Petition Disposed of

M.S. Shah, J.—This petition under Article 226 of the Constitution challenges the notice-cum-order dated 01/17.02.2007 (Annexure-A) passed by the Chief Officer of Padra Municipality—Respondent No. 3 herein seeking to remove the petitioner’s cabins situated at Gandhi Chowk, Padra, District Vadodara.

2. The facts leading to filing of this petition, as averred by the petitioner, are as under:—

The petitioner and his son are doing the business of selling shoes/footwear in Cabin Nos. 107 and 108 which are situated at Gandhi Chowk in Padra, District Vadodara. According to the petitioner, Cabin No. 107 was given to the petitioner on licence basis by Padra Nagar Panchayat, which was thereafter converted into Municipality. Similarly, Cabin No. 108 was given to the petitioner on licence basis by Padra Nagar Panchayat. The petitioner’s case is that on account of objection lodged by Bahubal Rasiklal Shah against the licence granted in favour of the petitioner, the Vadodara District Panchayat raised an issue about the ownership of the land in question. That controversy ultimately reached this Court in Special Civil Application No. 2601 of 1979, which came to be disposed of by judgment dated 11.01.1981 directing the Additional Development Commissioner, Gujarat State to decide the question whether the lands on which the two cabins are situate fall within the category of land recovered by Section 98(1) of the Gujarat Panchayats Act, 1961 and on the basis of that finding, to determine the question whether the Panchayat was entitled to renew the licence without obtaining the prior permission of the competent authority as required by Section 98(1) of the said Act. The Additional Development Commissioner, thereupon, passed order dated 30.10.1982 remanding the matter to the District Panchayat. The District Panchayat thereafter passed the order in June 1986 holding that the appellant and respondents have not produced any evidence in respect of disputed Survey No. 98/1 and that, therefore, the said site is not vested and approval is not necessary. The Appeal Committee, District Panchayat held that further proceedings are required to be taken as per the Rules and the appeal of Bahubal Rasiklal Shah came to be rejected. The notice dated 01/17.02.2007 by the Chief Officer of the Padra Municipality under Sub-section (2) of Section 185 of the Gujarat Municipalities Act, 1963 states that the allotment of temporary cabins to the petitioner on the land in question is tobe cancelled and that obstructions on the land in question are required to be removed for the purpose of smooth traffic movement.

3. In the affidavit-in-reply dated 06.07.2007 filed by the Chief Officer of Padra Municipality—Respondent No. 3 herein, it is stated that the lands on which Cabin Nos. 107 and 108 are put up were allotted to the petitioner subject to the condition that the allotment is to be renewed every year. It is further stated that vide Government Resolution dated 05.03.2001, the Collector and the Directorate of Municipality were directed that the lands of the Municipality should not be given to the public at large on lease, nor should they be sold. The Directorate of Municipality and the Collector, in turn, instructed the Padra Municipality on 01/02.05.2002 to take back the lands allotted earlier.

4. We have heard Mrs. Sangeeta Pahwa, learned Advocate for the petitioner, learned Government Pleader for the State Government, Collector, Vadodara and Mr. V.H. Desai for Respondent No. 3, Padra Municipality.

5. Mrs. Pahwa, learned Advocate for the petitioner has submitted that the provisions of Sub-section (1) or Sub-section (2) of Section 185 can be invoked only if the obstruction or encroachment is made after establishment of the Municipality, but the petitioner had put up two cabins when the Nagar Panchayat was in-charge of the affairs of the area covered by two cabins and that, therefore, the Chief Officer had no authority or jurisdiction to issue any notice under Sub-section