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Gujarat High Court
Judgename :A.P.RAVANI, H.L.Gokhale
DALVADI LALJIBHAI GATORBHAI - Appellant
Versus
STATE - Respondent
S.C.A. 13932 of 1993
Decided On : 02/28/1994
Employment and Service matter – Constitution of India, 1950 – Article 227 – Gujarat Secondary Education Act, 1972 – Section 36 – Salary allowances – Seniority list of teachers, qualifications – Terminate the services – Compensation – Challenged the Declaration granted by the Tribunal to the effect that respondent no. 1 therein is entitled to receive compensation equivalent to 13 months salary including allowances on the basis of the last pay, is challenged whereas in special Civil Application declaration granted by the Tribunal to effect that the respondent No. 1 therein is entitled to receive the compensation equivalent to 16 months salary including the allowances on the basis of the last pay she was receiving in the School is challenged. Both these petitions arise out of the common order dated February 14, 1984 and, therefore, they are being disposed of by this common judgment – Held, Impugned order was passed by the Tribunal with the consent of the petitioner and the petitioner is, therefore, not entitled to challenge the same before this Court – Counsel for the petitioner referred to the affidavit of Smt. Minalben R. Thakore filed before this Court and contended that no statement was made by Smt. Minalben before the Tribunal that she had no objection to the order regarding compensation to be paid to the applicants being incorporated in the judgment and the impugned order should not be treated as one having been passed on the concession of the petitioner. This submission cannot be entertained in view of the decision of Supreme Court rendered in the case of state of Maharashtra v. Ramdas Shrinivas Nayak and Anr. , AIR 1982 SC 1249. The statement of fact as to what transpired at hearing, recorded in the judgment of the Court or the Tribunal is conclusive of the fact so stated and no one can contradict such statement by affidavit or other evidence – Only course open to mrs. Minalben was to call the attention of the learned Member of the Tribunal who made the record, to the fact that the statement made with regard to her conduct was a statement that had been made in error. That was the only way to have the record corrected and that step having not been taken by Smt. Minalben, the matter must necessarily end there. No ground is made out by the petitioner or Smt. Minalben to permit the petitioner to resile from the concession which was given by Smt. Minalben on behalf of the petitioner before the Tribunal. Therefore, as the impugned order is based on the concession made on behalf of the petitioner, the petitions are liable to be dismissed on this additional ground also – Court not find any merits in both these petitions – Petitions fails.
( 1 ) RULE. Mr. R. M. Chhaya, learned A. G. P. waives service of rule on behalf of respondent Nos. 1 and 4, i. e. , State Government of Gujarat and Shri Vipul Mitra, District Collector, Surendranagar, respectively. Mr. P. M. Thakkar, learned Advocate, waives service of rule on behalf of respondent Nos. 2 and 3, i. e. , Surendranagar Joint Municipality, through its Administrator, and Surendranagar Joint Municipality through its Chief Officer, respectively. At the request and with the consent of the learned Advocates appearing for the parties rule issued in the petition is ordered to be heard today.
( 2 ) PETITIONERS challenge the constitutional validity of Secs. 4 and 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, and pray that the respondents be restrained from evicting the petitioners from the space occupied by them in the old vegetable market, near Shravan Talkies, Main Road, surendranagar. The petitioners also pray that the repondents be directed to restore possession of the space occupied by the individuals whose names are mentioned in annexure-A to the petition. The petitioners further pray that the respondents be restrained from preventing the petitioners from carrying on their business from the space in question.
( 3 ) INITIALLY the petition pertained to 62 petitioners. By way of amendment, the scope of the petition has been extended to cover 42 other individuals whose names are shown in Annexure-A to the petition. According to the petitioners, they carry on business of selling vegetables in the old vegetable market. It is the case of the petitioners that the space is rented to them. It is claimed that they are carrying on business at this place for last about 30 (thirty) years or more. They are carrying on this business on raised floor, i. e. , ota. As averred in the petition on December 15, 1993 the respondents demolished the otas and orally told the petitioners and others that they will not be allowed to do their business at the same place in the vegetable market.
( 4 ) FEELING aggrieved by the aforesaid action of the respondents, the petitioners have approached this Court on December 16, 1993. This Court (Coram : A. P. Ravani and D. G. Karia, JJ.) passed the following order :"leave to amend. Notice returnable on 27-12-1993. Respondents are directed to maintain status quo in respect of the stalls/premises rented and/or allotted to the petitioners and to all other persons whose names are mentioned in Annexure"a", and are further restrained from preventing the petitioners and all other persons whose names are mentioned in Annexure "a" from doing their business at the places in question. "in view of the aforesaid order the respondents have refrained from taking further actions. However, before the petition was moved and the interim order passed as stated above was served upon the respondents, some of the petitioners were disturbed from carrying on their business and the raised floors (ota) were demolished or damaged.
( 5 ) IT is the contention of the petitioners that they have been carrying on their business at this place for last more than thirty years; that they have been paying rent to the Municipality; they have produced the receipts issued by the Municipality; july 977 that they belong to Satwara, Koli, Muslim or Ghanchi communities which are socially and educationally backward class communities; that they are carrying on their business at such place out of economic compulsions; that it is their only means of livelihood; that if they are not allowed to carry on their business at the place their means of livelihood would be snatched away; if this is permitted to be done more than one hundred families will be uprooted economically and it will have adverse socio-economic repercussions; that they were carrying on business at the place in question without contravening any of the provisions of law; that the provisions of Secs. 4 and 5 of the Gujarat Public Premises (Evict
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