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SCA/15390/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15390 of
2010
=========================================================
YUSUFBHAI
USMANMBHAI LAKHIANI & 1 - Petitioner(s)
Versus
BHAVNAGAR
MUNICIPAL CORPORATION & 4 - Respondent(s)
=========================================================
Appearance
:
MR
PRASHANT DESAI, SR. ADVOCATE with MR AS ASTHAVADI
for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 27/12/2010
ORAL
ORDER
1. The petitioners have
prayed for a direction to the respondents to restore the position of
the graveyard, as it was before the construction of public road
through such graveyard. In short, the petitioners are opposing
construction and maintenance of a public road by Bhavnagar
Municipality through the said graveyard.
2. The petitioners
claim to be belonging to the Memon Community, who has been using the
said land as graveyard, since years. It is the case of the
petitioners that, though, the State Government had passed an order
holding and declaring that such land shall be used, only as a
graveyard land, Bhavnagar Municipal Corporation has constructed a
road through such graveyard, wholly illegally. It is, further, the
case of the petitioners that the procedure under the Town Planning
Act was not followed, before constructing such road.
3. This Court in
Sp.C.A. No.12594 of 2002 had granted stay against vacation of the
said petitioners, who are claiming to be occupying shops and other
premises. However, in Civil Application No.10735 of 2008, filed by
the State Government, the learned Single Judge on 23.10.2008, passed
an order and permitted Bhavnagar Municipal Corporation to complete
the construction of the road, passing through the said area. It also
emerges that the Sunni Muslim Samaj, Bhavnagar, who is administering
the said kabrastan land had filed a Civil Application No.1606 of
2003, seeking permission to be joined as a respondent in the said
petition, which application came to be allowed by the learned Single
Judge of this Court, by an order dated 30.04.2003.
4. It may also be noted
that the Public Interest Litigation bearing Special Civil Application
No. 13799 of 2008 was also filed objecting to the construction of the
road through Kabrastan, which petition came to be disposed of by this
Court, by an order dated 30.12.2008, in the following manner:
“1. This
PIL is filed seeking direction to respondent Nos.2 and 3 restraining
them from further construction/development in Survey No.3A, City
Survey Nos.7617 to 7622 and 7360 at Bhavnagar and other consequential
reliefs.
2. The
contention of the petitioners is that the road has been built by the
respondent authorities illegally which is against public interest.
According to the petitioners, the land in question was under the
control of respondent No.6. Respondent No.6 has not raised any
grievance against the action taken by the respondent authorities.
According to the petitioners, litigations are pending before Civil
Courts as well as before Single Judge of this Court on the same
issue. Therefore, this Court does not want to interfere with this PIL
which has been filed by two individuals and dispose it of without
expressing any opinion.”
5. It is also not in
dispute that the road has already been constructed and is existing
for more than two years now. Under the circumstances, the situation
which emerges is that a Public Interest Litigation, opposing
construction of the road came to be disposed of by the Division Bench
of this Court, road is constructed in the year 2008. Sunni Muslim
Samaj, who claims to be administering the kabrastan land, had
already sought permission to be joined as party-respondent in a
petition. However, the said Samaj did not institute a petition on its
own, opposing construction of the road.
6. This petition is
replica of the Public Interest Litigation which was not entertained
by the Division Bench of this Court. Therefore, entertaining this
petition would amount to reopening the issues by the Single Judge,
which were not entertained by the Division Bench of this Court. The
petitioners, though, belong to the same community, failed to show any
personal right, title or interest in the use of the said land.
7. Under the
circumstances, this petition fails and is DISMISSED.
(AKIL
KURESHI, J.)
Umesh/
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