Late Revachand Madhumal ... vs State Of Gujarat
2021 Latest Caselaw 18269 Guj

     C/SCA/9143/2016                               ORDER DATED: 09/12/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9143 of 2016

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        LATE REVACHAND MADHUMAL PURSHWANI & 22 other(s)
                            Versus
                  STATE OF GUJARAT & 2 other(s)
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Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,3,4,5,6,7,8,9
MR.MEET THAKKAR, AGP (99) for the Respondent(s) No. 1
MR MEHUL H RATHOD(701) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 09/12/2021

                              ORAL ORDER

In similar matter, this Court has passed judgment in

Special Civil Application No.8864 of 2016 and allied

matter on 01.12.2021, which judgment reads as

under:

1. Heard Mr.Mehul Sharad Shah learned advocate for 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

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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 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

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land on which such structures/shops are existing.

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 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

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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 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 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

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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 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 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

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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.

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

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cabin holders be evicted. According to Mr.Rathod the petitioners cannot 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 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.

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(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 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 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,

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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 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

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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 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

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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 land in similar manner vide resolution No. 64 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 justice. Thereafter, respondent No.1 gave fresh opportunity of hearing to the appellant and passed order

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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

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permission from the Collector was a mere 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

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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 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

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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 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

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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 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

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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 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

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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 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

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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 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

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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.

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

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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."

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 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

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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 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.

C/SCA/9143/2016 ORDER DATED: 09/12/2021

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

C/SCA/9143/2016 ORDER DATED: 09/12/2021

In view of the above quoted judgment, present

petition is also dismissed. However, since there is a

leave note on behalf of learned advocates for the

respective contesting parties, the operation of the

order as in earlier order dated 01.12.2021, 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