Dhanjibhai Thakarshibhai Borda vs Surat Municipal Corporation
2022 Latest Caselaw 10229 Guj

      C/SCA/22375/2019                                   ORDER DATED: 16/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 22375 of 2019
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                         DHANJIBHAI THAKARSHIBHAI BORDA
                                      Versus
                          SURAT MUNICIPAL CORPORATION
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
MR CJ VIN(978) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
                  Date : 16/12/2022
                   ORAL ORDER

1. By filing this petition, the petitioner has prayed to issue

writ of mandamus or writ in the nature of mandamus or any

other appropriate writ, direction or order, commanding the

respondents to immediately remove the encroachment on land

bearing Block No.177, Final Plot No.8, Village:Bamroli,

Taluka:Majura, District:Surat, and clear the entire

encroachment on the said land and give peaceful and vacant

possession of the said plot to the petitioner.

2. The brief facts giving rise to the present petition are as

follows:

2.1 The petitioner states that the petitioner is the owner of

land admeasuring 46539 sq.mtrs. bearing Block No.177, Final

Plot No.8, Village:Bamroli, Taluka:Majura, District:Surat. The

C/SCA/22375/2019 ORDER DATED: 16/12/2022

petitioner states that above referred land came to be reserved

for the purpose of Solid Waste Management by the Surat

Municipal Corporation. The petitioner states that on the said

land there is unauthorized encroachment and huts have been

constructed and people have encroached upon the said land.

The petitioner has, therefore, vide representation dated

28.02.2019 requested the Surat Municipal Corporation to

remove the encroachment on the said plot. The petitioner had

earlier also requested the Corporation to remove the said

encroachment and protect the said plot of the petitioner. The

petitioner states that the Vigilance and Inspection Officer of

the Surat Municipal Corporation vide order dated 05.03.2019

directed the respondent no.2-Executive Engineer to remove

the encroachment, if any, found on the land in question. The

petitioner states that again the Vigilance and Inspection Officer

vide communication dated 19.03.2019 instructed the

Executive Engineer to remove the encroachment and report

the same to the Vigilance Officer.

2.2 The petitioner states that on 20.03.2019 again a

representation was made on behalf of the petitioner that

though earlier directed by the Corporation to remove the

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encroachment, but encroachment has been removed and only

a false show is made that encroachment has been removed.

Along with the said letter, copies of orders passed by the

Corporation dated 05.05.2012, 08.06.2012 and 16.07.2014

instructing the officers to remove the encroachment have been

produced.

2.3 It is stated that at three boundaries of the plot, the

petitioner made compound wall but when boundary

wall/fencing was sought to be made on the side of the road,

the Corporation officers did not allow the same on the ground

that the land is placed in reservation and the watchman room

was also demolished and the corporation took responsibility to

protect the land from being encroached. The corporation, in

this regard passed various orders the following orders -

VID/358 dated 05.05.2012, VID/3099 dated 05.03.2013,

VID/160 dated 16.07.2014, VID/78 dated 06.04.2016, VID/DC/4

dated 21.06.2016 and VID/4765 dated 20.03.2017.

2.4 The petitioner states that, however, no concrete action

has been taken and therefore the petitioner again on

20.04.2019 requested the respondent authorities to remove

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the encroachment and comply with the earlier directions of the

Corporation. The petitioner states that the corporation vide

orders dated 24.04.2019 and 01.07.2019 directed its

subordinate officers to remove the encroachment.

2.5 The petitioner states that, however, since no actions

were taken, the petitioner vide representations dated

23.07.2019, 06.09.2019 and 19.09.2019 requested the Surat

Municipal Corporation to take appropriate action for removal of

the encroachment. The said representations pointed out in

detail that the officers of the Surat Municipal Corporation are

misleading the authorities by submitting a false report that

encroachment is removed, However, actually the said

encroachment was not removed and the same continued. The

petitioner also sought permission to construct the

fencing/compound wall so that the land of the petitioner can

be protected from encroachers.

2.6 The petitioner states that thereafter vide notice dated

16.10.2019 the Executive Engineer directed that the

encroachment shall be removed within a period of three days.

       C/SCA/22375/2019                      ORDER DATED: 16/12/2022




2.7     The petitioner states that vide notice dated 21.10.2019,

the petitioner was informed that encroachment would be

removed on 21.10.2019 and the petitioner shall be required to

pay the necessary charges. Accordingly, the petitioner paid the

said amount of Rs.25,000/- on 21.10.2019 and receipt thereof

has been issued by the Corporation.

2.8 The petitioner states that thereafter a report has been

sent to the higher officers of the Surat Municipal Corporation

by the Executive Engineer that the encroachment has been

removed on 21.10.2019, however, the said report is absolutely

false and only just to make a show that encroachment is being

removed, three or four huts have brought down, but entire

encroachment of all the huts have not been removed. The

petitioner therefore, vide representation dated 22.10.2019

brought the said fact to the notice of the respondents that

encroachment is not actually removed and false report is

submitted and also produced latest photographs to prove the

said fact.

2.9 The petitioner states that the petitioner had also

complained to the office of the Hon'ble Chief Minister in the

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online portal. The respondent Executive Engineer made a false

report to the Chief Minister's office online portal that

encroachment has been removed on 21.10.2019 and the

petitioner has also been sent a copy of the said report on

26.11.2019 that the encroachment has been removed.

2.10 The petitioner states that, as stated above, absolutely

false reports are being made and till date the encroachment is

subsisting. As on today, illegal liquor business is being carried

out from the said place and it is a big nuisance to the people

residing in the vicinity. The petitioner states that since the

petitioner is the owner of the said plot, the petitioner is worried

that the petitioner may be held responsible for the illegal

activities running on the plot by the encroachers.

2.11 The petitioner submits that the petitioner has been

requesting the authorities since more than 5 years to remove

the encroachments and also to permit the petitioner to put

fencing. However, it appears that the authorities are clearly

trying to help the encroachers for some oblique reasons. The

petitioner has also requested the authorities to permit the

petitioner to put fencing on the plot so that the petitioner can

C/SCA/22375/2019 ORDER DATED: 16/12/2022

protect the said plot. It is stated that since the plot in question

was reserved for the purpose of Solid Waste Management by

the Surat Municipal Corporation, the petitioner had to request

the Corporation to protect the said plot. However, the

authorities have not undertaken due care in protecting the said

plot from encroachment, which has constrained the petitioner

to approach this Hon'ble Court by way of the present petition.

3. Affidavit in reply is filed by respondent no.2 stating that it

is not clear whether the petitioner is the owner of the land in

question and, therefore, the petitioner has no right to file the

present petition. It is also submitted that present petitioner

had filed Special Civil Suit No. 24 of 2008 against Pravinbhai

Premabhal Patel and others in the Court of Additional Senior

Civil Judge, Surat for specific performance of a notarized

agreement to sell. In the plaint, petitioner had contended that

the land in question is under proposed reservation. This suit

was compromised and consent decree was drawn on 15-04-

2008 in favour of the petitioner.

3.1 It is also stated by the respondent that in wake of the

consent decree, the petitioner was holder of a decree for

specific performance against Pravinbhai Premabhai Patel and

C/SCA/22375/2019 ORDER DATED: 16/12/2022

oters. However, following the consent decree Special Civil

Application No. 14687 of 2010 was filed in this Hon'ble Court

by Pravinbhai Premabhai Patel through his power of attorney.

Reliefs as can be gathered from the order dated 14-03-2011

were (i) directing the Commissioner of the Surat Municipal

Corporation to acquire land in question of the petitioner by

invoking Section 77 of the BPMC Act and to pay the agreed

compensation as per the jantri valuation to the petitioner and

(ii) accept the proposal of the petitioner to surrender 50% of

his land to the Corporation without compensation and to allot

remaining 50% of the land to the petitioner without any

encumbrances as clear Final Plot and (iii) directing the

concerned respondents to pass an order for de-reservation of

the land bearing Final Plot No.8 of Town Planning Scheme No.

56, Bamroli, in view of the fact that the said Town Planning

Scheme is at present at the stage of draft scheme. It was

observed in the order that the petitioner had not pressed for

the third relief. After hearing all the parties to the proceedings

the petition was dismissed by this Hon'ble Court. it may be

pertinent to note that though consent decree for specific

performance was passed in favour of the petitioner on 15-04-

2008 the petition was filed by Pravinbhai Premabhai Patel,

C/SCA/22375/2019 ORDER DATED: 16/12/2022

who contended on affidavit that he was the owner of the land

in question. Present petitioner was not joined as a party to said

proceedings.

3.2 Being aggrieved by dismissal of Special Civil Application

No.14687 of 2010 Letters Patent Appeal No. 906 of 2011 was

preferred In this Hon'ble High Court. The Letters Patent Appeal

No. 906 of 2010 is pending awaiting final disposal. Present

petitioner was not Joined as party In the appeal since he was

not a party in the petition. Therefore, the present petitioner

appears to have moved an application for being joined as party

to the proceedings. That the petitioner has suppressed all

these facts in the present petition and, hence, the petition of

the petitioner deserves to be dismissed. In paragraph 6 of the

oral judgment in Special Civil Application No. 14687 of 2010,

learned Single Judge had issued directions to the Surat

Municipal Corporation to pursue acquisition of the land in

question. However, on Civil Application No. 6624 of 2011 filed

in Letters Patent Appeal No. 906 of 2011 the Division Bench

had vide its order dated 22-06-2011 stayed the directions

given by Learned Single Judge. The effect of stay Granted by

the Division Bench of this Hon'ble Court is that the

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Surat Municlpal Corporation Is now restrained from acquiring or

initiating any steps for acquiring the land for the purpose of

proposed reservation.

3.3 It is stated by the respondent that the petitioner was

having a decree for execution of Sale Deed in his favour

against Pravinbhal Pramabhal Patel in Special Civil Suit No. 24

of 2008. It is learnt that before the sale deed could be

executed in favour of the petitioner and after the proceedings

in this Hon'ble High Court by way of Special Civil Application

No. 14687 of 2010 and Letters Patent Appeal No. 906 of 2011,

Pravinbhal Premabhal Patel died on 30-03-2012. Accordingly,

heirs of deceased Pravinbhal Premabhai Patel claimed to be

successors and heirs to the land in qeustion. Against mutations

of their names as heirs of late Pravinbhai Premabhal Patel to

the property, revenue proceedings were initiated by the

present petitioner. The revenue proceedings are pending. It is

contended by the petitioner that the heirs are not interested in

executing sale deed in favour of the petitioner. Therefore, the

petitioner has no right title or interest over the land in

question.

       C/SCA/22375/2019                       ORDER DATED: 16/12/2022




3.4     It is stated by the respondent that the heirs appear to

have challenged consent decree in Special Civil Suit No. 24 of

2008 in District Court at Surat. Division Bench of this Hon'ble

Court had taken note of this fact in Letters Patent Appeal No.

906 of 2011. Vide order dated 10-08-2017 Division Bench of

this Hon'ble Court has noted that the appeal against the

consent decree is pending. Therefore, when the title of the

petitioner is not clear or any right over the property is not

crystallized, the petitioner does not have any right or authority

to file the present petition. It is also stated since Surat

Municipal Corporation is refrained by Division Bench vide its

order dated 22-06-2011 from implementing directions about

acquisition of the land in question, Surat Municipal Corporation

cannot acquire the property. It is further stated that Surat

Municipal Corporation does not have possession of the

property and so also it will not have any authority to take any

action as prayed for by the petitioner in the present petition. It

is stated that proceedings challenging title and Interest of the

petitioner over the land in question are subject to legal

scrutiny by competent Court, the petitioner does not possess

any right to prosecute present petition and hence the petition

of the petitioner deserves to be dismissed with costs. All these

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facts are suppressed by the petitioner, therefore, the petition

petitioner deserves to be dismissed with costs.

4. Affidavit in rejoinder is filed by the petitioner stating that

the respondent-Corporation is not willing to undertake the

statutory duty cast upon it. It is contended that if the title of

the petitioner was in doubt, the Corporation would not have

issued various notices to the petitioner and would not have

asked the petitioner to pay fees for undertaking demolition

work on subject land. It is further contended that the

proceedings of Special Civil Application and Letters Patent

Appeal have nothing to do with present proceedings, as the

said proceedings are with regard to acquisition of land. Not

only that the petitioner has made complaints about illegal

activities being carried out on the land in question, inspite of

that no action is taken.

5. An additional affidavit is filed by respondent no.2 stating

that land bearing Block No. 177 situated in Village-Bamroli was

originally reserved for Solid Waste Disposal. Petition was filed

by the original owner Pravinbhai Premabhai Patel in this

Hon'ble Court being Special Civil Application No.14687 of 2010

C/SCA/22375/2019 ORDER DATED: 16/12/2022

praying for various reliefs. This petition was disposed of with

directions to the Government to undertake proceedings under

the Land Acquisition Act. Order of Learned Single Judge in

Special Civil Application No. 14687 of 2010 was challenged by

way of Letters Patent Appeal No. 906 of 2011. The Appellate

Court was pleased to stay the directions issued by Learned

Single Judge to the Government. At present the Letters Patent

Appeal is pending and is awaiting final disposal. It is stated

that in the meanwhile the State Government issued

Notification bearing No. GH/V/157 of 2020/DVP-142018-5731L

dated 08-10-2020 along with Development Plan-2035.

According to the Notification land bearing Block No.177 is de-

reserved as Solid Waste Disposal and is placed in Residential

Zone. Notification further stipulates that out of the total land of

Block No.177, 50% of the land shall be permitted to be used

for public purpose under the Town Planning Scheme, by the

land owner.

6. Heard learned advocate Mr.Dipen Desai for the petitioner

and learned advocate Mr.C.J.Vin for the respondents at length.

Perused the material placed on record.

C/SCA/22375/2019 ORDER DATED: 16/12/2022

7. Learned advocate Mr.Dipen Desai for the petitioner has

vehemently reiterated the facts narrated in the memo of the

petition. He has vehemently submitted that the petitioner is

the owner of the land in question and the plot was reserved for

solid waste management and now that reservation has been

lifted. He has submitted that the petitioner is not getting clear

and vacant possession of the land. He also submitted that the

petitioner has made several representations to the authority

for possession and as there was encroachment upon the land,

he has requested to remove the same. Mr.Desai, while

referring to the documentary evidence on record, has

submitted that the respondent authority has made paper work

showing that encroachment has been removed, however,

encroachment is still there. He has also submitted that the

petitioner has also sought permission for construction of

compound wall on the land in question so that nobody can

encroach upon it. He has also submitted that even the

respondent has issued notice to the petitioner and the

petitioner has also paid charges for removal of encroachment.

He has submitted that when Town Planning Scheme has been

implemented, it is the duty of the authority to give vacant

possession of the land to the petitioner.

       C/SCA/22375/2019                                  ORDER DATED: 16/12/2022




7.1     Mr.Desai, while referring to the order passed in Special

Civil Application No.14687 of 2010 as well as Letters Patent

Appeal No.906 of 2011, has submitted that even the

respondent has not denied the contention of the petitioner

regarding encroachment over the land in question. He has also

referred to contention of the respondent in affidavit-in-reply to

the effect that now the land is de-reserved from solid waste

management and is placed under residential zone. He has

submitted that even if de-reservation of the plot is done, it was

for public purpose and, therefore, it is the bounden duty of the

authority to hand over the vacant possession of the land to the

petitioner. He has prayed to allow present petition.

8. Per contra, learned advocate Mr.C.J.Vin for the

respondent has vehemently submitted that the petitioner is

not the owner of the land and there is dispute as to the title

and civil litigation is pending. He has also submitted that the

petitioner himself has filed suit against the original owner of

the land for implementation of agreement to sell and since

original owner has died, his heirs have filed appeal against the

order of Civil Court, wherein consent decree has been passed.

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He has also submitted that as per the order passed in Special

Civil Application No.14687 of 2010, this Court has rejected the

same, which was filed by original owner through power of

attorney holder and against which Letters Patent Appeal was

preferred, wherein also stay is granted by this Court. He has

submitted that since title of the petitioner is disputed, the

petitioner has no locus standi. He has submitted that the

petitioner may claim it from the Government. He has also

referred to the notification de-reserving the plot and

observations made therein that owner of the land shall

contribute 50% of the land for public purpose. He has prayed

to dismiss present petition.

9. In rejoinder, learned advocate Mr.Dipen Desai has

submitted that the respondent-Corporation itself has issued

notice under Section 260 (1) of the Gujarat Provincial Municipal

Corporation Act, 1948 for removal of encroachment, which

shows that the respondents are in knowledge that the

petitioner is the owner of the land. He has also submitted that

consent decree has been passed in favour of the petitioner and

the petitioner is only seeking relief of removal of

encroachment from the land in question and for giving vacant

C/SCA/22375/2019 ORDER DATED: 16/12/2022

and peaceful possession of the plot to the petitioner. He has

prayed to allow present petition.

10. Considered the submissions made on behalf of both the

sides coupled with material placed on record. It appears that

prior to filing of this petition, predecessor in title of the land

viz. Pravinbhai Patel has filed Special Civil Application

No.14687 of 2010, wherein it was prayed to pass an order of

de-reservation of the land within specified time as deemed fit

in the facts and circumstances of the case or directing the

Corporation to acquire land by way of private negotiations as

provided under Section 77 of the Bombay Provincial Municipal

Corporation Act, 1948 and, in the alternative, clear Final Plot

without any encumbrance be allotted to the petitioner in

accordance with law. Copy of the order passed in aforesaid

Special Civil Application is placed on record at page 125

onwards. It appears that the petitioner therein wanted to lift

de-reservation of solid waste. Now, as per the admission of the

petitioner, reservation has been lifted from the solid waste and

it is converted into residential zone.

11. It also appears from order of this Court passed in Special

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Civil Application that after considering the submissions of both

sides, which included prayer of removal of encroachment as

well as for acquiring the land through negotiations under

Section 77, this Court has dismissed the petition. However,

direction was issued to follow the provisions for acquiring the

land under the Land Acquisition Act. Thus direction came to be

challenged by the petitioner by filing Letters Patent Appeal

No.906 of 2011, wherein the direction regarding adoption of

procedure of land acquisition came to be stayed.

12. It also appears from record that present petitioner has

filed Civil Application for joining party No.1142 of 2015 in

aforesaid Letters Patent Appeal. Order passed in that

application dated 10.8.2017 is placed at page 140 by the

respondent. Thus, present petitioner has sought permission for

joining him as party in the Letters Patent Appeal. However, the

fact remains that petition filed for removal of encroachment

and for clear possession of the land by the predecessor in title

of the petitioner has already been dismissed by this Court

against which Letters Patent Appeal is pending. Of course, it is

the stand of the petitioner that those proceedings have no

bearing on the present issue, as the said proceedings were

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with regard to undertaking acquisition of land in question,

whereas present dispute is with regard to removal of

encroachment over the land in question. It is contended that

even the Corporation has started removal of encroachment

and, therefore, since this petition is only for removal of

encroachment over the land, prayer of the petitioner be

allowed.

13. It is pertinent to note that the respondent-Corporation

itself has issued notice for removal of encroachment over the

land. Therefore, so far as the request of the petitioner for

removal of encroachment is concerned, the same is proper.

However, so far as handing over possession to the petitioner is

concerned, it transpires that there is some civil dispute

pending for the same before Civil Court. Under these

circumstances, when the title over the land is disputed and

litigation is pending before the Civil Court, possession of the

land cannot be granted to the petitioner, unless and until the

concerned Civil Court decides the question of title in favour of

the petitioner.

14. Under these circumstances, prayer regarding removal of

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encroachment from the land in question needs to be granted

and the respondents are required to be directed to see that no

encroachment is made over the plot. At the same time, the

question of handing over possession needs to be decided on

the basis of decree that may be passed by the competent Civil

Court.

15. In view of above, present petition is liable to be partly

allowed. Therefore, the petition is partly allowed. The

respondent authority is hereby directed to see to it that

encroachment over the land bearing Block No.177, Final Plot

No.8, Village:Bamroli, Taluka:Majura, District:Surat, is removed

and that no encroachment is made on the land in future. So far

as prayer regarding handing over peaceful and vacant

possession of the land is concerned, the same shall be decided

on the basis of the decree that may be passed by competent

Civil Court before whom the dispute is pending. No order as to

costs. Direct service is permitted.

(DR. A. P. THAKER, J) R.S. MALEK