Gujarat High Court
Vithalbhai Ishwarbhai Vanand vs State Of Gujarat on 23 September, 2021
Bench: Mr. Justice R.M.Chhaya, Biren Vaishnav
C/LPA/834/2021 ORDER DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 834 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 22342 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 834 of 2021
With
R/LETTERS PATENT APPEAL NO. 835 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23094 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 835 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23094 of 2017
==========================================================
VITHALBHAI ISHWARBHAI VANAND
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR BOMI H SETHNA(5864) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 23/09/2021
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA)
1. Common judgment and order is under challenge in
both the appeals and facts arising in these appeals
are also similar and identical and hence, both the
appeals were heard together and are disposed of by
this common order.
2. Heard Mr. Bomi Sethna, learned advocate for the
C/LPA/834/2021 ORDER DATED: 23/09/2021
appellants and Mr. Meet Thakkar, learned AGP for the
State of Gujarat on advance copy.
3. Feeling aggrieved and dissatisfied by the common
judgment and order dated 15.10.2019 passed by the
learned Single Judge (Coram : Bhargav D. Karia, J.)
in SCA Nos. 22342 of 2017 and 23094 of 2017, both
these appeals are preferred by the original
petitioners.
4. Following facts emerge from the record of these
appeals -
4.1 In the year 1980-1981, the respondent Gujarat
Housing Board launched a housing scheme in the name
of Vivekanandnagar Site and Service Part-2 to
rehabilitate poor people living in slums and slum
clearance cell of the respondent no.2 planned to give
1400 houses to the needy people. It is the case of
the appellants that the allotment in their favour was
made somewhere in the month May, 1981 and they
initially deposited Rs. 100/- and Rs. 600/- as per
the scheme. It is the case of the appellant in LPA
No. 834/21 that he was allotted house no. 6/511 and
the appellant in LPA No. 835/21 was allotted house
no. 6/510. It is further the case of the appellants
that they regularly paid a sum of Rs. 36/- as monthly
installment as per the scheme. The appellants
approached this Court on the basis that their houses
are removed in order to facilitate multistorey
building in the name of Mukhyamantri Awas Yojna in
the year 2017 and the said action was challenged by
C/LPA/834/2021 ORDER DATED: 23/09/2021
the petitioners on various grounds.
4.2 The respondent Housing Board appeared before
this Court and pointed out that the respondent Board
has undertaken procedure for eviction under the
Gujarat Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 (hereinafter referred to as the
'Act') and thereafter the possession is taken. After
considering the contentions raised by both the sides,
the learned Single Judge was pleased to dismiss both
the petitions. Being aggrieved by the same, the
present appeals are filed.
5. Mr. Sethna, learned advocate appearing for the
appellants has reiterated the contentions which were
raised before the learned Single Judge and contended
that in similarly situated cases, the possession has
been given back. According to Mr. Sethna, the
appellants-original petitioners are being
discriminated. Mr. Sethna also further pointed out
that similarly situated persons have been protected
and therefore, appropriate protection also needs to
be given in the case of the present appellants. On
the aforesaid grounds, it was therefore contended by
Mr. Sethna that the appeals require consideration and
the respondent authorities may be directed
accordingly.
6. No other or further submissions have been made.
7. Upon considering the submissions made and on
perusal of the record of these appeals, it is
C/LPA/834/2021 ORDER DATED: 23/09/2021
revealed that a show-cause notice came to be given by
the Gujarat Housing Board and its authority under
Section 4(1) of the Act in the name of the original
allottee, i.e., mother of the original petitioner, on
27.08.2007 for payment of outstanding dues of Rs.
25,224.50. It is evident from the record of the
appeal that even a public notice came to be given and
after duly following the procedure as prescribed
under the Act, the possession has been taken by the
respondent Board.
8. The learned Single Judge has considered the
affidavit-in-reply of the respondent Board in extenso
and has also considered the submissions made by the
learned advocate for the appellants. It would be
profitable to refer to paras 16 and 17 of the
judgment, impugned in these appeals -
"16. Having considered the submissions made
by both the sides and having gone through
the materials available on record, it appears
that, so far as Special Civil Application No.
15525 of 2012 is concerned, the same is
dismissed for want of prosecution vide order
dated 08.06.2017 passed by this Court,
whereas, Special Civil Application No.14240
of 2015 is concerned, the exparte interim
order was passed, against which the Letters
Patent Appeal No.522 of 2016 was preferred
by the GHB and others and the Division Bench of
this Court disposed of the Letters Patent
Appeal vide an order dated 13.06.2017 by
directing the respondent GHB to place the action
taken under the Act, 1972 before the
learned Single Judge for consideration at
the time of disposal of the petition, by
observing as under:
C/LPA/834/2021 ORDER DATED: 23/09/2021
"3. In this case, it is contended by
learned counsel, Mr. Nakrani that the
appellants have already taken steps
for eviction of original petitioner by
following the provisions of the Public
Premises (Eviction of Unauthorized
Occupants) Act, 1971 and possession
was also taken by conducting panchnama.
If that be so, the same can be placed
before the learned Single Judge for
consideration at the time of disposal of
the petition. Having regard to the
limited scope involved, we do not
find any merit in this appeal so as
to interfere in the order passed by
the learned Single Judge. We request
the learned Single Judge to dispose of
the Special Civil Application itself as
expeditiously as possible. The appellants
are granted liberty to move
appropriate application before the
learned Single Judge for expeditious
disposal of Special Civil Application
No.14240 of 2015. Subject to such
observations, this Letters Patent Appeal
is dismissed. Accordingly, Civil
Application also stands dismissed."
17. In these petitions, the respondent nos.
2 and 3 have placed on record the action taken
by the respondent GHB under the Act 1972,
in the year 2007. It appears that in all total
84 plots which were unauthorizedly occupied
were repossessed by the respondent nos. 2
and 3 by following due process under the
Act, 1972. In the case of the petitioner
of Special Civil Application No. 23094 of
2017, an option was also given to the
petitioner to allot him a plot at
Vinubabhavenagar at Vinzol instead of
Vivekanandnagar site and service scheme, on
13.05.2008,within 10 days of the consent letter
to be given by the petitioner, but the
petitioner failed to give any consent letter to
pay Rs.14,000/, and therefore, the option
C/LPA/834/2021 ORDER DATED: 23/09/2021
was not exercised by the petitioner within 10
days and the consent letter given on 12.06.2008
was therefore could not be considered by
the respondent nos.2 and 3. It appears
that the petitioners in both the petitions
thereafter have approached this Court almost
after 9 to 10 years by creating a cause of
action by filing an application under the
Right to Information Act,2005.
In such circumstances, it cannot be said
that any of the fundamental rights of the
petitioners is violated as the possession of the
plots allotted by the respondent nos.2 and 3 was
taken in accordance with law after following due
process under the provisions of the Act, 1972.
The petitions therefore fail and are accordingly
dismissed. Notice is discharged with no order as
to costs."
9. The schemes like the present one is for
betterment and for the benefit of the similarly
situated persons, who stay in slums. The purpose for
which the actions have been taken is that the
occupants were in unauthorised occupation and after
duly following the process, the possession is taken.
There is nothing on record to show that the orders
passed by the competent authority under the Act has
ever been challenged by the appellants or the
deceased and as rightly noted by the learned Single
Judge, the present petitions are filed after a long
time. Apart from that, the fact remains that the
original allotment is of the year 1981 and as stated
in the order impugned, the order under the Act was
passed and possession was taken by drawing panchnama
way back on 01.12.2007. The said fact is not
controverted by the appellants.
C/LPA/834/2021 ORDER DATED: 23/09/2021
10. In totality of the aforesaid facts, we are in
total agreement with the observations and conclusions
arrived at by the learned Single Judge. We do not
find any error which warrants interference by this
Court in its appellate jurisdiction. The appeals
therefore fail and are hereby dismissed.
11. As the appeals are dismissed, the connected
Civil Applications are also disposed of.
(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)
(BIREN VAISHNAV, J)
BIJOY B. PILLAI
