Jayshreeben Varjangbhai Odedra vs State Of Gujarat
2021 Latest Caselaw 17359 Guj

     C/SCA/6554/2018                                 JUDGMENT DATED: 17/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6554 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

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                       JAYSHREEBEN VARJANGBHAI ODEDRA
                                    Versus
                          STATE OF GUJARAT & 4 other(s)
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Appearance:
MR SK PATEL(654) for the Petitioner(s) No. 1
MR.MEET THAKKAR, AGP (1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
MR MASOOM K SHAH(6516) for the Respondent(s) No. 4,5
MS MOHINI K SHAH(775) for the Respondent(s) No. 4,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 17/11/2021

                               ORAL JUDGMENT

1. RULE returnable forthwith. With the consent of parties, the

petition is taken up for final hearing.

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

2. The prayers made in the petition read as under:

"(A) Allow this petition;

(B) Be pleased to issue an appropriate writ or direction, holding that the fundamental and constitutional rights of the petitioner has been violated by the servants and agents of Respondent no.2 and more particularly by respondent no.3, in the facts of this case, for which they are liable to pay monitory compensation under public law remedy as recognized by settled legal position from time to time in this regard.

(C) Be pleased to issue an appropriate writ order or direction, directing the respondent no.1 to order appropriate inquiry against the erring officers of the respondent no.2 corporation and against respondent no.3 in the entire episode for their gross negligent, collusive and malafide conduct in disregard to their official duties and thereby to protect illegal construction and for harassing and violating the fundamental and constitutional rights of the petitioner.

(D) Pending admission and till final disposal of the present petition, direct the respondent no.2 to implement their order dated 06/0/2018 or any other order in this regard for demolition of illegal and unauthorized construction in Plot No.23 of Krishna Park Society and Plot No.31 and its Sub-Plots in Shri Raj Park Society in the city of Junagadh as mentioned in the petition."

3. The petitioner - Jayshreeben Varjangbhai Odedara has approached

this Court raising a grievance that there is collusive and willful

inaction on the part of the respondent nos.2 and 3 for extraneous

consideration in not implementing their own orders under Section

260(1), 260(2) of the Gujarat Provincial Municipal Corporation

Act, 1949.

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

4. Facts in brief indicate that the petitioner purchased residential plot

no.22 in Krishna Park Society near Collector Office, Junagadh in

the year 2004. An adjoining plot no.23 of the society belonged to

one Bharat Chawada (Ashaben Chawada - respondent no.3).

Behind the society, another residential society Shri Rajpark society

is situated where there is an adjoining plot of the petitioner being

plot no.31. The case of the petitioner is that there was an illegal

construction on plot no.23 of Krishnapark society and construction

on plot no.31 of Shri Rajpark society, both plots being adjacent to

that of the petitioner. Mr.S.K.Patel learned counsel for the

petitioner would invite the attention of the Court to page 28 of the

paper book and page 29 of the paper book which contained the

development permission and submit that the construction in these

plots was contrary to the development permission inasmuch as no

adherence thereto was made by keeping the margin land open. He

would invite the Court's attention to the relevant development

permission annexed to the petition. Mr.Patel would also thereafter

draw the Court's attention to the Panchnama drawn on 21.11.2017

in the case of plot no.23 and the one drawn for plot no.31 which,

according to the petitioner would confirm the fact of the

construction being made at these plots was contrary to the

permissions inasmuch as the margin lands not kept open. Pursuant

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

to a complaint made by the petitioner to the respondent

Corporation on 20.11.2017, the Corporation on 06.01.2018 passed

an order directing the private respondents to remove the illegal

constructions carried out in their respective plots.

5. Therefore, the essential grievance of the petitioner is that though an

order was passed on 06.01.2018, the same is not being

implemented and the constructions in such place are not being

removed. Mr.Patel would submit that on the issuance of this order

on 06.01.2018, on 09.01.2018, the respondents filed a Civil Suit

being Regular Civil Suit No.9 of 2018, wherein, an application

Exh.5 for injunction was filed and the same was dismissed.

6. He would submit that the respondent no.3 one Mr.N.K.Nandaniya

- the Deputy Municipal Commissioner of the respondent No.2-

Junagadh Municipal Corporation has been joined by name in

person as the allegations for mala-fide have been made in the

petition inasmuch as it is the case of the petitioner that he was

hand-in-glove with the private respondents. He would also

concede to the fact that when the petitioner made an application for

being joined as a party to the suit, that application was rejected by

an order dated 02.04.2018 and on a petition being filed challenging

the order being Special Civil Application No.20684 of 2018, the

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

same was withdrawn with a liberty to make a fresh application for

being joined as a party which application was never made and

recourse was made by filing of the present petition.

7. Mr.Masoom Shah learned counsel for the private respondents

would draw the attention of the Court to the prayers of the petition

and submit that if prayer 32(B) is read, the final relief that is sought

for is for paying mandatory compensation under public law remedy

and prayer-C of para 32 is to take appropriate action against the

erring officers of the respondent no.2-Corporation. The prayer of

seeking implementation of the order dated 06.01.2018 is only an

interim prayer and such an interim prayer which is correlated to the

final relief cannot be so granted when the Court is taking up the

matter for consideration. In support of his submission,

Mr.Masoom Shah relied on a decision in case of Swetambar

Sthanakwasi Jain Samiti and another v. Alleged Committee of

Management Sri R.J.I. College, Agra and others reported in

(1996) 3 SCC 11. He invited the Court's attention to the relevant

portion of the decision wherein, according to Mr.Shah, the

Supreme Court has opined that a final relief cannot be granted in

the nature of a relief which has no connection with an interim

relief. The other decision that Shri Shah relied on was that of

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

Cotton Corporation of India Limited v. United Industrial Bank

Limited and others reported in (1983) 4 SCC 625. He would

submit by relying on the decision in case of Cotton Corporation of

India Limited (supra) that interim relief can be granted only as an

aid and ancillary to the main relief which is available to the party

on final determination of his rights. In context of the present

petition, Mr.Shah would therefore submit that when the final relief

is only for seeking mandatory compensation by way of a final

direction, the interim direction sought for implementation of the

order dated 06.01.2018 cannot be granted.

8. The other submission that Mr.Shah made was that if the

chronology of events be seen, after the order of 06.01.2018, an

application for joining party in the suit filed by the petitioner was

dismissed on 02.04.2018. That dismissal was challenged by filing

Special Civil Application which was withdrawn on 28.12.2018 to

file a fresh application before the Trial Court. No such application

was filed. Invoking Article 226 of the Constitution by filing of the

present petition therefore cannot be used to short-circuit a remedy

which the petitioner already contemplated by withdrawing the

Special Civil Application with a view to file a fresh application

which he did not.

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

9. Mr.Shah would also dispute the proposition of Mr.Patel that Exh.5

in the suit has been dismissed and therefore doors are closed for the

petitioner. The appeal has been filed against this order below

Exh.5 which is pending. The suit filed at the hands of the present

respondents is pending and therefore any observation that is made

in these proceedings would directly have a bearing on the suit filed

by the respondents.

10.Mr.H.S.Munshaw learned counsel appearing for the respondent

no.3-Junagadh Municipal Corporation extensively took the Court

through the chronology of events that there was no inaction on the

part of the Corporation. He would invite the attention of the Court

to the various events which laid down in the affidavit dated

05.05.2018. As far as personal mala-fides are concerned, he would

submit that the respondent no.3 has also filed an affidavit dated

20.06.2018 denying such allegations.

11.Despite the extensive submissions made by the respective parties,

that emerges the short case of the petitioner before this Court is

that the private respondent, holders of plot No.23 at Krishna Park

society, Junagadh, and the plot holders of plot No.32 of Shri

Rajpark Society, carried out constructions in their respective plots

circumventing the development permission. As a result of this, the

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

Corporation on 06.01.2018 issued a notice under Section 260(2) of

the Act asking the private respondents to forthwith remove these

illegal constructions.

12.True it is that if the nature of the reliefs sought for in the petition

are examined, there is no relief in the nature of praying that of the

final one that the order dated 06.01.2018 be implemented. It is

only by way of an interim measure that such a relief is sought by

the petitioner. As far as the decisions cited by Mr.Masoom shah

are examined, essentially the decision in the case of Cotton

Corporation of India Limited (supra) is in the context of the Code

of Civil Procedure and it was when the Court was examining the

provisions of order 39 that an observation was made in context of

the ancillary relief and the main relief in context of a suit. As far

as Mr.Shah's submission that the petition cannot be entertained so

as to short-circuit the civil remedy for which he relied on the

decision in case of Swetambar Sthanakwasi Jain Samiti and

another (supra), when examined in the facts of the case before the

Supreme Court, it was in context of the party approaching the High

Court without exhausting the remedy of an appeal of the District

court against the order of Civil Judge. It need not be reiterated that

when Court exercises it's jurisdiction under Article 226 of the

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

Constitution of India, the Court can and ought to do complete

justice in exercise of powers under Article 226 of the Constitution

of India. The fact that the petitioner approached this Court and

withdrew his petition and abandoned his challenge to filing an

application for being joined as a party could not deter him from

exercising his right under Article 226 of the Constitution of India

seeking implementation of the order passed by a public authority

viz. the respondent-Corporation.

13.Reading the affidavit of the Corporation indicates that as soon as

panchnama was drawn on 28.11.2017, the Encroachment Branch

immediately on 21.11.2017 visited the site. Notices under Section

260(2) of the Act were issued on 30.11.2017 and 14.12.2017. The

order of 06.01.2018 was a consequential fall out of these notices.

The allegation that the respondent no.3 appears to be hand-in-glove

with private respondents seems baseless in view of the submissions

made in para 38 of the affidavit-in-reply filed by the Corporation

on 05.05.2018.

14.Today, when the matter was taken up for hearing, Mr.Munshaw, at

the outset, has made a submission that the order of 06.01.2018 was

not being implemented in view of the intervening pandemic and

the festival season of Diwali. However, the statement is made at

C/SCA/6554/2018 JUDGMENT DATED: 17/11/2021

the bar that the order of 06.01.2018 shall be implemented in

accordance with law within a stipulated time frame of 45 days.

Mr.Munshaw also further states that the area which according to

the corporation has been encroached upon, has been demarcated

and it is clarified that particular area which has been demarcated

shall be demolished pursuant to the notice dated 06.01.2018.

15.Considering the fact that the order of 06.01.2018 is not a subject

matter of challenge in the petition, consequential action to see that

the orders implemented shall be taken by the respondent-Junagadh

Municipal Corporation, in accordance with law on or before

18.01.2022.

16.With the aforesaid observations, the petition is disposed of with a

clarification that the observations made in this petition shall not

have bearing on the merits of the suit that the respondents have

filed before the Trial Court.

(BIREN VAISHNAV, J) ANKIT SHAH