Rajeshkumar Babulal Rathod (Dhobi) vs State Of Gujarat & 4 Other(S)

Biren Vaishnav, J

Heard learned advocates for the respective parties and perused the record.

In this petition, under Article 226 of the Constitution of India, the action of the respondent - Talod Nagar Palika in issuing notice under Section 185(2) of the Gujarat Municipalities Act is under challenge.

In all these petitions, it is undisputed that the petitioners were holding small shops / cabins which are sought to be demolished on the ground of it being on the public road.

The facts of Special Civil Application No.12271 of 2016 are discussed for the disposal of all these matters.

Mr. Ajay L. Pandav, learned counsel for the petitioner would submit that the petitioner is carrying on the business in the name of Gujarat Washing Company registered under the Bombay Shops and Establishments Act, 1948 on 24.9.1965, which certificate has been renewed from time to time till 31.12.2018. In response to the notice, a reply was given on 16.7.2016 by the petitioner that his cabin is situated on a private land belonging to one Ambubhai Desaibhai Patel. Revenue Records were produced in support thereof and also so produced together with the petition.

Mr. Deepak P. Sanchela, learned counsel for appearing for the respondent No.3 - Nagar Palika would rely on an affidavit-in-reply filed to submit that a Resolution was passed by the Municipality for granting certain portion near the road for widening it and, therefore in deference to the orders passed by this Court in the Writ Petition (PIL) No.150 of 2013, such encroachments ought to be removed. The affidavit further states that the Municipality has constructed one shopping center and fixed upset price and given priority to the auction process to the petitioner. So far as the upset price is concerned, it is between Rs.2,17,998/- and Rs.4,30,427/-. He would further submit that even at present, the shops are vacant in the shopping center. The auction is not finalized and in the event, the petitioners are willing to offer some upset price, accommodation can be given in such shopping center.

Mr. Deepak Sanchela, learned counsel appearing for the Nagar Palika - respondent No.3 herein has placed reliance on the decision dated 24.3.2014 passed in Special Civil Application No.11032 of 2013 by the Coordinate Bench of this Court in the case of Patel Dilipkumar Shankarlal v. State of Gujarat. Relevant paragraph No.6 of the said judgment is reproduced hereunder:

"6. Having regard to the above and in view of affidavits filed as above, no further orders are required to be passed. This petition is disposed of in terms of what is agreed and stated by the Municipality in the aforementioned affidavit dated 21.03.2014 about giving priority to the petitioners. Accordingly, it is observed that if the petitioners participate in the public auction and show readiness and willingness to pay the highest price offered, then they will be qualified for allotment of the shops in accordance with other terms and conditions of auction. It is, however, clarified that the respondent No.3-Municipality would include the above agreed priority in the terms and conditions of the auction as one of the stipulations."

Mr. Meet K. Thakkar, learned Assistant Government Pleader appearing for the respondent Nos.1, 2 and 4 would rely on the affidavit-in-reply of Mr. Hitesh J. Rawal, In-charge City Survey Superintendent, Aravalli and in support of the averments made therein would indicate that the shops of the petitioners are right in the center of the road. Road widening is essential and construction on the land in question is illegal.

Mr. Ajay L. Pandav, learned counsel for the petitioners would draw the attention of the Court to the rejoinder filed disputing this proposition.

Considering the fact that the petitions have been pending for over five years, and based on the affidavits it is evident that the construction of these cabins / shops are right in the center of the road where the Municipality, at the relevant time the Nagar Palika had opposed to construct 100 feet wide road.

In view of the affidavit-in-reply as back as in the year 2016, the respondent No.3 - Talod Nagar Palika, District Sabarkantha is directed to consider the case of the petitioners in accordance with the affidavits for offering them alternative place in the shopping center in accordance with the observations made by this Court in the case of Patel Dilipkumar Shankarlal (Supra).

In the event, the petitioners also make representation to the Nagar Palika, the Nagar Palika shall consider offering them alternative place on which they can carry on their business, in accordance with law keeping in view the public purpose for which the eviction is sought to be done.

All these petitions stand disposed of with the above observations. Rule / Notice, if any, stands discharged. No order as to costs.

Direct Service is permitted.