986 SC 180 and the equivalent reported at at
1985(3) SCC 545, is ill-founded, inasmuch as subsequently, the said
decision is considered by the Apex Court in case of Ahmedabad
Municipal Corporation Vs. Nawab Khan Gulab Khan & Ors. reported
at 1997(3) GLR 1998, and the Apex Court observed inter alia at para
28 as under:
Encroachment
of public property undoubtedly obstructs and upsets planned
development, ecology and sanitation. Public property needs to be
preserved and protected. It is but the duty of the State Government
and the local bodies to ensure the same. This would answer the
second question. As regards the fourth question, it is to reiterate
that judicial review is the basic structure of the Constitution.
Every citizen has a fundamental right to redress the perceived legal
injury through judicial process. The encroachers are no exceptions
to that Constitutional right to judicial redressal. The
Constitutional Court, therefore, has a Constitutional duty as
sentinel qui vive to enforce the right of a citizen when he
approaches the Court for perceived legal injury, provided he
establishes that he has a right to remedy. When an encroacher
approaches the Court, the Court is required to examine whether the
encroacher has any right and to what extent he would be given
protection and relief. In that behalf, it is the statutory duty of
the State or the local bodies or any instrumentality to assist the
Court by placing necessary factual position and legal setting for
adjudication and for granting/refusing relief appropriate to the
situation. Therefore, the mere fact that the encroachers have
approached the Court would be no ground to dismiss their cases. The
contention of the appellant-Corporation that the intervention of the
Court would aid impetus to the encroachers to abuse the judicial
process is tenable. As held earlier, if the appellant-Corporation or
any local body or the State Government or the State acts with
vigilance and prevents encroachment immediately, the need to follow
the procedure enshrined as an inbuilt fair procedure would be
obviated. But, if they allow the encroachers to remain in settled
possession suficiently for long time, which would be a fact to be
established in an appropriate case, necessarily suitable procedure
would be required to be adopted to meet the fact situation and that,
therefore, it would be for the respondent concerned and also for the
petitioner to establish the respective claims and it is for the Court
to consider as to what would be the appropriate procedure required to
be adopted in the given facts and circumstances.
It
was further observed by the Apex Court at para 29 as under:
It
is true that in all cases it may not be necessary, as a condition
for ejectment of the encoracher, that he should be provided with
an alternative accommocation at the expense of the State which if
given due credence, is likely to result in abuse of the judicial
process. But no absolute principle of universal application would
be laid in this behalf. Each case is required to be examined on
the given set of facts and appropriate direction or remedy be
evolved by the Court suitable to the facts of the case. Normally,
the Court may not, as a rule , direct that the encroacher should
be provided with an alternative accommodation before ejectment
when they encroached public properties, but as stated earlier,
each case requires examination and suitable direction appropriate
to the facts require modulation.
Therefore,
the decision upon which the reliance is placed by Mr. Oza, learned
counsel for the petitioners is of no help to the petitioners.
However, if the matter is considered in light of the aforesaid
observations made by the Apex Court, then also, when under Town
Planning Scheme, as the land is reserved for a public garden, it
should be made available to the public at large. Such will be the
situation even if the lake is there. The reason being that as
observed by the Division Bench of this Court in the case of Shailesh
R. Shah Vs. State of Gujarat reported 2002(3) GLR 2295, the water
bodies are required to be preserved and no construction nearby a
particular area of the water bodies are to be permitted. Therefore,
on both counts, if the action is taken for removal of the
encroachment, such an action cannot be said as unreasonable or
arbitrary on the part of the authority.
9.
So far as providing for alternative land is concerned, as
sought to be canvassed on behalf of the petitioners, such direction
in my view is not required to be issued, which may result into
encouraging the encroachment over the public property. It deserves
to be recorded that the aforesaid observations made by the Apex
Court in case of Ahmedabad Municipal Corporation(supra), were
pertaining to the pavement, streets and footpaths and removal of
the encroachment over such public roads. Even if such principles
are made applicable, I find that in normal circumstances, as
observed by the Apex Court, no direction should be given for
providing of the alternative accommodation or alternative land to
the persons who have made encroachment over the public property. It
may be that on account of the general policy matters, the Government
or the concerned authority may decide to undertake measures for
rehabilitation of such hutments as may be permission in law.
10.
The approach of the authority for removal of the encroachment
over the public road may not be the same as it is required for the
property other than the public road or street or pavement or both.
In my view, if the matter pertains to the residential accommodation
or shelter of hutments, some humanitarian approach may be required
for providing some reasonable time to the persons concerned to shift
their belongings and to vacate the land. Of course, such time may
be provided, if the person concerned of his own undertakes to remove
the encroachment and vacates the land by shifting his belongings to
any other place. Otherwise in normal circumstances, for residential
accommodation, six weeks time may be sufficient to the persons
concerned to remove the encroachment and shift his belongings.
In
view of the above decisions of the Division Bench as well as the
learned Single Judge of this Court no writ can be issued against
the respondents directing them to provide alternative site /
accommodation to the petitioners and until then they shall not be
evicted.
Now,
so far as the reliance placed upon the decision of the Division
Bench in the case of Intajamuddin Yasinbhai Ansari & Ors.
(supra) is concerned, as such there is no absolute proposition of
law laid down by the Division Bench in the said decision. In the
facts of that case, the Division Bench might have been persuaded to
issue directions upon the respondents not to evict the encroachers /
petitioners until they are provided with alternative accommodation /
site. It appears that the aforesaid decisions were not brought to
the notice of the Division Bench. Even considering the said
decision, there is no absolute proposition of law laid down by the
Division Bench that in all the cases no encroachments can be
removed without providing alternative accommodation / site. Now, so
far as reliance placed upon the case of Nawab Khan Gulab Khan &
Ors. (supra), as such the same has been dealt with and considered
by the learned Single Judge while deciding Special
Civil Application No. 6937 of 1999 and even
considering the said decision of the
Hon’ble Supreme Court that in all cases, it may not
be necessary as a condition that ejectment of the encroacher he
should be provided alternative accommodation at the instance of the
State which if given due credence is likely to abuse judicial
process and each case is required to be examined on the given set
of facts and appropriate direction or remedy evolved by the Court
suitable to the facts of the case. It is also observed by the
Hon’ble Supreme Court in the said decision that
normally the Court may not, as a rule, direct that the encroacher
should be provided with alternative accommodation before ejectment
when they encroached the public property.
Now,
considering the facts of the case on hand and the case on behalf of
the respondents, and considering the fact that some of the
petitioners, more particularly petitioner
No.2 has constructed as many as 29 rooms and let
out to other persons and is recovering rent and is residing in a
society at other place and considering the case on behalf of the
respondents that some of the petitioners are not residing on the
land in question and also considering the fact that shops are also
constructed, this court would not like to exercise powers under
Article 226 of the Constitution of India in favour of such persons.
Now,
the reliance placed upon clause 16.2 of the GDCR is concerned,
considering clause 16.2 it appears that the submissions made on
behalf of the petitioners relying upon clause 16.2 to pray
alternative accommodation on the very land is absolutely misplaced
and on misinterpretation of clause 16.2. As such, clause 16.2 is not
a Scheme framed by the Corporation under the authority to provide
alternative accommodation to the encroachers on the very land which
is encroached upon by them. It provides that if a land is
encroached upon and owner of the land proposes a put up a scheme to
accommodate such encroachers on the very land in question, in that
case, they can do it in 50% of the land and the rest of the 50%
land can be used by such owner and such owner can get an additional
FSI. Therefore, the submissions on behalf of the petitioners to
offer alternative accommodation on the very land in question relying
upon clause 16.2 of the GDCR and contending that they are in
occupation since 1991 census cannot be accepted and granted, as
there is no substance in it. As stated above, the respective
petitioners are encroachers and rank trespassers and considering the
observations made by the Division Bench of this Court and the
learned Single Judge referred to hereinabove and even considering
the decision of the
Hon’ble Supreme Court in the case of Nawab Khan Gulab
Khan (supra), referred to hereinabove, the petitioners as a matter
of right cannot pray that they cannot be evicted without offering
them alternative accommodation. In fact such a relief cannot be
granted. If such a relief is considered and/or granted, it would
amount to give premium to the wrongdoer who have encroached upon the
Government land and there will not be any rule of law. As observed
by the Division Bench, as first they make the encroachment upon the
Government land and thereafter when proceedings are initiated to
evict them, they will pray for alternative accommodation which
cannot be granted. Even considering the same as a social problem, to
maintain rule of law, such a premium to the wrongdoers, who have
encroached upon the Government land is not required to be given,
more particularly, in the facts and circumstances of the case
narrated hereinabove.
For
the reasons stated above, all these petitions deserve to be
dismissed and are accordingly dismissed. Notice is discharged.
Ad-interim relief granted earlier stands vacated forthwith.
At
this stage Mr.S.I. Nanavati, learned senior advocate appearing on
behalf of the respective petitioners has prayed to stay the
execution of the present judgement and order and to continue
ad-interim relief granted earlier, so as to enable the petitioners
to approach the higher forum.
So
as to enable the petitioners to approach the higher forum
challenging the present judgement and order, the respective parties
are directed to maintain status-quo, as on today until 30/4/2010.
[M.R.
SHAH, J.]
rafik
Top