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Gujarat High Court
Judgename :JAYANT PATEL
TINABHAI LAKHMANBHAI HARIJAN - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 19260 Of 2006
Decided On : 09/11/2006
Encroachment - Land Dispute - Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors. - AIR 1986 SC 180, 1985 (3) SCC 545, Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and Ors. - 1997 (3) GLR 1998, Shailesh R. Shah Vs. State of Gujarat - 2002 (3) GLR 2295
Fact of the Case:
The petitioners sought to quash a notice for removal of encroachment made by constructing huts and challenging the notice for removal of encroachment over land reserved for a garden. The court found that the petitioners did not have title over the land and were encroachers over public property.
Finding of the Court:
The court held that the petitioners cannot assert a right to alternative land and that the encroachment over public property cannot be permitted. It also emphasized the duty to protect public property and observed that providing alternative accommodation is not a universal principle.
Issues: Title over the land, encroachment over public property, right to alternative land, duty to protect public property, providing alternative accommodation
Ratio Decidendi: The court's decision was influenced by the principle that encroachment of public property obstructs planned development and the duty to protect public property. It also considered the lack of universal application for providing alternative accommodation to encroachers.
Final Decision: The court discharged the rule in one case and dismissed the others, granting six weeks for the encroachers to vacate the land, with the option for authorities to take steps for removal of encroachment if the undertaking is not filed within the specified time.
( 2 ) THE petitioners of Special Civil Application No. 19260 of 2006 and others have preferred the petitions for challenging the notice dated 14. 08. 2006, issued by respondent No. 2 for removal of the encroachment made over the land, which is reserved for garden.
( 3 ) THE learned counsel appearing for the petitioners Ms. Shah on 08. 09. 2006 had submitted that similar matter is also pending before this Court being Special Civil Application 6937 of 1999 and therefore, this Court on 08. 09. 2006 had passed the order directing Special Civil Application No. 6937 of 1999 also to be listed on 11. 09. 2006, i. e. today and accordingly, all the matters are listed today.
( 4 ) THE contention raised on behalf of the petitioners in Special Civil Application No. 6937 of 1999 is that the land is under the control of the Panchyat and the principle as laid down by the Hon ble Supreme Court in case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors. reported at AIR 1986 SC 180=1985 (3) SCC 545 are not considered and it has been submitted that nobody can be deprived of their shelter without affording them the opportunity of being heard. The other individual circumstance of the concerned petitioners as prevailing in the year 1999 are mentioned in the petition showing that if they are removed or they are required to vacate, hardship will be caused to them. The petitioners have also relied upon the said decision of the Apex Court in case of Olga Tellis and Ors. (supra ). It has been contended that the impugned action of issuance of notice calling upon the petitioners to vacate is illegal and arbitrary and deserves to be quashed and set aside.
( 5 ) IT may be stated that pending the petition, the application being Civil Application No. 10148 of 2006 is preferred in Special Civil Application No. 6937 of 1999 by the said petitioners for joining Ahmedabad Urban Development Authority as party respondent on the ground that Ahmedabad Urban Development Authority has also issued notice for removal of construction and therefore, Ahmedabad Urban Development Authority should be joined as party to the proceedings. The perusal of the said notice issued by the AUDA shows that as alleged in the notice, the land is reserved for garden as per Town Planning Scheme No. 42 and Final Plot No. 261. This Court has issued notice in the said application to AUDA. However, nobody has appeared for AUDA when the matter is taken up for hearing.
( 6 ) MS. Shah, learned counsel appearing for the petitioners in Special Civil Application No. 19260 of 2006 and others has adopted the submissions on behalf of the petitioners of Special Civil Application No. 6937 of 1999.
( 7 ) HAVING considered the above, it appears that there is no dispute on the point that the petitioners are not having title over the land. It further appears from the report of the Gram Panchayat as well as of the AUDA that initially, the land was nearby the lake and now as the land is reserved for garden and the petitioners are encroachers over the land in question. It may be that at the relevant point of time, due to their financial condition or otherwise, they constructed their shelter and occupied for a period of about 20 years as sought to be canvassed on behalf of the petitioners, but when the authorities are taking steps for removal of such encroachment, the petitioners cannot assert as of right, that alternative land must be provided to them and till the alternative land is provided, they shall not vacate. Similarly, when it is an encroachment over the public property, if the Court gives indulgence and directs the authority to provide alternative land, such would not be in the larger public int
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