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2009 Supreme(Guj) 570
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE K.A.PUJ
YOGESH MADANLAL SHARMA & 3 - Petitioners
Versus
COLLECTOR & 3 - Respondents
SPECIAL CIVIL APPLICATION No. 5150 of 2004
With
SPECIAL CIVIL APPLICATION No. 6813 of 2009
Decided On : 09/10/2009
MR ASHISH M DAGLI for Petitioner(s): 1 - 2, 2.2.1,2.2.2 - 4.
GOVERNMENT PLEADER for Respondent(s): 1, 3,
NOTICE SERVED BY DS for Respondent(s): 1 - 4.
MR YM THAKKAR for Respondent(s): 2,
MR NM KAPADIA for Respondent(s): 4,
Headnote:
Constitution of India, 1950 - Article 226 - Bombay Land Revenue Code, 1879 - Section 66 - Petitioners are parties to the earlier petition, the issue stands concluded qua the petitioners and it is not open for them to reagitate the very same issue again in this petition - It is only because of the interim protection being enjoyed by the petitioners, the respondent authorities could not take any action till this date - Removal of encroachment - Demolition of construction on public land - Petitioners failed to establish any ownership right on such acquired land - On the contrary, it has come on record that the State Government has paid requisite compensation to the land owners at the relevant time - Appeal - Held, Construction alleged to have been approved by the authority is highly disputed and so-called permission letter is not found on the record of the Nagarpalika - Coupled with all these facts and circumstances, the Collector has considered all relevant aspects of the matter and passed a detailed and speaking order after hearing all concerned parties - This report and/or order of the Collector has even come on the record of Special Civil Application and it stood the test of scrutiny by the Court - Justification to interfere in the order of the Collector nor the petitioners deserve any protection from the Court against removal of encroachment ad/or unauthorised construction on public road as pointed out by the Collector - Petitions dismissed.
(Per : HONOURABLE MR.JUSTICE K.A.PUJ)
1. Since common issue is involved in both these petitions and since both these petitions were heard together, the same are being disposed of by this common judgment and order.
2. The Special Civil Application No.5150 of 2004 is filed by four petitioners challenging the order passed by the District Collector, Banaskantha on 2.4.2004 holding therein that on Dhanera-Deesa road, encroachment was made by the petitioners and hence the same are required to be removed by following due procedure. It was also ordered that the procedure under Section 66 of the Bombay Land Revenue Code be initiated for breach of conditions and accordingly intimation was given to the Dy. Collector to initiate proceedings.
3. The Special Civil Application No.6813 of 2009 is filed by the petitioner challenging the notice dated 19.6.2009 issued by Dhanera Municipality for removal of encroachment on Dhanera-Deesa road.
4. In Special Civil Application No.5150 of 2004, this Court has passed an order on 26.4.2004 observing therein that since the impugned order has been passed in pursuance of the direction given by this Court in Special Civil Application No.2425 of 2004, it would be proper to place this matter alongwith Special Civil Application No.2425 of 2004.
5. The Special Civil Application No.2425 of 2004 was heard and disposed of by the Division Bench of this Court on 13.5.2009. Since no one on behalf of the petitioners was present on that day, the petition was dismissed for default. After its restoration, notice was issued for the first time on 26.6.2009. Ad-interim relief restraining the respondent from demolishing disputed construction was granted. The same is continued till petition is finally heard.
6. In Special Civil Application NO.6813 of 2004 notice was issued on 8.7.2009 and it was ordered to be heard alongwith Special Civil Application No.5150 of 2004. Ad-interim relief was granted restraining the respondent from demolishing disputed construction. This interim relief is continued till the petition is finally heard.
7. It is the case of the petitioners of Special Civil Application NO.5150 of 2004 that they have purchased the land in question from the respondent No.4 i.e. Rasiklal Hansraj Shah, who is the petitioner in Special Civil Application No.6813 of 2009. The petitioner No.1 has purchased the land being Survey No.161/1/A of Survey No.3116, by entering into three separate sale deeds. The petitioners No.2 to 4 have also purchased the land by entering into separate registered sale deeds. The petitioner No.1 has started his hospital on the said land in the name and style of Dr. Sharma Arogyanidhi Hospital. The petitioner No.1 is said to have obtained all necessary permissions and also stated to have got the plan approved. The petitioner has been paying water tax, house tax and other leviable taxes as and when demanded. In 1994 the petitioner No.1 was granted permission for construction and while granting permission it was stated that the petitioner could start his construction by keeping 27.5 ft distance from the center point. It has also been decided to have the width of road of 55 ft. and, therefore, the permission was granted for construction at a distance of 30 ft. away from the center point as per the permission on the North side from plot of the petitioner. The petitioner constructed the hospital having 10 bed including facilities of x-ray, laboratory, medical store, canteen and general store.
8. It is alleged in the petition that because of certain internal disputes and only with a view to pressurize the respondent No.4, a public interest litigation was filed in this Court, being Special Civil Application No.2425 of 2004, wherein it was contended that some encroachment was made on Deesa-Dhanera road and because of that people could not get the free access to their house and they also create traffic problems. The notice was issued in the said petition on 24.2.2004 to the petitioners
