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SCA/11829/2002 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11829 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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 ?
=========================================================
SAVITABEN
DAHYABHAI SAVARIYA - Petitioner(s)
Versus
MUNICIPAL
COMMISSIONER & 2 - Respondent(s)
=========================================================
Appearance
:
NOTICE
SERVED for
Petitioner(s) : 1,PARTY-IN-PERSON for Petitioner(s) : 1,
MR MM
TIRMIZI for Respondent(s) : 1,
MS MAITHILI MEHTA AGP for
Respondent(s) : 2,
MR ANSHIN H DESAI for Respondent(s) : 3,
3.2.1,3.2.2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 27/06/2011
ORAL
JUDGMENT
1. The
petition is filed praying for following reliefs:-
“20(A)Your
Lordships may be pleased to issue appropriate writ, order or
direction, quashing and setting aside the action of the Resp. No.1 &
2 of not initiating appropriate proceedings against the Resp. No.3
under the law as the same is arbitrary, illegal, null & void.
(B) Your
Lordships may be pleased to issue appropriate writ, order or
direction, directing the Respondent No.1 & 2, to exercise powers
granted under B.P.M.C. Act and under the Prevention of Antisocial
Activities Act against the partners of Resp. No.3 and be further
pleased to direct the Resp. No.1 & 2 to initiate appropriate
criminal proceedings against the Resp. No.3.
(C) Your
Lordships may be pleased to issue appropriate writ, order or
direction, directing the Respondent No.1 & 2 to ensure that the
encroachment are adequately compensated, in the interest of justice.
(D) Your
Lordships may be pleased to direct the Respondents to comply the
consent decree dtd. 28.01.84 passed by the 2nd Jt. Civil
Judge (SD), Junagadh, vide exh.32 in Special Civil Suit No.111 of
1980, by carrying out measurement for the purpose of finding out the
extent of the encroachment carried by the Resp. No.3 over the
Government land pending admission, hearing and final disposal of this
writ petition.”
2. Previously
though the petitioner was represented by an advocate, it appears that
subsequently, the advocate was relieved. The petitioner was not
present before the Court today. Her written arguments dated
15.03.2010 are on record.
3. I
have perused the written arguments, the pleadings on record and heard
Ms.Maithili Mehta, the learned AGP for the State and Mr.Anshin Desai,
learned advocate for respondent no.3. From the prayers, it can be
seen that the petitioner desires that action be taken against
respondent no.3 under Prevention of Antisocial Activities Act. It is
her case that respondent no.3 is a builder and influential person and
is encroaching municipal/Government lands.
4. Mr.Desai,
learned advocate for respondent no.3, however, pointed out that with
respect to the same land which the petitioner alleges that respondent
no.3 has encroached, respondent no.3 had filed Civil Suit being
Regular Civil Suit No.648 of 1992 joining Junagadh Municipality and
State Government as defendants claiming ownership and possessory
rights of present respondent no.3 over the land in question. In such
proceedings also, present petitioner was permitted to intervene and
the suit came to be decreed in favour of present respondent no.3 by
judgment and decree dated 28.04.2010 passed by the learned Principal
Senior Civil Judge, Junagadh. Defendants were prevented from
stopping the plaintiffs from carrying out construction on the said
land. He further stated that against the judgment and decree dated
28.04.2010, the Corporation also preferred Regular Civil Appeal No.37
of 2010 which came to be dismissed by judgment dated 27.09.2010
passed by the learned Additional District Judge, Junagadh.
5. Mr.Desai,
learned advocate, pointed out that the present petitioner had filed a
criminal case being C.R. I-12 of 2002 alleging commission of offences
punishable under Sections 418, 420 and 423 etc. of Indian Penal Code
which was summarily dropped and the summary was also finally accepted
by the High Court.
6. The
State Government has also filed a reply opposing the petition and
contending that no case for taking action under Prevention of
Antisocial Activities Act is made out.
7. When
the Civil Court has expressed its opinion on the nature of possession
and title of respondent no.3 with respect to the land in question, I
am of the opinion that the issue is substantially narrowed down. It
cannot be stated that respondent no.3 is an encroacher over the land
in question. In any case, whether action should be initiated under
the provisions of Prevention of Antisocial Activities Act or not must
depend on facts and circumstances of a case and it is within the
power subjective satisfaction of the Competent Authority whether such
an action should be initiated or not. I do not see how the present
petitioner as a citizen can insist that action must be taken by the
Government under the Prevention of Antisocial Activities Act,
particularly when no direct injury or injustice to her is shown.
In
the result, the petition fails and the same stands dismissed. Rule is
discharged. Interim relief, if any, granted earlier stands vacated.
(Akil
Kureshi, J.)
rakesh/
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