Gujarat High Court
Rajeshkumar Babulal Rathod ... vs State Of Gujarat on 7 December, 2021
Bench: Biren Vaishnav
C/SCA/12271/2016 ORDER DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.12271 of 2016
with
R/SPECIAL CIVIL APPLICATION NO.12272 of 2016
with
R/SPECIAL CIVIL APPLICATION NO.12489 of 2016
with
R/SPECIAL CIVIL APPLICATION NO.12500 of 2016
with
R/SPECIAL CIVIL APPLICATION NO.12273 of 2016
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RAJESHKUMAR BABULAL RATHOD (DHOBI)
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR AJAY L PANDAV(3660) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP (1) for the Respondent(s) No. 1,2,4
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 07/12/2021
COMMON ORAL ORDER
1. Heard learned advocates for the respective parties
and perused the record.
2. 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.
C/SCA/12271/2016 ORDER DATED: 07/12/2021
3. 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.
4. The facts of Special Civil Application No.12271 of
2016 are discussed for the disposal of all these
matters.
5. 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.
C/SCA/12271/2016 ORDER DATED: 07/12/2021
6. 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.
7. Mr. Deepak Sanchela, learned counsel appearing for
C/SCA/12271/2016 ORDER DATED: 07/12/2021
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."
8. 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,
C/SCA/12271/2016 ORDER DATED: 07/12/2021
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.
9. Mr. Ajay L. Pandav, learned counsel for the
petitioners would draw the attention of the Court to
the rejoinder filed disputing this proposition.
10. 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.
11. 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
C/SCA/12271/2016 ORDER DATED: 07/12/2021
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).
12. 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.
13. 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.
[ BIREN VAISHNAV, J. ]
*** VK
