Hiranand Budarmal Santwani vs State Of Gujarat
2022 Latest Caselaw 648 Guj

      C/SCA/7392/2014                             ORDER DATED: 19/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7392 of 2014

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                HIRANAND BUDARMAL SANTWANI & 1 other(s)
                               Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
ADVOCATE NOTICE SERVED(81) for the Petitioner(s) No. 1
HCLS COMMITTEE(4998) for the Petitioner(s) No. 2
MS G R VIJAYALAKSHMI(5047) for the Petitioner(s) No. 1
MS.P J.JOSHI(3888) for the Petitioner(s) No. 2
MR AYAAN PATEL, APP (1) for the Respondent(s) No. 1
MR PRANAV G DESAI(290) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 19/01/2022

                              ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed with the following prayer(s):-

"9(A) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents to consider the case of the petitioners for allotting alternative suitable accommodation either at the same place where the petitioners could continue their business by constructing their cabins whereby they can carry on their business and get livelihood.

(B) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, direct the respondent authorities to consider the case of the petitioners to provide them alternative accommodation at the near by places of old cabins where the petitioners can get their livelihood in the interest of justice;

(C) Pending admission, hearing and final disposal of this petition, direct he respondent authorities to consider the case of of the petitioners to protect the livelihood of the petitioners in the interest of the facts and circumstance of the case;"

       C/SCA/7392/2014                                   ORDER DATED: 19/01/2022




     (D) ..."

2. Learned advocate for the petitioners, at the outset, has submitted that the petitioners were occupying a plot admeasuring 5 ft X 5 ft i.e. 25 Sq.Ft. in Padmavati Chogan in Latheripura at the relevant time under the Ward No.1 of the Municipal Corporation. The petitioners had objected to the action on the part of the respondent to remove the cabin by treating it to be an encroachment on the government land, and therefore, the petition is filed.

3. Learned advocate for the petitioners submits that the ancestors of the petitioners and other cabin holders were migrated from Pakistan to India and under the orders of the then Maharaja Baroda they were made to settle. From time to time, the Municipal Corporation had increased the ground rent, which was taken from the similar occupants of that area i.e. Laheripura.

4. Learned advocate for the petitioners submits that the cause was agitated by challenging the eviction notice by filing Special Civil Application No.3420 of 1997, which was carried till the Apex Court, and thereafter, the Scheme has been framed by which the petitioners are entitled to an alternative premises for carrying out his business.

5. It is submitted that such land was identified at Gotri Road area, however, the petitioner submits that such area was not fit for the purpose of their business, and therefore, such plots were not occupied. It is also submitted that the petitioners and other occupants of the cabins, which were sought to be removed though were offered with an alternative, it was not in interest of

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their business, as it would not only make it inconvenient for them to travel to the newly allotted place, but will also not fetch necessary profit to sustain them.

6. It is submitted that the place where the petitioners were occupying the land and put up their cabins for business have been demolished and the same are now been used as parking area, and therefore, it is still open for the respondent- Corporation and can be allotted to the petitioners.

7. It is submitted that in this regard, the petitioners have made a representation, which may be directed to be considered.

8. Learned advocate for the respondent-corporation has submitted that the petition is not maintainable in view of the fact that the entire issue with regard to construction of Padmavati Shopping Center at Laheripua popularly known as Pandamavati Chogan has reached till the Apex Court and the Scheme, which was framed and approved by the Apex Court has already been put into effect. At the relevant time, the petitioners were also offered as per the terms and conditions of the Scheme, however, the petitioners have failed to respond, and thereafter, the entire Scheme is now put in operation and it has been so since year 2004 and it is only after period of almost 10 years, now, the petition is filed. Hence, it is requested that the petition may be dismissed.

9. Having considered the rival submissions of the parties and having perused the documents on record, at the outset, reference can be made to the decision of this Court in Special Civil Application No.3420 of 1997 and allied matters, wherein this Court vide order dated 07.08.1997 has examined the entire

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issue with regard to hawking activity in the very area by the persons, who were settled as refugees from parking at the time of partition.

10. The decision was carried before the Division Bench which has also decided by the judgment dated 06.08.2001 passed in Letters Patent Appeal No.917 of 1997. While deciding the Letters Patent Appeal, this Court has observed as under:-

"10. Now the only question which remains to be considered is the question with regard to giving the alternative sites. We find that in the past also, alternative sites had been offered, but there has been a dispute with regard to the place of the sites. Learned Single Judge has rightly held that the appellants cannot have a choice of the site once the hawking and non- hawking zones have been created by a scheme which was framed after the Supreme Court's order. When the alternative sites are offered, it is for the appellants to accept the offer of the alternative site or not. Mr.Tanna, learned Counsel for the respondent Corporation has very candidly stated before us that even now the respondent Corporation is ready to offer the alternative sites, but there cannot be any choice and for the purpose of alternative sites, genuine difficulty shall be considered without any favour or partiality. We, therefore, find that to give a descent finale to this decades old controversy on purely compassionate grounds as a matter of grace as candidly stated by Mr.Tanna, learned Counsel for the Corporation, suitable alternative sites be offered to the parties/ appellants who have not availed the offer of alternative site so far or to any one who may not have been given such offer, but it will be the last opportunity to avail such offers in the context of the statement made by Mr.Tanna, it goes without saying that offers of alternative sites shall be made without any favour or partiality and genuine difficulty, if any, of any party shall be taken in to account. Whatever decision with regard to the HC-NIC Page 29 of 30 Created On Thu Jan 20 12:30:12 IST 2022 alternative site is taken by the competent authority shall be conclusive. The respondents shall make the offer of such alternative sites afresh even now within a period of one month from the date of receipt of the certified copy of this order and it will be open for the concerned parties/appellants who may not

C/SCA/7392/2014 ORDER DATED: 19/01/2022

have availed such offer earlier to accept or not to accept such offer now and they will convey their acceptance or otherwise with regard to such offer within a period of 15 days from the date of receipt of such offer and in case they accept the offer of alternative sites, they shall occupy the same within a period of one month thereafter and until they shift to the alternative sites within this period of one month, position as obtaining today shall not be disturbed. It is also observed that in relation to this controversy or for any dispute even touching the fringes of this controversy, all Civil Courts, subordinate to High Court shall take caution that no exparte order of any nature is passed."

11. The Court also finds on record that pursuant to the directions contained in order of Letters Patent Appeal, Misc. Civil Application was also filed. Apparently, for the purpose of contempt of the Court, which also came to be disposed of by the Division Bench of this Court vide oral judgment dated 05.09.2020.

12. From the pleadings, it appears that the matter has reached till the Apex Court on the very issue of alternative was also in consideration. It is thereafter only the Scheme was framed to accommodate and provide alternative. From the pleadings, it also appears that so far as the contention regarding parking area, the same was the requirement in view of the fact that, at the relevant time, the Shopping Complex, Post Office, District and Sessions Court, Vadodara, Civil and Criminal Court, Family Court and Reservation Counters were existing in the vicinity for which the parking was required, and therefore, even if the cabins of the petitioners were in an area where now the parking area is demarcated, the same would be as per the Scheme and requirement.

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13. From the pleadings, it also appears that the respondent- corporation on 24.06.2004 were granted alternative space on the terms and conditions which were uniformly applicable to the applicants and all the occupants, who were evicted from the Laheripura area and accordingly, the respondent-Corporation had addressed a letter dated 19.02.2005 to the petitioner no.1 and the order dated 24.06.2004 in case of petitioner no.2, however, the petitioner no.4 apparently failed to avail such opportunity and has not paid the required premium as per the Scheme and that further time provided to make the payment of the premium was also not availed by the petitioner no.1. Similarly, the order passed in case of the petitioner no.2 was also not availed by the petitioner and though in the year 2004, the offer was made to the petitioner, he has not come forward and since then either before the respondent-corporation or before the Court till filing of the present petition in the year 2014 which is after a period of almost 10 years.

14. In view of aforesaid, the Court is not inclined to accept the contention of the petitioners. The petition therefore deserves to and hereby dismissed.

(A.Y. KOGJE, J) GIRISH