Gurumukhdas Bhagamal ... vs State Of Gujarat
2021 Latest Caselaw 17950 Guj

     C/SCA/8864/2016                              JUDGMENT DATED: 01/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8864 of 2016
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 9356 of 2016

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1     Whether Reporters of Local Papers may be allowed                 NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                          NO

3     Whether their Lordships wish to see the fair copy                NO
      of the judgment ?

4     Whether this case involves a substantial question                NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
     GURUMUKHDAS BHAGAMAL RAMCHANDANI - SHOP NO - 44 & 60
                          other(s)
                          Versus
                STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR MEHULSHARAD SHAH(773) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,7,8,9
MR.MEET THAKKAR, AGP (99) for the Respondent(s) No. 1
MR MEHUL H RATHOD(701) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 01/12/2021

                        COMMON ORAL JUDGMENT

1. Heard Mr.Mehul Sharad Shah learned advocate for

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the petitioners in Special Civil Application No.8864

of 2016, Mr.Dev D. Patel learned advocate for the

petitioner in Special Civil Application No.9356 of

2016.

2. In both these petitions under Article 226 of the

Constitution of India, the prayers of the petitioners

are similar/identical in nature. For the purposes of

brevity, prayers as well as facts of Special Civil

Application No.8864 of 2016 are discussed.

3. The prayers read as under:

"(A) to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the notice dated 27.05.2016 (served on 30.05.2016) issued by respondent No.2 herein (Annexure-A) and thereby restrain the Nagarpalika from terminating the tenancy rights of the petitioners and from removing the petitioners from their lawful possession of the shops in question.

(B) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to stay the execution, implementation and operation of the notices dated 27.05.2016 (served on 30.05.2016) issued by the Nagarpalika - respondent No.2 and thereby restrain the Nagarpalika from taking any coercive steps against the petitioners with respect to the occupation of shops."

4. Facts in nutshell are that it is the case of the

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petitioners that they are permanent residents of

Kalol Town and occupants of shops since more than

40 years on Station Road, Kalol. That they have been

paying rent to the Kalol Nagarpalika from 1975 and

rent receipts in proof thereof are annexed to this

petition. It is a statement made in the petition that

with an ulterior motive, the Nagarpalika has stopped

taking rent from 01.04.2008 though the petitioners

were ready and willing to pay the amount. Further

it is the case of the petitioners that they have paid

municipal tax to the Nagarpalika upto the year 2015-

16 as demanded by the Nagarpalika. That they are

paying electricity connection charges which is

justified by producing bills annexed to the petition.

The case of the petitioners is that there are in all 82

shops situated on the main road known as station

road, Kalol. Of these 82 shops, 61 shop owners have

been issued notices, which are under challenge,

whereby, the petitioners have been asked to vacate

the land on which such structures/shops are

existing.

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5. Mr.Mehul Sharad Shah learned counsel for the

petitioners would invite the attention of this Court to

the notice dated 27.05.2016. Reading the notice, it

is the endeavor of Mr.Shah to submit that the notice

indicates that action is being undertaken pursuant to

an order passed by this Court in Special Civil

Application No.603 of 2005 dated 25.03.2005 which

according to the Nagarpalika's perception was a

mandate to the Nagarpalika to take over possession

of lands which were occupied by encroachers and

not to renew the lease agreements of such

occupants. The notice also refers to a resolution of

01.04.2008, by which, the Nagarpalika stopped

accepting rent unilaterally. Reliance is also placed

on the resolution of 31.07.2015. Mr.Shah learned

counsel for the petitioners invited the attention of

the Court to the order passed on which the notice

impugned herein is based. It is his submission that

the Special Civil Application No.603 of 2005 was a

petition filed by the petitioners challenging the order

of removal as the President of the Municipality

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under Section 37 of the Gujarat Municipalities Act.

The contention of the petitioners there was that the

President had acted only by agreeing to the decision

of the administrator in his capacity as a President

which was a subject matter of removal. Inviting the

Court's attention to the operative portion of the

order, Mr.Shah would submit that therefore what

was under the scrutiny of the Court was the aspect

of the removal of the President which was

completely unconnected with the issue of

encroachment and/or non-renewal of lease of the

tenancy rights of the petitioners.

6. Inviting attention of the Court to the interim order

dated 25.03.2005 in Letters Patent Appeal No.449 of

2005, Mr.Shah would submit that the observations

of the Division Bench was that suo-motu cognizance

was taken of cases where public bodies were

alienating public properties in violation of the

prescribed procedures and therefore the Secretary,

Urban Development and Urban Housing Department

and the Panchayats department was directed to file

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affidavits giving details of the policies, circulars and

decisions taken by the Government of Gujarat to

regularize encroachment on public property. That

order was diluted when the Letters Patent Appeal

was finally disposed of by an order of 20.02.2009,

categorically observing that the order of 25.03.2005

will not stand in the way of the Nagarpalika,

Corporations, Municipalities and the State

Government to regularize encroachments based on

the policies.

7. Emphasis is made on the fact that all these

observations were in context of encroachers and

therefore petitioners cannot be classified as

encroachers as they were tenants of the land which

was leased by the Nagarpalika to the petitioners.

Reliance was placed on a Government Circular dated

17.06.1976 to submit that the petitioners also were

refugees and the policy in question required that

unless and until alternative sites were given to the

petitioners in consonance with such policy, no

eviction can take place. Mr.Shah would also assail

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the notice on the ground that in fact, it was not a

notice but an order directing the petitioners to evict

within a period of 10 days from the receipt of the

communication. Though reference was made to the

order of Special Civil Application dated 25.03.2005

in fact, the order was passed in Letters Patent

Appeal which suggests total non-application of mind

on behalf of the Nagarpalika. Attention was drawn

to the resolutions dated 01.04.2008 and 31.05.2015

and copies of such resolutions have not been

supplied, the exercise of evicting the petitioners

would violate the principles of natural justice. He

would further submit that right from the year 2008

till 2015 the Nagarpalika did not act after having

stopped collecting rent. There is therefore gross

delay on the part of the Nagarpalika in issuing the

notice in question. The eviction cannot be

undertaken except in accordance with law viz.

following the provisions of the Public Premises

Eviction Act as has been the case with the 23 lease

holders against whom such procedure was followed

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and who are the petitioners of Special Civil

Application No.9143 of 2016.

8. Mr.Dev D. Patel learned counsel for the petitioner in

Special Civil Application No.9356 of 2016, in

addition to adopting the arguments of Mr.Shah

would submit that admittedly the petitioner was

legal tenant in whose favour there was a lease of 11

months for putting the cabin on the street land as

admitted by the Nagarpalika in its affidavit and

therefore without following an appropriate

procedure under the Public Premises Eviction Act,

no eviction can be carried out. Even if the resolution

of 13.02.2008 is read, in the submission of Mr.Patel,

procedure envisaged for eviction was not followed.

9. Mr.Mehul Rathod learned advocate appears for the

Kalol Nagarpalika. He would extensively read the

notice under challenge and submit that if the

resolution is closely read, what it indicates is that

pursuant to an order dated 25.03.2005 passed by the

Gujarat High Court observing that cabin and

encroachments on public streets are not to be

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regularized, the General Body of the Kalol

Nagarpalika passed a Resolution No.101 dated

13.02.2008 by which it was resolved to stop

collecting the rent from the petitioners. It was also

envisaged in the resolution to see that such cabin

holders are evicted.

9.1 He would then invite the attention of the Court

to the resolution dated 31.07.2015, which reliance

would be from the paper book of petition being

Special Civil Application No.10853 of 2016. Reading

the resolution, Mr.Rathod would submit after

making a reference to the order of the Division

Bench, the resolution of 13.02.2008 was passed.

Subsequently, the resolutions were approved and it

was decided that exercise be undertaken to remove

encroachment on the station road. Reading the

resolution, Mr.Rathod would submit that at the

relevant point of time, as early as in the year 1975,

one Bhatu Lallu had given the land in question to the

Nagarpalika for widening of the roads and for

making of footpath.

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9.2 At the relevant point of time, rather than

utilizing the land for the purposes for which it was

given, the administrators and the officers at that

time leased such lands to 87 cabin holders. The

entire issue was before the High Court wherein in

the year 1997 a judgment was given for seeing that

the land is evicted and the cabins are removed. The

litigation went upto to the Supreme Court wherein

cabin holders failed. It was due to certain political

reasons that such cabin continued to exist and on

13.02.2008, the Nagarpalika stopped accepting

rents from these cabin holders. The Nagarpalika's

elected body of councilor passed a resolution dated

28.01.2014. For enforcing the resolution and

evicting such cabin holders and since the committee

did not act in compliance of the orders of the High

Court and the Supreme Court. The resolution of

31.07.2015 was passed holding that enforcement be

carried out and the orders of the High Court and the

Supreme court and the cabin holders be evicted.

According to Mr.Rathod the petitioners cannot

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classify themselves as tenants once their lease was

not extended.

9.3 Mr.Rathod invited the attention of the Court to

the affidavit in reply and submitted that certain

preliminary submissions were made in the reply

which read as under:

(I) It is their case that Municipality had granted

permission to the petitioners to occupy 8X8 square

feet land on lease of 11 months and 29 days from

1950-51. The lease was not extended after 1979. 40

years thereafter has passed and hence, the

requirements of the Nagarpalika and the Kalol town

changed with the increase in population, commercial

activities etc. The 2011 census showed a population

of 1,11,000 out of which 35% resided on the eastern

side of the railway track. Thereafter, road needed to

be widened and under-bridge from railway tracks

was made as required. Thereafter, for widening of

the road due to traffic congestion on the main road,

in the public interest, the Municipality issued notice

to remove cabin/shops and to hand over vacant

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possession of the land to it within 10 days. A full-

fledged hearing was given pursuant to notices but

before any decision is taken, the petitioners had

approached this Court.

(II) The affidavit according to Mr.Rathod was

indicated and the rent was not collected after 2008

and therefore the petitioners continue to occupy

their cabin illegally and therefore they are

encroachers and not legitimate tenants.

(III) Inviting the attention of the Court to the

interim order dated 22.03.2005, Mr.Rathod would

submit that Nagarpalika had to act in the matter as

desired.

(IV) To submission of Mr.Mehul Shah that the

petitioners were discriminated inasmuch as 23

encroachers were given benefit of regularization by

virtue of the order of the Collector in accordance

with the order passed by this Court in Special Civil

Application Nos.7035 and 7056 of 1985 and allied

matters, is incorrect. If 23 cabin holders have been

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given notices which is a subject matter of Special

Civil Application No.9143 of 2016, map in support of

the need to widen the road and the sanctions etc.

have been relied upon.

10. Having considered the submissions of the learned

counsel for the respective parties, what unfolds on

the reading of the notice under challenge together

with the orders passed by this court in Special Civil

Application No.603 of 200, especially the order of

22.03.2005 would indicate the following

circumstances:

I. True it is that the order in Special Civil

Application No.603 of 2005 was in context of a

controversy regarding the removal of President

from his post and what was under scrutiny was

the legality of the competent authority in

exercise of powers under Section 37 of the

Municipalities Act.

II. The submission of Mr.Shah that the orders have

been read out of context may at first blush

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appear to be attractive. However, the interim

order of 25.03.2005 passed in Letters Patent

Appeal No.449 of 2005 needs to be closely read:

"This appeal is directed against order dated 9.3.2005 passed by the learned Single Judge in Special Civil Application No.603/05 whereby he rejected the appellants' prayer for quashing the order of his removal from the post of President, Municipality, Dhanera. The appellant was elected as Councillor of Dhanera Municipality (for short 'the Municipality') in the year 2003. Later on he was elected as President of the Municipality. In the general meeting of the Municipality held on 28.10.2003, which was presided over by the appellant, a resolution was passed to give land forming part of the public road to the shop-keepers to whom temporary lease was earlier granted by the then administrator and who had made encroachments on the adjacent land. For the sake of reference, the relevant extract of the resolution No. 39(1) passed by Nagar Palika is reproduced below: "In the public roads and lands in addition thereto which are vested in Dhanera Nagarpalika under the provisions of Section 80(2) of the Gujarat Nagarpalikas Act, small big traders/businessman are encroaching, taking possession and carrying out business. In a way that the same does not obstruct the public roads of Dhanera, in exercise of powers conferred by Section 65(2) of the Gujarat Nagarpalikas Act, representations were made by the members present to give the above land on lease for temporary basis.

In this regard, it was unanimously resolved that the powers are conferred upon the President and the Chief Officer to initiate

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proceedings for giving on lease in a way that the provisions of Section 146 of the Gujarat Municipalities Act is not breached and the same does not come in the way of public roads after examining and deciding the demands made in the applications on merits. There are encroachers in the lands vested in the Nagarpalika and the above persons have also obtained electricity connection and the facilities. This meeting/Sabha believes that if the above encroachments are removed then the question of their livelihood arises and the Nagarpalika is not in a position to dispose of the above land in any other manner and therefore, if these encroachments are not obstructing the traffic and if the Nagarpalika derives income by way of rent by giving this land on lease as well as the amount received as development fund would cause financial profit to the Nagarpalika and in such event, the land should be given on rent. All the members present have supported this aspect and it is unanimously resolved that as per the representation of the members present, within the boundaries of the powers conferred upon the Nagarpalika for giving on rent as well as after verifying the personal merits, the powers for initiating for giving the land on rent for temporary basis are conferred upon the President and Chief Officer after initiating steps for obtaining the permission of the Honourable Collector, Banaskantha, Palanpur and the Honourable Deputy Collector, Deesa." (emphasis added) In terms of the above reproduced resolution, the appellant and the Chief Officer of the Municipality were required to obtain permission from the Collector before granting temporary lease to those who had encroached on the public land, but with a view to confer undue benefit upon such persons the appellant manipulated grant of lease to the

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encroachers without even making a reference to the Collector. When this came to the notice of the Director of Municipalities, Gujarat (respondent No.1), he issued notice dated 4.9.2004 to the appellant for taking action under Section 37 of the Gujarat Municipalities Act, 1963 (for short 'the 1963 Act") on the allegation that he had committed misconduct in the discharge of his duties as the President. Copies of reports dated 17.5.2004 and 15.7.2004 prepared by Deputy Collector, Deesa in regard to the illegal disposal of public property by the appellant were annexed with the notice. In the reply dated 11.10.2004 filed by him through his Advocate, the appellant justified his action of granting lease to the encroachers by contending that the Municipality could do so in terms of Section 65 of the 1963 Act. He also raised the plea of discrimination by stating that while he was being proceeded against, no action was taken against the Administrator who had disposed of Municipal

dated 25.10.2000. After considering the reply filed by the appellant, respondent No.1 passed order dated 1.12.2004 for his removal from the post of President. He also declared that the appellant will cease to be a Municipal Councillor. The appellant challenged that order by filing a writ petition under Article 226 of the Constitution, which was registered as Special Civil Application No. 15713 of 2004. He pleaded that the action taken by respondent No.1 was vitiated due to violation of the rules of natural justice, inasmuch as he had not been given reasonable opportunity of hearing. By an order dated 15.12.2004, the learned Single Judge of this Court allowed the writ petition and quashed order dated 1.12.2004 on the ground of violation of the rules of natural

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justice. Thereafter, respondent No.1 gave fresh opportunity of hearing to the appellant and passed order dated 15.1.2005 vide which he again removed the appellant from the post of the President and also declared that he shall cease to be a member of the Municipality. The appellant challenged order dated 15.1.2005 in Special Civil Application No. 603 of 2005. He pleaded that the order passed by respondent No.1 is vitiated by arbitrariness and non-application of mind. He also pleaded discrimination by asserting that on an earlier occasion the Administrator had made similar alienation but no action was taken against him. The respondents justified the removal of the appellant by asserting that he had been found guilty of misconduct within the meaning of Section 37 of the 1963 Act. The learned Single Judge dismissed the writ petition by observing that the finding recorded by respondent No.1 on the issue of appellant's culpability was based on a correct appreciation of evidence. He further held that by disposing of the Municipal land without obtaining prior permission of the Collector, the appellant had committed grave misconduct and, thereby, rendered himself liable to be removed from the post of the President. Shri G.M. Joshi, learned Counsel for the appellant laid considerable emphasis on the fact that in the past the Administrator of the Municipality had made similar allotment to encroachers but no action was taken against the officer concerned and argued that there was no justification to take punitive action against the appellant ignoring the fact that resolution dated 28.10.2003, pursuant to which the disputed lease was granted had been unanimously passed by the Municipality. Shri Joshi further argued that the appellant's failure to obtain prior permission from the Collector was a mere

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irregularity and this could not be treated as a misconduct within the meaning of Section 37(1) of the 1963 Act. In our opinion, there is no merit in the arguments of the learned Counsel and the appeal is liable to be dismissed summarily. The parameters for exercise of the power of judicial review by the High Court under Article 226 in matters involving challenge to the orders, awards etc. passed by the subordinate Courts and judicial or quasi judicial authorities are well defined. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals and other judicial and/or quasi-judicial authorities. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal and/or other judicial/quasi-judicial authority acts illegally or improperly i.e. it decides a question without giving opportunity of hearing to the affected party or where the procedure adopted by it is contrary to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal or judicial/quasi-judicial authority, as a result of the appreciation of evidence, cannot be reopened, or questioned in writ proceedings unless the judgement, award or order suffers from an error of law apparent on the face of the record. The above is an abstract statement of law. However, the vexed question is as to what is an error of law apparent on the face of the record and in what circumstances a finding of fact reached by an inferior Court or Tribunal or other judicial/quasi-judicial authority can be corrected. Broadly speaking, an error of law is one which can be discovered on a bare

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reading of the judgement, order or award under challenge. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal or judicial/quasi-judicial authority can be corrected only if it is shown that in recording the said finding the Court etc. had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or other judicial/quasi- judicial authority cannot be gone into by the High Court. Mere possibility of the High Court forming a different opinion on reappreciation of evidence produced by the parties is also not sufficient for issue of a writ of certiorari. In Syed Yakoob Vs. K.S. Radhakrishnan and others - AIR 1964 S.C 477, the Supreme Court considered the ambit and scope of the High Court's jurisdiction to issue writ of certiorari and held: "A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can, similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party

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affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice." "A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court." In Shaikh Mahammad Umarsaheb Vs. Kadalaskar Hasham Karimsab and ors. - AIR 1970 SC 61, the Supreme Court held as under: "Where the evidence adduced before the trial Judge was not so immaculate that another Judge might not have taken a different view, it cannot be said that there was no evidence on which the trial Judge could have come to the conclusion he did. When the trial Court accepts the evidence, the High Court which is not hearing an appeal cannot be expected to take a different view in exercising jurisdiction under Articles 226 and 227." In R.S. Saini Vs. State of Punjab and ors. - JT 1999 (6) SC 507, their Lordships of the Supreme Court while confirming the order of the High Court of Punjab and Haryana which had dismissed the writ petition filed by the appellant against his removal from the post of President, Municipal Councillor, Nangal held as under: "The court while exercising writ jurisdiction will not reverse a finding of the enquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the court to review the

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evidence and to arrive at its own independent finding. The enquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings." "The enquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, have been taken in a reasonable manner and objectively. The conclusion arrived at by the enquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the enquiring authority." In the light of the above, we shall now consider whether the learned Single Judge committed any error by refusing to entertain the appellant's challenge to order dated 15.1.2005 passed by respondent No.1. A careful reading of the order under appeal shows that after adverting to the facts which led to the initiation of proceedings against the appellant under Section 37 of the 1963 Act and the arguments of the Counsel appearing for the parties, learned Single Judge held that by granting lease of the Municipal land to the encroachers without obtaining prior permission of the Collector and without getting the same valued through any expert/Valuation Department of the Government, the appellant had acted against the interest of the Municipality and thereby made himself liable to be removed from the post of the President. We have also scanned the order dated 15.1.2005 passed by respondent No.1 and are of the considered view that the reasons assigned by the said respondent for holding the appellant guilty of

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misconduct do not suffer from any legal infirmity. The officer concerned noted that the appellant was required to seek prior permission of the Collector, who in turn would have made a reference for valuation of the property and if that had been done, the same could have fetched much higher price. Respondent No.1 also referred to the provisions of Sections 65, 80 and 146 of the 1963 Act and held that if the land in question had been disposed of by public auction, then the Municipality could have generated/garnered higher revenue. It is thus, clear that the action taken by the appellant to dispose of the land in dispute in a rather clandestine manner was not only contrary to the resolution passed by the Municipality but also resulted in financial loss to the very local body which he was heading. We are further of the view that the appellant's failure to obtain prior permission of the Collector, which was a condition precedent for leasing out land to the encroachers, was not a mere irregularity but was a grave dereliction of the duty imposed upon him. Being a public representative of the local body, the appellant was a trustee of the public faith and confidence. By acting in violation of the resolution passed by Nagarpalika, he had clearly breached the trust and confidence reposed in him by public and his remissness amounted to grave misconduct justifying the action taken under Section 37(1) of the Act. The appellant's plea that he had been discriminated is being mentioned by us only to be rejected. The mere fact that the Administrator of the Municipality had alienated public land in a similar fashion and no action was taken by the State Government against the officer concerned can not absolve the appellant of his liability to be proceeded against for the

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misconduct committed by him in his capacity as President by acting in wholesale violation of the resolution passed by Nagarpalika, which, as mentioned above, contemplated prior permission of the Collector before leasing out the land to the encroachers. In our view, the failure of a superior authority to take action against delinquent can never be made a ground for nullifying the action taken by said authority against other delinquent. To put it differently, the plea of discrimination is not available to a person who is guilty of committing misconduct while holding a public office. For the reasons stated above, the appeal is dismissed. While dismissing the appeal, we deem it proper to take suo motu cognizance of the fact that in large number of cases the public bodies are alienating public properties in disregard of the statutory provisions and public interest and though guilty of violation of the mandate of the statute, are not proceeded against by superior authorities. Alienation of the property made by Administrator of Nagar Palika, Dhanera prima face appears to be tainted with malafide. We are informed that in large number of similar cases the local bodies have been alienating public properties and thereby causing financial loss to the units of self Government. It is, therefore, appropriate that the issue is examined by the Court in a larger perspective in public interest. Therefore, the learned Government Pleader is directed to take notice of this order and assist the court. Secretary, Urban Development and Urban Housing Department, Gujarat as well as Secretary, Panchayats, Gujarat are directed to file their affidavits giving details of the policies, circulars, resolutions, decisions taken by the Government of Gujarat for regularising the encroachment on public property and/or

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alienation of public properties to encroachers. Director of Municipalities is also directed to file affidavit clearly stating as to what action has been taken against erring Administrator and Chief Officer of Dhanera Nagarpalika. The needful be done within five weeks. In the meanwhile, the Government of Gujarat and all local bodies (Nagarpalikas, Municipal Corporations and Panchayats) are restrained from alienating public properties to the encroachers. The case be listed before the Court on 9.5.2005 for further consideration. The Bench Secretary is directed to give an attested copy of this order to Shri A.Y. Kogje, learned Assistant Government Pleader."

III. The Division Bench referred to the order under

challenge of the Single Judge of Special Civil

Application No.603 of 2005. The Division Bench

observed that what was under challenge was a

resolution, by which, land forming part of a

public road to the shop keepers to whom

temporary lease was earlier granted by the then

Administrator which the President approved was

the subject matter of removal and hence under

challenge. In light of this, while dismissing the

appeal, the Division Bench observed thus;

"For the reasons stated above, the appeal is dismissed.

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While dismissing the appeal, we deem it proper to take suo motu cognizance of the fact that in large number of cases the public bodies are alienating public properties in disregard of the statutory provisions and public interest and though guilty of violation of the mandate of the statute, are not proceeded against by superior authorities. Alienation of the property made by Administrator of Nagar Palika, Dhanera prima facie appears to be tainted with malafide. We are informed that in large number of similar cases the local bodies have been alienating public properties and thereby causing financial loss to the units of self Government. It is, therefore, appropriate that the issue is examined by the Court in a larger perspective in public interest. Therefore, the learned Government Pleader is directed to take notice of this order and assist the court.

Secretary, Urban Development and Urban Housing Department, Gujarat as well as Secretary, Panchayats, Gujarat are directed to file their affidavits giving details of the policies, circulars, resolutions, decisions taken by the Government of Gujarat for regularising the encroachment on public property and/or alienation of public properties to encroachers. Director of Municipalities is also directed to file affidavit clearly stating as to what action has been taken against erring Administrator and Chief Officer of Dhanera Nagarpalika. The needful be done within five weeks. In the meanwhile, the Government of Gujarat and all local bodies (Nagarpalikas, Municipal Corporations and Panchayats) are restrained from alienating public properties to the encroachers.

The case be listed before the Court on

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9.5.2005 for further consideration. The Bench Secretary is directed to give an attested copy of this order to Shri A.Y.Kogje, learned Assistant Government Pleader."

IV. The Court observed that it was taking suo-motu

cognizance of the fact that in large number of

cases the public bodies are alienating public

properties in this regard, the statutory provisions

and public interest. The Court further observed

that "We are informed that in large number of

similar cases the local bodies have been

alienating public properties and thereby causing

financial loss to the units of the State

Government." Thereafter, in the latter final

portion of the decision the Court observed that

the government of Gujarat and the local bodies

(Nagarpalikas, Municipal Corporations and

Panchayats) are restrained from alienating to

public properties to the encroaches".

V. Coming to the arguments of Mr.Mehul Shah that

the petitioners are legal occupants holding

tenancy rights on the lands in question needs to

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be appreciated in the context of the reply filed by

the Nagarpalika. It is an admitted fact even as

stated in the petition that the Nagarpalika

stopped accepting rent from the petitioners on

and from 01.04.2008. What the Municipality had

leased was to the each of the petitioners 8 X 8

square feet of land for 11 months in the year

1975. The leases were not extended after 1979.

Admittedly therefore the occupancy rights of the

petitioner had been extinguished if not in the

year 1979, at least in the year 2008 and

production as "tenants in holding" could not be

granted to the petitioners.

VI. What is also evident is that reliance placed on the

resolution by Mr.Shah of the year 1976 may not

be a circumstance which can weigh with the

Court in view of the subsequent developments in

the ensuing 40 years that the Nagarpalika has

undergone. It has come on record that the city

has undergone urbanization and grown both in

terms of population and area. In context of the

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resolution dated 31.07.2015, wherein, it is

evident that the land which the petitioners are

occupying as cabin holders was initially given by

one Bhatu Lallu to the Nagarpalika for widening

of public road and making footpaths. It was used

by the then administrators of the Nagarpalika for

leasing out as cabin lands. It was with a view to

lessen the strain of traffic congestion and

connecting eastern and western side of the city

by an underpass, the station road needed to be

widened.

VII. The additional circumstance by virtue of which

the petitioners cannot claim to be tenants or

legal occupants also brought out in the affidavit

in reply together with Annexure at page 68,

which indicates that most of the petitioners have

transferred the cabin rights to third party which

cannot entitle the petitioners to claim protection

of this Court, particularly under the umbrella of

the circular of the Government of the year 1976.

VIII. As far as the argument of Mr.Shah that under

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The Street Vendors (Protection and Livelihood

and Regulation of Street Vending) Act, 2014, no

street vendor shall be evicted unless relocated.

Reading the definition of the word 'Street

Vendor' it would indicate that a person engaged

in vending of articles, goods, wares, food items or

merchandise of everyday use or offering services

to the general public, in a street, lane side walk,

footpath, pavement, public park or any other

public place or private area, from a temporary

built up structure or by moving from place to

place and includes hawker, peddler, squatter and

all other synonymous terms which may be local

or region specific; and the words "street

vending" with their grammatical variations and

cognate expressions, shall be constructed

accordingly. When photographs are seen, it is

apparent that the petitioners do not qualify

themselves to be called as "street vendors".

IX. The aforesaid circumstances as narrated herein

above would indicate that the petitioners have no

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legal right to retain the possession of the lands or

the cabins on which the Nagarpalika wants to

remove them for a public purpose of widening

road due to the growth in urbanization and

population. By virtue of extinguishment of lease

they do not qualify themselves as tenants and

even by virtue of their conduct of alienating the

cabins of other they do not qualify as street

vendors.

11. Both these petitions are therefore dismissed. Interim

relief stands vacated forthwith.

12. On a request being made by learned advocate

Mr.Mehul Sharad Shah the interim relief appears to

have been initially granted by this Court in the year

2016, the same may be continued upto 22.12.2021.

(BIREN VAISHNAV, J) ANKIT SHAH