Natubhai Amthabhai Patel & 5 Other(S) vs State Of Gujarat & 2 Other(S)

Biren Vaishnav, J

By this petition under Article 226 of the Constitution of India, the petitioners have challenged the notices issued by the Corporation on 03.03.2017 and 07.03.2017 by which the petitioners who are shop owners on the lands in question have been removed and their structures demolished on the ground that there are encroachments on the land in question on public road.

Mr. Anshul Shah, learned advocate appearing for Mr. S.P. Majmudar, learned advocate for the petitioners would take the court through the notices dated 03.03.2017 and 07.03.2017 and submit that not even a modicum of notice was given prior to the demolition of structures in question. He would also invite the attention of the court to the order passed in the rent suit filed between the petitioners and the trust namely the Golai Mata Mandir on whose land the shops are situated. The submission of Mr. Anshul Shah, learned advocate is that in view of the observations made in the order of the interim injunction where the District Collector is the trustee of the temple it was incumbent upon the authorities to give notice and/or take into consideration the representation made by the petitioners before acting high handedly in demolishing the premises.

2.1 The other submission on behalf of the petitioners made by Mr. Shah is that the notice dated 07.03.2017 recites the provisions of section 10D of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 wherein it is stated that the certificate under Section 10D shall be given. When read with Section 446 of the Gujarat Provincial Municipal Corporation Act (for short 'the Act') it is the submission of Mr. Shah that rather than demolish the structure, if it was in a dilapidated condition on issuance of a certificate from the landlord, necessary repairs could have been carried out by the petitioners. Reliance has been placed in the case of Baroda Municipal Corporation vs. Heirs of the Deceased Shah Kanaiyalal Jethalal reported in 1994(1) GCD 916.

Ms. Priyanshi Chandarana, learned advocate appearing for Mr. Parth Bhatt, learned advocate for the Corporation would submit that reading the notices would indicate that the provisions of Section 231 of the Act were invoked. The photographs have been shown to the court which according to the respondents would indicate encroachments on public road. As far as the submission made by learned counsel for the petitioner with regard to put up shops on the land which yet remains within the control of the trust, it is her submission that in the event permission is sought for, the Corporation would consider such request on behalf of the landlord since the petitioners are only trustees of the land of the trust in question.

Perusal of the order of the rent suit would indicate that the petitioners herein seem to be blowing hot and cold inasmuch as it was the specific contention of the petitioners in the rent court that they are not governed by the provisions of the rent act. Even otherwise what is evident on perusal of the affidavit-in-reply and the photographs annexed with the reply of the Corporation is that the structures were put on a road a public street connecting Khanderao market road to the Jayratna building crossroads which was causing serious congestion and bottle neck to the traffic on public road.

Reading Section 231 of the Act which is reproduced hereinbelow would make it clear that the Corporation is empowered to remove such structures causing encroachments on the land in question.

"231. The Commissioner, may, without notice, cause to be removed-

(a) any wall, fence, rail, post, step, booth or other structure whether fixed or moveable and whether of a permanent or a temporary nature, or any fixture which shall be erected or set up in or upon or over any street or upon or over any open channel, drain, well or tank contrary to the provisions of this Act after the appointed day;

(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act;

(c) any article whatsoever hawked or exposed for sale in a public place or in any public street in contravention of the provisions of this Act and any vehicle, package, box or any other thing in or on which such article is place."

It will be apt to consider the decision of the Apex Court in the case of Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Others reported in 1997(11) SCC 121 and observations made in para 10 thereof which is reproduced hereinbelow.

"10. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tedious and time- consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action 'taken by the appellant-Corporation is not violative of the principle of natural justice."

For the foregoing reasons, petition is dismissed. Notice is discharged. Interim relief if any shall stand vacated.