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SCA/212/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 212 of 2008
With
SPECIAL
CIVIL APPLICATION No. 213 of 2008
To
SPECIAL
CIVIL APPLICATION No. 227 of 2008
=========================================================
SURESHCHANDRA
DEVILAL TELI & 15 - Petitioner(s)
Versus
SURAT
MUNICIPAL CORPORATION THROUGH COMMISSIONER & 3 - Respondent(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Petitioner(s) : 1 - 16.
MR PRASHANT G DESAI for Respondent(s) :
1,
None for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 11/08/2008
COMMON
ORAL ORDER
The
petitioners by this petition have challenged the action on the part
of the Corporation for removing the larries of the petitioners from
the place, where it was occupied, and it is prayed by the
petitioners that the action be declared illegal, or in alternative
Corporation, may be directed to consider the request of the
petitioners for giving alternative space in the nearby area, on such
terms and conditions as they deemed fit.
Heard
Mr. Suthar with Mr. Majmudar learned Counsel for the petitioners and
Mr. Pandya for Mr. Desai learned Counsel for the respondent.
Upon
hearing learned Counsel appearing for both the sides, it appears
that the case of the petitioners are that they were having
authorised licence, and they were hawking larries on particular
area, which as per the petitioners is a private land.
It
is also submitted that their larries were not hindrance to the
traffic, and in spite of the same, Corporation has taken action for
removal of such larries, and without giving any notice they have
been removed. Therefore, the action is illegal and this Court may
interfere.
It
is alternatively submitted by the learned Counsel for the
petitioners that in similar matter this Court had made observations
in Special Civil Application No. 19412 of 2007 and allied matters
and Special Civil Application No. 3890 of 1999 and others, copies
whereof are produced at page 97 and 101 of the petition, whereby the
liberty was given to the petitioners to apply for licence in the
hawking zone and Corporation was directed to consider the same. It
has been submitted that in case, if this Court is not inclined to
consider the right of the petitioners for occupying over the land,
or this Court is not inclined to interfere with the action of the
Corporation of removing the petitioners from the land in question,
such liberty may be given to the petitioners for applying to the
Corporation for other hawking zone, and preferably in the nearby
area. It has been submitted that this Court may at least consider
the matter to that extent.
On
behalf of the respondent Corporation learned Counsel by relying upon
the affidavit in reply submitted that the petitioners had occupied
footpath, and the road area. Therefore, there were complaints
received from the residents of the nearby area. As the occupation by
the petitioners was causing hindrance to the traffic, the action has
been taken by the Corporation, in order to show location over which
the petitioners were occupying, learned Counsel has relied upon the
map, produced at page 112 and it was submitted that the same is TP
road, and it was not private land. It has also been submitted that
just adjacent to that TP road, the area is reserved for garden and
play ground and is owned by Corporation. Therefore, the contention
of the petitioners is not correct to the extent that they had
occupied over private land. It was therefore, submitted that the
petitioners have no right to make encroachment over the land, and if
the petitioners applies for licence for the hawking zone, as per the
policy of the Corporation, the mater shall be considered in
accordance with law.
It
appears from the affidavit in reply and map produced at page 112
that the place over which the petitioners were occupying is a part
of TP road. No authenticated documents or any material are produced
by the petitioners to show that the land is owned by any private
persons or that such private persons have authorised the
petitioners to occupy by larries or otherwise for doing business.
Therefore, if the petitioners have occupied over the land of TP
road, and if the Corporation has taken action for removal or
eviction though on account of the traffic problem or otherwise, such
action cannot be said to be illegal or arbitrary on the part of the
Corporation. Therefore, the petitioners would not be entitled for
relief as prayed for challenging the action of the Corporation for
removal and the consequential thereto.
However,
it appears that it is an admitted position that the petitioners are
already removed from the road for the land in question. Therefore,
if the petitioners are desirous to hawk in the hawking zone area, it
will be required for the petitioners to apply and if such
application is made, it would be required for the Corporation to
consider the same in accordance with law as per the policy
prevailing from time to time. Since up till now neither petitioners
had made any application nor there is consideration of the same by
the Corporation, I find it proper to leave the matter at that stage,
without observing further on the said aspect. Suffice to state that
if such application is made for hawking licence, and in the hawking
zone, the Corporation shall consider the same in accordance with
law.
Mr.
Suthar learned Counsel for the petitioners states that in view of
the aforesaid observations, the petitioners shall make an
application within a period of 15 days.
If
such application is made, the same shall be considered within a
period of four weeks from the receipt thereof by the Corporation in
accordance with law.
Subject
to the aforesaid observations, no case is made out for interference,
therefore, rejected. Direct service is permitted.
(JAYANT PATEL, J.)
Suresh*
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