Akhil Bhartiya Bhavri Samaj Seva ... vs Surat Municipal Commissioner
2023 Latest Caselaw 796 Guj

      C/LPA/487/2022                          JUDGMENT DATED: 01/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 487 of 2022
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 14240 of 2021

=============================================
        AKHIL BHARTIYA BHAVRI SAMAJ SEVA SANGH TRUST
                             Versus
               SURAT MUNICIPAL COMMISSIONER
=============================================
Appearance:
MR LOGANATHAN DURAI(5948) for the Appellant(s) No. 1,2
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
=============================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                              and
           HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

Date : 01/02/2023

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of this appeal under clause 15 of the Letters Patent

Appeal, appellants - original petitioners have challenged the

legality and validity of the order dated 24.02.2022 passed by the

learned Single Judge in Special Civil Application No. 14240 of

2021.

2. Appellants who are the original writ applicants have come

forward in Special Civil Application with a cause that petitioner

no. 1 - Trust represented by one of the trustees, is a Trust

C/LPA/487/2022 JUDGMENT DATED: 01/02/2023

consisting of members of petitioner Samaj basically engaged in

making idols of Hindu God like Ganesha, Durga, Dasha Mata,

Kali Mata etc., and it is an old age traditional occupation of

them since their forefather. It is contended that members of the

petitioner - Trust started facing difficulties from the respondent

Surat Municipal Corporation (for short "SMC") on account of

development work which has been carried out in the City of

Surat and on account of such hardship being faced by the

members, Bavri Samaj community approached the Human

Rights Commission initially to redress their grievance basically

for allotment of houses to Bavri samaj people who are living on

footpath, open canal and khadi area and also at places under fly

over bridges. It is the case of petitioners that several

representation is stated to have been made and in response to

that, most of the zone of Corporation completed survey no. 1

and sent a copy to the Head Office and thereby the Corporation

allotted 217 houses after completing necessary procedure like

taking deposit and fixing the amount of EMI per month on the

basis of allotment in Vadod Village, Pandesara, Surat.

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2.1. It is the case of petitioners that petitioner - Trust made

survey and found that total number of families living in Surat

are approximately 900 in numbers. Somewhere in the year

2015, Bavri community people had approached Human Rights

Commission for their housing issues since Corporation removed

them from footpath shelters whenever any VIPs were passing

through and on account of such issues, according to petitioners,

the Human Rights Commission directed the authority to conduct

the survey in the City of Surat about Bavri community members

of Surat City and their population and in turn provide and allot

houses to community members from the Corporation sources

like Pradhan Mantri Awas Yojna, Mukhya Mantri Awas Yojna

etc., without any draw system.

2.2. It is the case of petitioners that pursuant to that one spot

survey in the night was conducted wherein, it was found that

700 family members are living in Surat of Bavri samaj and in

turn the respondent Corporation passed a Resolution ordering

zonal officers to meet the Bavri community people and call upon

them to fill the form for allocation of SMC houses. The people

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from the Katargam zone accordingly vacated their places and

settled in Udhna zone where there are more than 400 families

living in said zone. Despite the said allocation of SMC houses,

officers of the Corporation of Udhna zone are not obeying the

Resolution/Order of respondent Corporation and are not

carrying out any procedure to allot the houses. Later on, as a

part of Step-2 procedure on the basis of information and

verification, tokens were issued to Bavri community people and

up to this process i.e. of Step-2, 50% of most of the zones,

except Udhna zone, allocation of houses was done and on

account of such procedure, deposit of Rs.3,500/- is being taken

and per month installment was determined at Rs.400/- by way of

EMI and according to petitioners some other different zone in

which also large number of members are still waiting for such

process of allocation of residence are yet to be allotted houses.

2.3. It is the case of petitioners that respondent - Corporation

opened the doors of the house and gave each family lock & key

etc., and called upon them to reside in said houses and also

provided even electricity in the old house and sent electricity

C/LPA/487/2022 JUDGMENT DATED: 01/02/2023

bills as well as tax bills every year which tax bills/vera bills are

being sent to the persons who are residing within the

Corporation limit in different zones. It is the case of petitioners

that Bavri community members who were not regularly allotted

house had accepted the temporary allotment and started

residing in houses at Vadod, Pandesara, Surat and some 400

families were settled. But later on, on July, 2017 upto 2021,

without giving prior notice, the team of nearly 50 corporation

people/ officers along with 15 police staff personnel entered

Vadod Village and vacated those 400 families from their houses

which were given by the Corporation as temporary measure and

the said operation started from 9:00 am to 5:00 pm when there

was heavy rain in the area. This has resulted into dharna

procession by the members and as such, their grievance is that

large number of members namely, around 400 are basically

homeless despite the order of Human Rights Commission

direction and even 218 families who have been relocated, their

structural house is also in very bad shape and as such, by

making such assertion on oath in the petition, Special Civil

Application was filed before this Court, which was numbered as

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Special Civil Application No. 14240 of 2021 for the reliefs which

are indicated in paragraph 8 in the petition.

3. The said petition came up for consideration before the

learned Single Judge, who after heard both the sides was

pleased to dismiss the same by order dated 24.02.2022 and it is

this order which is made the subject matter of present Letters

Patent Appeal before us.

4. Mr. Loganathan Durai, learned advocate appearing on

behalf of the appellants-petitioners has persuaded the Court to

issue notice vide order dated 21.04.2022 and after receipt of the

said notice, respondent - Corporation has appeared through Mr.

Dhaval Nanavati and learned advocates have requested the

Court to take up the hearing of present Letters Patent Appeal.

Hence, we have heard both the learned advocates.

5. Mr. Durai, learned advocate appearing on behalf of the

appellants-petitioners has submitted that learned Single Judge

has not appreciated the fact that respondent Corporation is a

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local body and it is expected to treat all the citizens of the

Country without any discrimination of race, colour, caste,

religion or affiliation of any political party. It has been

contended that in the year 2008 itself, respondent Corporation

had passed a Resolution to provide housing accommodation to

those members who are residing on footpath, but respondent -

Corporation has not properly projected the stand before the

learned Single Judge and rather has misdirected. It has been

contended that Pradhan Mantri Awas Yojna was meant for

housing accommodation to everyone and Aadhar card is the only

proof which is required as a part of eligibility criteria for any

government housing programme especially for those who are

living as footpath dwellers, and learned Single Judge ought to

have appreciated the said eligibility criteria and could not have

dismissed the petition.

5.1. Mr. Durai, learned advocate appearing for the appellants -

petitioners has further submitted that there are around 900

families belonging to Bavri community still living on footpath in

different zones of City of Surat. According to census of

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Corporation, around 700 family consisting of Bavri community

comes under OBC, and it also include nomadic tribe, and

learned Single Judge ought to have considered the issue of

members of petitioners in a sympathetic manner and ought to

have entertained the petition. Mr. Durai, has further submitted

that respondent Corporation has not even issued notice to these

members of Bavri community and out-rightly without any prior

intimation has uprooted them from pavement. On the contrary,

these members were provided with water, drainage, electricity

facilities etc., and were also paying taxes every year to the

Corporation and as such, existence of these members was not in

doubt which aspect ought to have been appreciated by the

learned Single Judge and same having not done, order passed

by the learned Single Judge deserves to be corrected. No other

submissions have been made.

6. As against this, Mr. Dhaval Nanavati, learned advocate

appearing for the respondent - Corporation has submitted that

stand taken by the appellants-petitioners is consisting of highly

disputed questions of fact and as such, same may not be

C/LPA/487/2022 JUDGMENT DATED: 01/02/2023

adjudicated in exercise of extraordinary jurisdiction and as

such, learned Single Judge has not committed any error in not

entertaining the petition. Mr. Nanavati has further submitted

that learned Single Judge while passing the order has

exhaustively dealt with the stand of petitioners and after proper

scrutiny of material on record has arrived at a conclusion that

members of Bavri samaj community are in unauthorized

occupation of the Corporation property. On the contrary, while

arriving at a conclusion learned Single Judge has examined the

communication which took place with the Corporation and has

also examined the status of the members of the community and

also examined the fact that some 265 units were allotted to the

members of Bavri samaj community and as such, the stand of

petitioners has been examined thoroughly by the learned Single

Judge and rightly not entertained the petition since there are

several disputed questions of fact involved.

6.1. Mr. Nanavati, has further contended that on the contrary

petitioners have made an attempt to secure more and more

benefits under the guise of sympathy and every now and then,

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their numbers are getting increased and further it has been

submitted that an attempt has been made by indicating that

there is a direction issued by the Human Rights Commission

upon the respondent Corporation, but in fact, looking to the

communication which took place with the Human Rights

Commission, there is no such direction and as such, petition not

only involves highly disputed questions of fact, but is also based

on an attempt to misguide the Court and as such, by drawing

the attention to the detailed reply which has been filed by the

Corporation, Mr. Nanavati has requested to dismiss the appeal

as there is no merit. In fact with the aid and assistance of

political party, petitioners are trying to apply pressure upon the

respondent Corporation for securing benefits which are

otherwise not available. Hence, this attempt must be curbed

and there is no error whatsoever committed by the learned

Single Judge in not entertaining the petition. Hence, he has

requested this Court to dismiss the appeal.

7. Having heard the learned advocates appearing for the

parties and having gone through the material on record which

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has been placed before us, it appears that somewhere in the

year 2018, the National Human Rights Commission took

cognizance of case on 06.05.2013 and directed the authorities

to submit a report and pursuant to same, it appears that SMC

has executed all the thing as per the law and in accordance with

the Resolution passed by its competent authority for providing

houses to 199 affected people. Whereas 21 affected families

since having not furnished the eligibility documents inspite of

demand, their case was not considered, but it is observed that if

they provide eligibility documents, respondent Corporation

would allot houses to such families also and Commission having

considered the report which has been placed it came to be

accepted and thereafter there is no further direction of any

nature issued though tried to project by the petitioners. The

relevant gist of the said communication dated 13.02.2018 is

reproduced hereunder :-

"The Commission took cognizance of the case on 06.06.2013 and directed the Chief Secretary, Government of Gujarat to submit a report on the complaint of the Complainant.

Pursuant to the directions of the Commission, the Commissioner, Surat Municipal Corporation, Surat has sent his report dated 18.12.2017. As per the report, the

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Surat Municipal Corporation has executed all the things as per law and in accordance with the resolution passed by its competent authority by providing houses to 199 affected people, whereas 21 affected families have yet not furnished the eligibility documents inspite of demand through the Complainant, Shri Pralad L. Rathod. If they provide the eligibility documents, the Corporation will allot houses to such families also.

The Commission has considered the report."

Aforesaid observation by National Human Rights Commission is

indicating that there was no direction of any nature came to be

issued as contended by the appellants.

7.1. Be that as it may. Still respondent Corporation appears to

have considered the claim of eligible persons from Bavri

community and it has been stated in reply affidavit that as many

as 265 units were allotted to the members of Bavri Samaj

Community, under various project and as such, it cannot be

accepted that though Human Rights Commission has issued

direction, respondent - Corporation has not adhered to same.

Hence, we hereby reject the contention of petitioners on that

issue.

7.2. Perusal of impugned order, we have noticed that while

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dealing with the claim of petitioners, learned Single Judge has

gone into various aspects and has examined the material placed

before for consideration and has arrived at a conclusion that

persons not being eligible to be allotted houses had occupied

the premises/houses which had to be allotted to needy and

eligible persons. We are satisfied with the order passed by the

learned Single Judge since same is neither suffering from any

perversity or non-application of mind nor reflects any

irregularity which may call for our interference. We deem it

proper to reproduce hereunder the conclusion arrived at by the

learned Single Judge while disposing of the petition. It reads

thus:

4. Having heard learned Advocates for the parties and having perused documents on record, it appears that one Praladbhai Rathod, Chief, Akhil Bharatiya Samaj Seva Sangh vide its complaint dated 10.04.2013 to the National Human Rights Commission, New Delhi, which was transmitted to the Chief Secretary, Government of Gujarat vide communication dated 18.06.2013 and transmitted by Joint Secretary, Urban Development and Urban Housing Department, Government of Gujarat vide communication bearing No.AHM /1020174416/T dated 16.12.2017, which is produced on page No.23 of the petition, to the Corporation, the Corporation vide communication bearing No. SUC/pit/4178 dated 18.12.2017 provided the clarification to the National Human Rights Commission, New Delhi, which is produced at page No.20 of the petition.

C/LPA/487/2022 JUDGMENT DATED: 01/02/2023

5. From the record, it also appears that upon receipt of explanation from the Corporation, the National Human Rights Commission vide communication dated 13.02.2018 informed said Praladbhai Rathod and forwarded the report dated 18.12.2017 to offer his comments, which should be received by the commission within six weeks and also requested him to furnish comments, if any, by 26.- 03.2018. It appears that neither the petitioner nor Praladbhai Rathod ever offered any /or furnished any comments within six weeks so fixed by the National Human Rights Commission.

6. Though the prayers are in the very wide spectrum, apparently, seeking direction to the respondent Corporation create a township that would cater to the need of the members of the petitioner samaj, for such wide nature of prayers,but in what manner, the petitioner is invoking the special jurisdiction of this Court, is neither pleaded nor substantiated during the course of arguments. The restricted argument thus made is to give direction to the respondent Corporation to provide residential units and that too there not being any tangible data even with the petitioner.

7. It appears that the Standing Committee of the Corporation resolved vide resolution bearing No.1905 of 2015 dated 04.08.2015 to include families of Bavri samaj under JnNURM-BSUP scheme of the Urban Development and Urban Housing Department, Government of Gujarat by modifying earlier resolution bearing No.763 /2014 dated 28.02.2014. It was further resolved that those families who have identity proof before 20.07.2007 are eligible for inclusion as a special case. On the basis of resolution bearing No.1905 of 2015 dated 04.08.2015 and as per the terms for qualifying and eligibility, only 212 families were qualified whereas only 9 families have produced proof of their identification of existence before

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2007 and therefore, in all, 212 families were approved and given sanction for allotment of EWS units as a special case.

8. The Standing Committee of the Corporation on receipt of proposal bearing No.C.ST.C /723 dated 16.07.2015 was pleased to resolve vide resolution bearing No.1905 2015 dated 04.08.2015 to include Bavri samaj community for providing premises under JnNURM-BSUP scheme of the Government on production and verification of identity proof as per the guidelines settled vide resolution bearing No.1838 of 2007 dated 28.12.2007 and resolution bearing No.814 of 2009 dated 02.07.2009 by the Standing Committee of the Corporation. The said resolution was further modified the term of resolution bearing No.763 of 2014 dated 28.02.2014 whereby the Standing Committee has modified that any community member who is having identity proof on or before 20.07.2007 was made eligible and entitled to get the premises under the scheme.

9. It appears that those members of community, who were not affected by any development project initiated by the Authority and who are not eligible and entitled to get the accommodation under the "Special Case category" are occupying the premises without any authority of law, completely in unauthorized and illegal manner and have been asked to vacate the premises and when they have not vacated the premises on their own, the staff members of the Authority with the help of the police removed all those unauthorized occupants from the premises on July 16, 2021. It is needed to be noted that during the process of removing the unauthorized occupants, unauthorized occupants have damaged the government property very badly and therefore, a police complaint was registered with the Pandesara Police Station on September 22, 2021 by the concerned Authority of the Surat Municipal Corporation.

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10. It also appears that it is a case of unauthorized occupation and lawful removal of the members of the Bavri Samaj Community. There are 612 units (which are mainly constructed to accommodate affected persons due to various developmental projects of the Surat Municipal Corporation) situated at Revenue Survey No.187 of Final Plot No.20 and 158 of Town Planning Scheme No. 63 (Vadod) and out of 612 units, 186 units were allotted to the members of the Bavri Samaj Community whereas, 79 units were allotted to the other development project affected persons, whose properties were covered and affected under various Development Project of the Authority and Government of Gujarat. In backdrop of the aforesaid factual aspect, it is needed to be noted that out of 612 units, 265 units were allotted between members of Bavri Samaj Community (186 beneficiaries) and other project affected persons (79 beneficiaries) and in all 347 units remained vacant which are to be made available to those persons whose properties where covered under Development Project."

8. In view of the aforesaid observations, we are satisfied that

the learned Single Judge has not committed any error while

arriving at a conclusion. It is trite law that while dealing with

Letters Patent Appeal, in the absence of any perversity or

material irregularity or any distinguishable material, possible

view taken by the learned Single Judge, cannot be substituted in

a routine manner and as such, relying upon the proposition of

law laid down by Hon'ble Apex Court, we are of the clear

opinion that no case is made out by the appellants calling for

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any interference or substitution of view taken by the learned

Single Judge. It would be of benefit to note the observations of

Hon'ble Apex Court in the case of Management of Narendra

& Company Private Limited v. Workmen of Narendra &

Company reported in (2016) 3 SCC 340, in this regard and we

deem it proper to quote relevant observations hereunder:

"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."

9. Further, looking at the stand which has been taken by the

petitioners, we are also quite conscious about the fact that

claim of petitioners is in the realm of disputed questions of fact

which is not possible to be examined in exercise of

extraordinary jurisdiction. What number of members are

eligible, how the authorities have dealt with and how many

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members are still falling within the various schemes as

contended by learned counsel appearing for petitioners, are all

aspects which are seriously in dispute and requires adjudication

and as such, we are of the view that said aspect cannot be gone

into in exercise of extraordinary jurisdiction. Hence, relying

upon the decision of Hon'ble Apex Court on the issue of exercise

of extraordinary jurisdiction on disputed questions of fact, we

are of the opinion that on this count also, learned Single Judge

has rightly not entertained the petition. Following are the

observations made by the Hon'ble Apex Court in the case of

Union of India & Ors., v. Puna Hinda reported in (2021) 10

SCC 690 which we deem it proper to quote hereunder:

"24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing

C/LPA/487/2022 JUDGMENT DATED: 01/02/2023

the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads."

10. Apart from that even independently we have gone through

the record which is placed before us, particularly, the detailed

affidavit which has been filed by the Surat Municipal

Corporation on page 63 onwards of petition compilation. On

perusal of said detailed affidavit raising issues relating to locus

of petitioners and other aspects, we are satisfied that no case is

made out by the appellants calling for our interference. On the

contrary, a serious allegation is made against the petitioners

that with the aid of political party they are trying to apply

pressure and using threatening language to the officers of the

Corporation and hence we are also of the opinion that petition

even otherwise ought not to have been entertained and same

has rightly not been entertained. Hence, considering the overall

situation and the material placed on record, we are of the

opinion that no case is made out to entertain the appeal. Hence,

we deem it proper to dismiss the appeal by confirming the order

passed by the learned Single Judge. However, we make it clear

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that disposal of this appeal may not deter petitioners from

availing any other remedy which may be available to them

under any other law.

11. We proceed to pass the following

:ORDER:

(i) Letters Patent Appeal is dismissed and order passed by the learned Single Judge dated 24.02.2022 in Special Civil Application No. 14240 of 2021 is hereby affirmed.

(ii) All pending applications stand consigned to records.

(iii) Cost made easy.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J) phalguni