Atul Shankerlal Makwana vs State Of Gujarat
2023 Latest Caselaw 7383 Guj

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     C/SCA/16341/2023                                   ORDER DATED: 06/10/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16341 of 2023
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                        ATUL SHANKERLAL MAKWANA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 06/10/2023
                   ORAL ORDER

1. By this petition, the petitioners have prayed for issuance of mandamus, directing the authorities of the Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation") not to demolish the subject properties of the petitioners without following any procedure of variation of T.P. scheme no.52, Ghodasar North, sanctioned under the provisions of Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act of 1976").

2. Briefly stated are the facts. The petitioners are the owners and occupiers of plot/bunglow no.31 with a boundary wall and gate, situated at Gitakrupa Co-operative Housing Society (hereinafter referred to as "the Society"). Agreement to sell was entered into in the year 1979 with Kharawala group to purchase the land situated at survey no.294 admeasuring acre 1-31 gunthas, followed by permission for construction in the year 1986. By virtue of an understanding between the parties in the year 1987, the society has been permanently allowed to have the access to 25 feet wide road passing through survey nos.299, 300 and 311. The said arrangement was by virtue of registered sale deed in favour of the

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society by the owners of survey nos.299, 300 and 311. After receipt of the permission, the construction was made, followed by building use permission.

2.1. According to the petitioners, the father of the petitioners has purchased the plot in the said society for which, share certificate has been issued in his name and the petitioners are residing there since more than four decades. According to the petitioners, neither there is any illegal construction nor encroachment over the plot; however, the chairman of the society is attempting to influence the Corporation and, in turn, the officials of the Corporation have threatened the petitioners to remove the compound wall, failing which, the Corporation shall demolish the same without following the due process. Hence, the captioned writ petition.

3. Mr.K.V. Shelat, learned advocate for the petitioners submitted that the petitioners are the members of the society and possessing share certificate and hence, have the locus to file the captioned writ petition. On 03.09.1987, sale deed has been executed, giving right of way to the society, which is clear from the recitals contained in the sale deed and therefore, right is available to the society, so far as 25 feet wide road is concerned. It is further submitted that the permission was granted in the year 1998 to construct the tenement as per the sanctioned plan dated 20.05.1991 and therefore, the construction has been put up by the society strictly in accordance with law and the petitioners have been residing there since last more than 4 decades.

4. It is next submitted that the petitioners had applied under the Right to Information Act, 2005 and in response whereof, the Corporation informed that the road, which is available to the society

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as per the preliminary town planning scheme, is 6.00 mtrs. wide T.P. road and with the help of the police personnel, has been made available for use of the public at large and there is no encroachment. It is submitted that the society has requested the estate department to widen the road inasmuch as, the ambulance or other services are unable to have the access.

4.1. It is also submitted that two communications dated 03.01.2022 and 28.07.2022 were issued, requiring the society to deposit an amount of Rs.40 lacs towards expenses incurred for variation; however, till date, the society has not deposited any amount towards the variation. Despite which, the petitioners have an apprehension that the officers will vary the scheme without following due process of law.

4.2. It is further submitted that the location of the plot of the petitioners is at the boundary of survey no.294, which is adjoining the 6 feet road and on the other side of the road, there is Giriraj society. Officials of the Corporation therefore, at the instance of the office bearers of the society, are threatening the petitioners to demolish the compound wall. It is submitted that the petitioners have not put up any illegal construction or encroachment on any part of the land, which would warrant any demolition on the part of the petitioners. It is therefore, submitted that the petitioners have approached this Court with a foundational fact situation and hence, there is a strong apprehension on the part of the petitioners that the authorities will take action without following any procedure.

4.3. It is submitted that though right to possessing property is not a fundamental right but, it has been elevated to Article 21 of the Constitution of India i.e. right to life and liberty. Therefore, it is not

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that the petitioners, on the basis of any fanciful apprehension, have filed the captioned writ petition but, as the petitioners have been threatened, they have approached this Court and cannot wait till the demolition takes place.

4.4. Reliance is placed on the judgment of the Apex Court in the case of Kavalappara Kottarathil Kochunni @ Moopil Nayar vs. The State of Madras and others reported in AIR 1959 SC 725 wherein, it has been held and observed that when an Act is enacted and by which, fundamental rights of the parties are infringed, in such a case, infringement is complete eo instanti the passing of the enactment and, therefore, there can be no reason why, the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under Article 32. It has also been held and observed that to say that a person, whose fundamental right has been infringed by mere operation of an enactment, is not entitled to invoke the jurisdiction under Article 32, for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy, which is itself his fundamental right.

4.5. Reliance is also placed on the judgment of the Apex Court in the case of S.M.D. Kiran Pasha vs. Government of Andhra Pradesh and others reported in (1990)1 SCC 328. It has been held and observed that the protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent

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resorts to Article 226 of the Constitution is permissible.

4.6. It is therefore, submitted that the petitioners have been threatened and therefore, the captioned writ petition is very much maintainable. It is further submitted that a person, who is holding a legal right under the provisions of Article 21 of the Constitution of India, is very much entitled to the protection on the imminent threat extended by the officials of the Corporation. It is submitted that the apprehension is based on the recent development wherein, the members of the political parties, together with the officials of the Corporation, have visited the society and orally informed the petitioners to remove the boundary wall. It is therefore, submitted that on the basis of the apprehension, which is not fanciful, captioned writ petition is maintainable. It is submitted that the extraordinary powers conferred under Article 226 of the Constitution of India are larger than the powers conferred under Article 32 of the Constitution of India and therefore, this Court may exercise the powers.

5. Heard Mr.K.V. Shelat, learned advocate for the petitioners and considered the issue raised in the captioned writ petition.

6. Pertinently, the father of the petitioners has purchased the plot no.31 and the petitioners are staying there since the year 1991. Reference is also made of the execution of the registered sale deed i.e. making available the way and it appears that the owners of the respective survey numbers have allowed the usage and since the year 1987 or may be thereafter, the society has been using the way. The petitioners have filed the captioned writ petition, alleging that the officials of the Corporation and the members of the political party have visited the society and the petitioners have been

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threatened to remove the illegal construction i.e. the boundary wall. Therefore, what the petitioners are seeking, is issuance of the mandamus, directing the respondent authorities not to demolish the subject properties without following due procedure.

7. In paragraph 22 of the writ petition, the prayers, prayed for, by the petitioners read thus:-

"22.A. The Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction directing the respondents Ahmedabad Municipal Corporation authorities not to demolish the subject properties of the petitioners without following any procedure of variation of TP scheme no.52 Ghodasar North sanctioned under section 65 of Gujarat Town Planning and Urban Development Act and without following due procedure at law under said Act and Rules and without affording opportunity of hearing in the interest of justice.

B. Pending hearing and final disposal the Hon'ble Court be pleased to direct the respondent authorities to maintain status quo with regard to the subject properties in the interest of justice.

C. The Hon'ble Court be pleased to grant such other and further relief/s, in the interest of justice."

8. For claiming the abovereferred reliefs, the petitioners have narrated the sequence of events from the year 1987 i.e. purchase of the plot; development permission; issuance of building use permission and petitioners possessing the property since last more than four decades. The petitioners have also made a reference of registered sale deed and communication dated 18.12.2019, indicating that the road has been made available for usage. It is alleged that instead of removing the illegal construction of the Giriraj society, the officials of the Corporation are threatening the petitioners to remove the compound wall; however, while making such allegation, the petitioners have not placed on record anything

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to suggest that officials of the Corporation have issued any notice or required the petitioners to remove the compound wall. The genesis of the allegation can be culled out from paragraph 17 of the petition, which reads thus:-

"17. The petitioners further state that the Gitakrupa Co-Op Housing Society limited's Chairman with his contacts is attempting to influence the Ahmedabad Municipal Corporation and Ahmedabad Municipal Corporation officials are threatening the petitioners to remove compound wall lastly in the last week of June, 2023 or else the Ahmedabad Municipal Corporation will demolish the subject property of the petitioner without issuing any notice and without following due process of law. Further even as per the Ahmedabad Municipal Corporation letter dated 28.07.2022, the Gitakrupa Co- Op Housing Society has not paid/deposited any amount or Rs.40 lacs as asked by the Ahmedabad Municipal Corporation for variation of Final Town Planning Scheme no.52 Ghodasar North."

9. In the abovereferred paragraph, it has been stated that the chairman of the society is attempting to influence the Corporation and the officials, in turn, threatening the petitioners to remove the compound wall, failing which, the Corporation will demolish the subject property. Except this, the averments made in the petition do not contain any proposed action to be taken by the Corporation. In absence of any action, proposed or actual, present writ petition, only on the basis of apprehension, cannot be entertained.

10. Considering the facts involved and grievance raised, reliance placed on the judgments would be misplaced. In the case of Kavalappara Kottarathil Kochunnimoopil Nayar (supra), preliminary objection was raised that the petition would not be maintainable until the State has taken or threatened to take any action under the impugned Act. The Apex Court, while not accepting the said objection, observed thus:-

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".....It is true that the enactments abolishing estates contemplated some action to be taken by the State, after the enactments came into force, by way of issuing notifications, so as to vest the estates in the State and thereby to deprive the proprietors of their fundamental right to hold and enjoy their estates. Therefore, under those enactments some overt act had to be done by the State before the proprietors were actually deprived of their right, title and interest in their estates. In cases arising under those enactments the proprietors could invoke the jurisdiction of this Court under Article 32 when the State did or threatened to do the overt act. But quite conceivably an enactment may immediately on its coming into force take away or abridge the, fundamental rights of a person by its very terms and without any further overt act being done. The impugned Act is said to be an instance, of such enactment. In such a case the infringement of the fundamental right is complete eo instanti the passing of the enactment and, therefore, there can be no reason why -the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under Article 32....."

11. It has been held and observed that an enactment may immediately on its coming into force take away or abridge the fundamental rights of a person by its very terms and without any further overt act being done. It further held that in such a cases, the infringement of the fundamental right is complete eo instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy. In the present case, clearly, there is nothing on record to suggest that any steps are taken or in contemplation, in absence of any notice.

12. Reliance placed on the judgment in the case of S.M.D. Kiran Pasha (supra) is also misplaced inasmuch as, the petitioner therein had approached the High Court as the police have summoned him to the police station. The cases were registered by the excise authorities against the appellant therein and the appellant had

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applied for bail and was granted, rejecting the objection of the excise authority. Scenting a move to detain the appellant under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, the appellant preferred a writ petition averring, inter alia, that the successive actions initiated against him were a part of political vendetta. The Division Bench of the High Court of Andhra Pradesh on reference by the learned Single Judge, heard the writ petition and passed an order observing that the writ petition has become infructuous as the detention order was passed even before the writ petition was filed and that, there were no extraordinary or special circumstances to depart from the normal rule about the appellant surrendering first and then moving a writ of habeas corpus. The judgment was dealing with the right of appellant under the provisions of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. It is under the said circumstances, the Apex Court considered the question of maintainability and therefore, the said judgment dealing with the detention order, cannot be pressed into service.

13. It is well settled that the jurisdiction of the High Courts under Article 226 is more extensive; it is equally well settled that the Court must exercise the same with certain restraints and within some parameters. Condition precedent for invoking the powers under Article 226 is that the person applying has a legal right to the performance of legal duty by the party against whom, the mandamus is sought. Pertinently, though the petitioners are seeking mandamus, they have been unable to point out as to which of their legal right, much less, any fundamental right has been infracted and the corresponding duty on the part of the authorities to perform the

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same. Having failed to point out, infraction of any of the legal right, much less, any fundamental right, except on the supposition that the respondent officials may demolish the properties, in the opinion of this Court, prayers, prayed for in the writ petition, cannot be accepted. Discernibly, at present no steps including issuance of any notice, have been taken by the officers of the Corporation, requiring the petitioners to demolish the property. Hence, apprehension raised by the petitioners only on the basis of some photographs, annexed together with the petition, would not be in the right earnest.

14. Clearly, the petitioners have filed the petition on the basis of mere apprehension, which is unfounded and unsustainable. Besides, there is no cause of action accrued in favour of the petitioners and therefore, the petition does not warrant interference and is dismissed in limine. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh