Vishnubhai Harinarayan Rana vs Executive Engineer

J.N. Bhatt, J.—In this group of 16 petitions, common questions are involved and, therefore, they are heard together and resultantly they are

being disposed of by this common judgment.

The short question requiring our consideration and adjudication in this group is, as to whether the petitioners, who are running different types of

business in shops upon the land of the respondent, have any legal right and whether they can claim protection of the constitutional, equitable,

plenary, discretionary writ jurisdiction under Article 226 of the Constitution of India or not, while challenging the impugned notice issued by the

respondent for removal of unauthorised construction and encroachment, is positively in the negative for the reasons behest to add herein below.

After having given our anxious thoughts and consideration to the rival submissions raised before us and the factual profile from the record, it is

evident that the petitioners are directed to vacate or remove unauthorised encroachment within a period of 30 days, pursuant to the notice issued

by the respondent, as by passage of time, the petitioners have not voluntarily removed the unauthorised encroachment and construction on the land

belonging to the respondent authority.

Some of the petitioners also knocked the doors of this Court by filing Special Civil Application No. 10/2002 which came to be disposed of on

10.07.2002 by the Division Bench of this Court with the following order :-

It appears that only one day''s public notice for vacating the premises was given as per Annexure:B to the petition on 31.12.2001, requiring the

shopkeepers named therein, who according to the authorities are encroachers, to remove the encroachment by 1st January, 2002. On the face of

it, it is a short notice of only 24 hours. The learned Additional Advocate General states that a fresh notice of removal will be issued in accordance

with law to these persons and therefore the notice, dated 31.12.2001 will not be enforced. In this view of the matter, the learned counsel for the

petitioner states that the petitioners seek permission to withdraw this petition at this stage. Rejected as withdrawn. Notice is discharged with no

order as to costs. Interim relief stands vacated.

It is amply clear that earlier the unauthorised occupants and encroachers on the public land made a grievance before this Court in Division

Bench that only one day''s notice for vacating the premises and for the removal of the encroachment was not justified and, therefore, the learned

Additional Advocate General in that petition, appearing for the respondent authority, gracefully made a statement that fresh notice of removal will

be issued in accordance with law to the persons who have made encroachment and unauthorised constructions on the public land and until the

period of notice, the earlier notice shall not be enforced. In view of the statement made by learned Additional Advocate General, the petitioners, at

that time, sought permission to withdraw the petition and, therefore, the petition was permitted to be withdrawn and came to be rejected as

withdrawn.

In the fresh round of litigation, the factual profile and panorama remains the same so far as unauthorised construction and encroachment is

concerned. But the notice of 30 days came to be issued pursuant to the earlier statement of the learned Additional Advocate General. It appears

that instead of voluntarily vacating the premises or removing the unauthorised construction or encroachment on the public land, the petitioners again

rushed to this Court by filing this group of petitions. It be noted that even in the notice dated 05.12.2003 given to each petitioner, which is

challenged, ipso facto stipulates that the same is given for the subject of removal of unauthorised construction and removal of the encroachment

from the Govt. land with reference to the decision of the Gujarat High Court dated 10.07.2002. It is amply clear from the record that the

petitioners have made encroachment and done unauthorised construction on the land bearing Survey No. 426 situated in Ankleshwar in Bharuch

district. The petitioners have now contended in this group of petitions that they have been enjoying and using the shops sought to be demolished

and removed since long and that there is no imminent requirement of the land on which the unauthorised construction and encroachment had been

made by the respondent authority. The impugned action by giving notice and threat to demolish the premises is allegedly branded as malafide.

On behalf of the petitioners and with a view to reinforce the contentions advanced in this group of petitions against the impugned notice of

eviction of illegal construction and encroachment, mainly, following contentions came to be advanced in course of hearing in this group of petitions.

(I) That the impugned notice dated 05.12.2003 is illegal as it is not issued by the competent authority.

(II) That the petitioners cannot be removed without proper procedure being followed as provided in Gujarat Public Premises (Eviction of

Unauthorised Occupants) Act of 1972.

(III) That the public land is a Government land and, therefore, notice by the competent revenue authority under the Bombay Land Revenue Code

is necessary and since it is not given under that Act, the impugned notice is illegal.

The aforesaid three contentions are inter-connected. It would be expedient to deal with and decide them simultaneously. It is amply clear that

the petitioners have no any statutory, contractual or customary right. On the contrary, it is born out without any doubt from the record of this group

of the petitions that encroachers, upon the public land, have raised illegal constructions. The impugned notice was issued by the competent

authority on behalf of the owner. The said parcel of land on which unauthorised construction has been made belongs to Sardar Sarovar Narmada

Nigam Limited (SSNNL), the Executive Engineer concerned is a competent authority. The provisions of Gujarat Public Premises (Eviction of

Unauthorised Occupants) Act, 1972 is a supplementary and complementary statutory remedy for the removal of unauthorised occupants from the

public premises.

The Act provides the definition of public premises in Clause (f) of Section 2. What is the unauthorised occupation is also clearly statutorily

defined in Clause (h) of Section 2 of the said Act. The show-cause notice issued by the competent authority against the order of eviction will be

necessary provided the case is covered and falling within the ambit of Section 4 of the said Act. After having taken into consideration the statutory

definitions of the expression (i) ""Public Premises"" and (ii) ""Unauthorised Occupation"" and the underlined design and desideratum of the provisions

of the Act, the submission that in absence of the notice by the competent authority under the Act, the impugned action of the respondent authority

is illegal, is totally meritless.

We have yet not comprehended as to how the submission is advanced that an impugned notice given to the petitioners is illegal for want of

sufficient time. Nodoubt earlier, the notice came to be issued giving only 24 hours time and, therefore, as stated hereinabove, the learned

Additional Advocate General appearing for the respondent authority had made a statement before the Court that sufficient time will be given for the

purpose of eviction by giving notice. This time notice is given of 30 days. We have not been able to understand a person having no any right or

authority whatsoever and who has made unauthorised construction or encroachment could press for any protection or remedy much less, the

constitutional, extraordinary, prerogative, discretionary writ jurisdiction. The effect of preventing the respondent authority from taking action would

mean they will be restrained from taking legal actions for the removal of unauthorised construction and encroachment on the public land. In our

opinion, the submission that in absence of the notice by the competent authority under the Bombay Land Revenue Code, the impugned action is

illegal, is also totally unsustainable.

Lastly, half-hearted submission that the petitioners are regular property tax payers, they depend and draw their livelihood by doing the business

in the shops under eviction and they are small and poor people, is a submission to the heart and not to the head for which the petitioners should

approach the appropriate forum where power or discretion is available or enjoyable on that ground itself. The constitutional protection cannot be

afforded which in turn will have the impact of preventing the statutory authority from performing their statutory duties.

It may be mentioned that even P.U.C.L. Gandhi Peace Foundation being the petitioner in S.C.A. No. 4091 of 1995 has also simply placed

reliance only on some specimen copies of payment of tax, cess, light charges, ration card without placing any document whatsoever entitling it to

the lawful and authorised occupation and possession. On the contrary, some of the receipts issued by the then Ankleshwar Nagarpalika is a

pointer to show that the licence fees came to be recovered from the said petitioners as land was given for a short time on the basis of licence and

upon the expiry of the period of licence or upon the termination of the licence, the licensee has no right for any title to defend the eviction which is

in exercise of statutory powers by the statutory competent authority.

Before parting last submission advanced before us was to the effect that the petitioners are the persons who require to be shown sympathy and

mercy by regularising their unauthorised occupation or illegal construction or encroachment by providing alternative accommodations. Obviously,

every drowning men will try to catch a straw. But what is the use of polishing the ship when the whole ship is sinking. Such a voice before Court of

law at this stage is of no use. However, it will be open for the petitioners to appropriately move to the competent persons or authorities for

regularisation and it will be open for the competent authority concerned to consider such request if so made in accordance with rules, regulations

and law.

In the result, this group of petitions deserve only and only one legal fate of rejection whatever the stage it is placed and we are, therefore, left

with no other alternative but to raise our hands in helplessness and to reject all these petitions. However, without any order as to costs.

In one petition i.e. S.C.A. No. 4091 of 1995 wherein rule has been issued, we direct to discharge of rule and interim relief obviously would

not assume any survival value.