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LPA/88820/2006 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 888 of 2006
In
SPECIAL
CIVIL APPLICATION No. 24184 of 2005
With
CIVIL
APPLICATION No. 7529 of 2006
In
LETTERS
PATENT APPEAL No. 888 of 2006
=========================================================
DEGHAM
NAGARPALIKA - Appellant(s)
Versus
AKTARLALI
KASAMALI SAIYAD & 1 - Respondent(s)
=========================================================
Appearance
:
MR
YV SHAH for
Appellant
MR NIRAL R MEHTA for Respondent(s) : 1,
MS MINI NAIR
AGP for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE 7th August, 2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M. DOSHIT)
Heard
the learned advocates.
Admit.
Learned advocates Mr. Mehta and Ms. Nair appear for the respondents
and waive service of notice of admission for the respective
respondent. With the consent of the learned advocates, the Appeal is
heard and decided today.
This
Appeal preferred under clause 15 of the Letters Patent by the Dahegam
Municipality [hereinafter referred to as, the Municipality ]
arises from the judgment and order dated 3rd February,
2006 passed by the learned Single Judge in above Special Civil
Application No. 24184 of 2005.
The
dispute centers around a piece of land admeasuring 6 sq.m allotted to
the respondent no.1 herein by the Collector, Gandhinagar for placing
his cabin to carry on his profession of watch repairing in the town
of Dehagam. The said plot being part of a road, upon objection by the
Municipality, the said sanad was later on cancelled. The Municipality
has sought to evict the respondent no.1 from the said spot on the
premise that the said spot forms part of the road known as Suvidha
Path . Against the decision of the Municipality, the respondent
no.1 approached this Court in the above Special Civil Application.
The learned Single Judge was pleased to observe that, ..Though
sufficiently long time has been granted to respondent, no denial to
the above submissions have been made. It would appear that though the
petitioner was granted Sanad by the Government which would have
authorized him to put his cabin at the place so assigned to him, at
the request of Nagarpalika, the petitioner shifted the cabin. From
the place where the cabin was shifted, Nagarpalika removed the cabin
of the petitioner. In view of the above observations, the
learned Single Judge was pleased to allow the petition and to issue
the direction that, ..the petitioner will be permitted to
put his cabin, as per rules, on the land so allotted to him by the
Government. Feeling aggrieved, the Municipality has
preferred the present Appeal.
It
is not in dispute that the piece of land in question is a Government
land. The said piece of land was allotted to the petitioner on
payment of charges for carrying on his profession as aforesaid. It is
also not in dispute that the Municipality has constructed a road
known as Suvidha Path . The disputed cabin is right on
the road. Undoubtedly, it hinders the traffic. Further, the
respondent no.1 does not have a fundamental or statutory right to
carry on business or profession on public land.
In
the circumstances, we find it expedient that the respondent no.1
removes his cabin which is situated within the road line. The
respondent no.1 will, within five days from today, make
application to the Collector, Gandhinagar to provide him alternative
site of suitable size to facilitate him to carry on his profession at
a suitable place. The application so made shall be considered by the
Collector, Gandhinagar within fifteen days from the date of
receipt of the application. In the event, no other suitable site is
available for allotment to the respondent no.1, the respondent no. 1
be informed accordingly. In any event, whether or not he is allotted
another piece of land, the respondent no.1 will remove his cabin from
the disputed spot within one month from today i.e., by
8th September, 2008. If the respondent no.1 fails to
remove his cabin on or before 8th day of September, 2008,
the appellant-Municipality will be at liberty to remove the
respondent no.1 forcibly.
Subject
to the above direction, the Appeal as well as Civil Application is
disposed of.
{Miss
R.M Doshit, J.}
{Sharad
D. Dave, J.}
Prakash*
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