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Gujarat High Court
Judgename :B.C.PATEL, C.K.BUCH
DEVENDRA JASHUBHAI RAVAL - Appellant
Versus
AHMEDABAD MUNICIPAL CORPORATION - Respondent
S.C.A.9843 of 2000
Decided On : 12/13/2000
Falsity emerges from the pleadings, and if it is confirmed after evaluating the case put forward by the resisting party and the documents produced by both the sides, then any type of writ, either prohibitory or mandatory should not be granted, otherwise every such person would be tempted to rush to this Court by invoking jurisdiction under Art. 226 of the Constitution of India.
[Para 9(iv)]
Court has considered the conditions enumerated in the licence initially granted to the petitioner and others and condition No. 23 is very clear. This licence-parvana can be equated with agreement bi-parte. If the Court is satisfied that there is a breach of more than one conditions material in nature, then it would not be legal or proper to hold that action of AMC is discriminatory or in violation of principles of natural justice.
[Para 10]
Even if Court agree to the principle that by putting reasonable restriction within the meaning of Art. 19(6) of the Constitution or while taking action concerning a right to life envisaged under Art. 21 of the Constitution, the authority must Act in a manner which can be said to be just, reasonable and fair even then, the present petitioner and others have no good case.
[Para 13(i)]
If commercial activities are permitted adjoining to the garden, the very purpose of garden is frustrated and, therefore, permitting commercial activities adjoining to the garden is also not in public interest. By committing breach of the provisions contained in the Gujarat Town Planning and Urban Development Act, the Corporation permitted to keep larries in a place meant for garden, by reducing the size of the garden.
[Para 13(ii)]
In Courts opinion, impugned action cannot be said to be violative of Art. 21 of the Constitution since the area of law garden is excluded from the hawking zones as notified in the Scheme. Policy of AMC was very-well before the petitioner and others. Ignorance pleaded, is not found acceptable. Court also do not agree that the alleged encroachment or even business of the petitioner and others was under sheer compulsion or was a compelling necessity.
[Para 13(iii)]
The only direction which can be given by this Court is that hawker and/or pitch vendor shall individually as a member of the Association, make application before the appropriate authority, if he so desires, for appropriate relief and/or for alternative place convenient to the Corporation in the hawking zone. It is further observed that if such an application is made, the same shall be decided on merits and in accordance with law. Hence, this petition is also dismissed on the same reasons of no merit.
[Para 19]
( 1 ) RULE. Learned counsel Mr. Amit Panchal appears and waives service of Rule in both the petitions on behalf of the respondents.
( 2 ) THESE two writ petitions are moved under Article 226 of the Constitution of India by the petitioners of both the petition. The petitioner of Spl. C. A. No. 9843/2000 has prayed to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions declaring the action of the respondent Ahmedabad Municipal Corporation (hereinafter referred to as "amc" or the "corporation") of removing the permitted articles/structures from the area being No. 3/1 of Larri Stand No. 3 in Final Plot No. 430 (Part) of Ellisbridge TP Scheme No. 3 of the petitioner including paving, electrical installations, water connection and fixtures, as being illegal and unconstitutional and has also further prayed to restrain the respondent Corporation from obstructing the petitioner from carrying on business in acordance with the permissions and resolutions of the respondent in this behalf from time to time. So far as the petitioner of Spl. C. A. No. 7823/2000 is concerned, it has been prayed to issue a writ of mandamus directing the respondents to implement the scheme (hereinafter referred to as the compromise formula") approved by this Court on 22. 4. 1987 and approved by the Supreme Court of India on 6. 1. 1988 as referred to in the said petition. It has been also prayed that a special body to implement the aforesaid compromise formula within existing administrative structure of the respondents and further prayed to restrain the respondents from removing the hawkers doing business through larries, gallas and pitches in hawking zones declared in the compromise formula.
( 3 ) SPL. C. A. No. 7823 of 2000 is filed by Rajendrasinh Darshansingh Punjabi, General Secretary of Akhil Gujarat Lari Galla Patharnawala Shramik Samaj, representing the hawkers doing small business thorugh larries gallas and patharnas on the Road and streets in the city of Ahmedabad, praying for a writ of mandamus or like writ or diection directing the respondents to implement the compromise formula approved by the Honble High Court of Gujarat on 22. 4. 1987 and approved by the Honble Supreme Court of India on 6. 1. 1988. The petitioner has further prayed to restrain the respodents from removing the hawkers doinig business through larries, gallas and pitches in hawking zones declared in the compromise zone.
( 4 ) AT the time of admission hearing of both these petitions, learned counsel appearing for the parties jointly submitted that both these petitions should be heard finally and same can be disposed of on merits without entering into other procedural formalities. Hence, at the request of learned counsel appearing for the parties, we have heard both the petitions simultaneously on merits and in view of the contentions raised in the petitions and reliefs prayed, though the reliefs prayed appear to be of different nature,but in substance, the reliefs prayed for are similar in nature as issues involved in both these petitions are almost similar. The difference is of a degree and not of kind and there is no basic difference in the reliefs claimed and hence, we dispose of both these petitions by this common judgment on merits in limine.
( 5 ) (I ). THE facts revealed in both the petitions are having some different shades. We would like to narrate facts in brief for the sake of convenience. The petitioner of Spl. C. A. 9843/2000 is one of the allottees of Larri Stand No. 3 situated near Law Garden in Final Plot No. 430 of T. P. Scheme No. 3 of Ellisbridge. He has challenged legality of the action of the respondent Corporation of removing permitted articles and structures from his larri-stand No. 3/1 allotted to him contending that this action of the respondent Corporation is illegal, harsh, excessive, without jurisdiction and without authority of law and is in breach of principles of natural justice. I
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