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SCA/679/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 679 of 2008
With
SPECIAL
CIVIL APPLICATION No. 681 of 2008
To
SPECIAL
CIVIL APPLICATION No. 694 of 2008
=========================================================
RAVJIBHAI
NANJIBHAI & 14 - Petitioner(s)
Versus
THANGADH
NAGARPALIKA - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Petitioner(s) : 1 - 15.MR YJ PATEL for Petitioner(s) : 1 - 15.
MR
DHAVAL D VYAS for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 04/08/2008
COMMON
ORAL ORDER
In
all the petitions, the prayer is for appropriate direction to the
respondent-Municipality to provide space to the petitioners to do
their business in new shopping centre, which is being constructed by
them, and alternatively it is prayed to provide any other suitable
place.
Heard
Mr. Majmudar learned Counsel for the petitioners and Mr. Vyas
learned Counsel for the respondent.
The
contention raised on behalf of the petitioner is that the
petitioners were in possession of Oata, and they have been evicted
without giving any prior notice, such
Oata was also demolished. It is also submitted that in case
of shop holders, this Court (Coram:A.S. Dave,J.) in Special Civil
Application No. 13974 of 2007 directed for consideration of their
claim in the shopping centre, which is to be constructed by the
Municipality and therefore, it has been submitted that the present
petitioners may be given same treatment as have been given to the
person, who had shops in the vegetable market. It was also submitted
that the petitioners are ready to pay price by submitting their
offer for shops in the said shopping centre.
The
learned Counsel for the petitioners submitted that factum of filing
of Civil Suit before the Civil Court at Chotila has been mentioned
in the petition. It was mentioned by the learned Counsel for the
petitioners that if this Court entertains the petition, the
petitioners shall withdraw the Civil Suit. But thereafter, the
learned Counsel by relying upon the statement made in the petition
submitted that the declaration is made in the petition at paragraph
No. 4, that the petitioners also undertakes to withdraw the
aforesaid Regular Civil Suit filed by them, if required. He
submitted that though there is alternative
prayer made in the petition for allotment of the suitable space,
which as per the affidavit in reply of the respondent-Municipality,
can be considered, the petitioners are not desirous to have
the alternative space, but are only desirous to have
claim in the shopping centre. Therefore, this Court may consider the
matter accordingly. It was also submitted that the petitioners now
is not desirous to withdraw the Civil Suit, which is preferred by
them. Hence, this Court may consider the matter accordingly.
Mr.
Vyas learned Counsel for the respondent-Municipality submitted inter
alia that the suit is preferred for the same relief and the other
shop holders in the vegetable market were also there, who have not
preferred petition. He submitted that shop holders having vegetable
market are differently situated than the petitioners. So far as the
allotment of the alternative
space of Oata is concerned, he submitted that in paragraph No. 13 of
the affidavit in reply, the alternative place is already available
in new vegetable market, which is located, at approximately 500
meter away from the old market. Therefore, if the petitioners
applies for allotment of Oata/space, the matter can be considered in
accordance with law, including by inviting competitive bidding. He
therefore, submitted that the Municipality is not in a position to
give the same treatment to the petitioners as were
given to the shop holders.
It
appears that the conduct on the part of the petitioners appear to be
of testing the Court, once before the Civil Court by preferring
Civil Suit in which, no relief is granted, and the second is by
filing present petitions wherein the statement made is of
undertaking to withdraw the Civil Suit. This Court by relying upon
the said statement issued notice vide order dated 30.1.2008, and it
appears that when this Court prima facie expressed
the view before dictation of the order, the petitioners have shown
non-willingness to abide by the statement of withdrawal of the suit.
The aforesaid conduct on the part of the petitioners if encouraged,
would result into misuse of the process of law by testing the Court
before different forum. The litigant, who has already resorted to
one remedy normally can not simultaneously
resort to other remedy for the same cause, unless proceedings are
terminated before the at least one forum. Further, if the litigant
has declared before the Court that he undertakes to withdraw the
earlier proceedings, cannot be permitted to back out at the later
stage from such declaration, more particularly after this Court
having entertained the
matter. If such is permitted, it would be misused of the process of
law, and also would leave room for taking undue benefits of the
situation, which cannot be countenanced.
Apart
from the above, even on merits, except receipt shown
for charging certain amount for utilisation of Oata, there is no
other material. No vested rights can be read in favour of the
petitioners on the ground as sought to be canvassed. Merely because,
the petitioners were alloted Oata during particular period in the
old market, would not give right to the petitioners to claim
alternative shops in the
shopping centre, which is to be constructed by Municipality.
Further, in any case the Municipality has already declared before
this Court for considering their case, if applied for allotment of
the space in the new vegetable market. The petitioners who were
occupying Oata cannot be said as similarly situated with those
persons, who had already shops in the vegetable market. Therefore,
the ground of discrimination or parity as sought to be canvassed
cannot be accepted. As the petitioners declared before the Court,
alternative prayer
is not pressed and the only initial prayer is pressed, which if
considered in view of the observations made hereinabove, cannot be
accepted, since the petitioners are not similarly situated, nor such
right can be claimed by the petitioners. Merely because for some
time, the Oatas were alloted and some charges were collected by the
Municipality, no such right would stand created
in the property as sought to be canvassed.
Under
these circumstances, no case is made out for interference,
therefore, all the petitions are rejected.
(JAYANT PATEL, J.)
Suresh*
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