Gulam Mohammed Vora vs State Of Gujarat
2025 Latest Caselaw 6044 Guj

Gujarat High Court

Gulam Mohammed Vora vs State Of Gujarat on 24 April, 2025

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                       C/SCA/6790/2022                                             JUDGMENT DATED: 24/04/2025


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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                  R/SPECIAL CIVIL APPLICATION NO. 6790 of 2022


                       FOR APPROVAL AND SIGNATURE:
                       HONOURABLE MRS. JUSTICE MAUNA M. BHATT                                      sd/-
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                                    Approved for Reporting                   Yes             No
                                                                             Yes
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                                                 GULAM MOHAMMED VORA & ORS.
                                                             Versus
                                                    STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR PS CHAMPANERI(214) for the Petitioner(s) No.
                       1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,3,4,5,6,7,8,9
                       MR SAHIL TRIVEDI, LD.AGP for the Respondent(s) No. 1 & 2
                       HARSHESH R KAKKAD(7813) for the Respondent(s) No. 3
                       MR MEHUL SHARMA, LD.ADVOCATE FOR MR NITIN M AMIN(126) for the
                       Respondent(s) No. 4
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                          CORAM: HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                                         Date : 24/04/2025
                                          ORAL JUDGMENT

1. Rule. Learned AGP Mr.Sahil Trivedi waives service of Rule on behalf of respondent Nos.1 & 2. Learned advocate Mr.Harshesh Kakkad waives service of Rule on behalf of respondent No.3 and learned advocate Mr.Mehul Sharma waives service of Rule on behalf of respondent No.4.

This petition is filed with the following prayers:

"(A) This Hon'ble Court will be pleased to issue a writ of mandamus or prohibition any other appropriate writ, order or direction to quash and set aside the impugned final notices dated 18.02.2022 Annexure- I, issued to the petitioners herein by the respondent no.3 Municipality;

(B) This Hon'ble Court will be pleased to issue an appropriate writ,

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order or direction, commanding the respondent no.3 Municipality to afford an opportunity of being heard and an opportunity to produce the documents for regularization of the occupation of the huts by the respective petitioners on reasonable terms and conditions, as may be deemed fit by this Hon'ble Court.

(C) That this Hon'ble Court will be pleased to restrain the respondents, their agents and servants from removing the huts and/ or kachcha / pakka dwelling units of the petitioners from the land in question, pursuant to the impugned final notice dated 18.02.2022, Annexure-I, in any manner;

(D) This Hon'ble Court will be pleased to order to stay the further proceedings pursuant to the impugned final notice dated 18.02.2022 Annexure-I, in any manner, till pending hearing and final disposal of this petition, either from demolishing or removing the petitioners from the hutments / dwelling units occupied by the petitioners;

(E) Be pleased to pass such other and further orders as may be deemed fit and proper."

2. Facts, referred in the petition, are as under: -

2.1 The petitioners and other 25 poor people are residing on the land prior to 1988. The issue in this petition pertains to final Notice dated 18.02.2022 (Annexure "I" Page-55), whereby the petitioners were given time to remove encroachment within time referred in the notice, failing which, appropriate action of removal/demolition of encroachment has been indicated.

2.2 It is case of the petitioners that the petitioners are residing on the subject land since 1988. Earlier Executive Committee of Viramgam Municipality - respondent No.3 passed

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resolution No.5 in its meeting dated 19.12.1992 for regularization of huts occupied by the petitioners and other persons by charging them annual rent of Rs.250/-. Accordingly, list was prepared for collection of rent from such hutments.

Location of petitioners' huts are opposite to Ganga Sagar Lake on a road going towards IOC, there exist about 50 hutments and Viramgam Municipality has issued Notice for removal of such hutments despite resolution No.5 dated 19.12.1992 by respondent No.3.

2.3 Earlier for very subject land, the petition was preferred by the petitioners bearing Special Civil Application No.17289 of 2012, wherein this Court directed the Chief Officer of Viramgam Municipality (respondent No.3) to consider and decide the representation of the petitioners in accordance with law, after granting opportunity of personal hearing. Documents produced by the concerned hutments were also directed to be taken into consideration. Accordingly, Notices were issued by Viramgam Municipality, which are annexed at Annexure "R-2"

(Page-71 onwards).

2.4 Thereafter, in the petition filed by respondent No.4 being Special Civil Application No.2192 of 2015, directions were issued for allotment of suitable alternative land on payment of market price by hutments to respondent- Municipality. The

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order records that the market price for allotment of alternative plot shall be paid by the petitioners herein. The said proposal was not agreeable to the petitioners and therefore, they made representation that their cases shall be considered for regularization on the land on which they are situated. Thereafter, Notice dated 13.12.2021 was issued. In the Notice dated 13.12.2021 Annexure "G" (Page-48), it was stated that the concerned hutments are directed to give their consent for payment of market price in compliance with the directions issued in Special Civil Application No.2192 of 2015.

2.5 In response to the Notice dated 13.12.2021, the petitioners replied, wherein, it was stated that since they are residing on the subject premises since more than 28 years, they are ready to pay Jantri price for the land on which they are residing and therefore, they may be considered as occupants of the said land. Thereafter, Notice dated 18.02.2022 was issued, which is subject matter of this petition.

3. Heard learned advocate Mr.P.S.Champaneri for the petitioners, learned Assistant Government Pleader Mr.Sahil Trivedi for respondent Nos.1 & 2, learned advocate Mr.Harshesh Kakkad for respondent No.3 and learned advocate Mr.Mehul Sharma for respondent No.4.

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4. Learned advocate Mr.P.S.Champaneri for the petitioners submitted that occupation of the petitioners on subject land since many years, is not in dispute. They are poor hutments and residing there for their livelihood. Despite that, earlier Notice was issued asking them to remove from their premises on the ground of encroachment. The said Notice was subject matter of Special Civil Application No.2192 of 2015. The said petition was preferred by respondent No.4 - a private respondent on the ground that though the subject land belongs to respondent No.4, it is encroached by the petitioners and therefore, corporation may be directed to remove the encroachment.

4.1 In Special Civil Application No.2192 of 2015, this court also directed to consider the cases of the petitioners for allotment of plot on government land upon payment of requisite market price. This exercise was directed to be done within a period of seven days.

4.2 Accordingly, Notice dated 13.12.2021 was issued to the petitioners. The petitioners responded to the said Notice wherein they have stated that they are poor people and not in position to make the payment of market price. Alternative prayer is made with regard to payment of jantri price for the land on which they are residing. Ground was raised that since

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they are residing since last more than 28 years for which rent has been paid to the Municipality; considering their right of occupation, they may be permitted to pay the jantri price and land may be regularized in their favour as occupants. Despite that, no action was taken and Notice dated 18.02.2022 was issued.

4.3 Learned advocate for the petitioners submitted that Notice is illegal and respondent have erred in not appreciating that the petitioners are in occupation since many years and on payment of rent to the Municipality pursuant to earlier Resolution, their cases ought to have been considered for regularizing their land giving them status of leaseholders.

4.4 Further, as stated in the representation, they are poor people and they are not in position to make payment of market price as referred in the earlier order in Special Civil Application No.2192 of 2015. The Notice being bad in law, without considering the earlier rent paid by the petitioners, deserves to be quashed and set aside.

4.5 Learned advocate Mr.Champaneri for the petitioners further submitted that Notice dated 18.02.2022 is illegal since pursuant to resolution No.5 dated 19.12.1992, the petitioners cases were considered as hut occupiers by charging them

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annual rent of Rs.250/-. Accordingly, annual rent was paid by the respective hutments to the Municipality. Municipal taxes have also been paid. Once resolution is passed by the Municipality treating them as huts occupiers, the Notice alleging the petitioners as encroachers being bad in law, deserves to be quashed and set aside.

4.6 Learned advocate further submitted that exercising of powers under section 258 of the Municipalities Act by issuance of Notice dated 18.02.2022 is erroneous since the resolution has been passed and acted upon by accepting the payment of rent. The petitioners cannot be considered as encroachers and therefore, the Municipality ought not to have issued Notice dated 18.02.2022. Since the Notice was issued contrary to the earlier resolution, the same deserves to be quashed and set aside.

4.7 In the earlier round of litigation, prayer was also made with regard to regularization of hutments by payment of Jantri price therefore at the most, prayer (B) may be considered at this stage.

4.8 Learned advocate Mr.Champaneri for the petitioners submitted that subsequent to passing of the order by the Collector dated 13.06.1994, the Municipality continued

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collecting the payment of rent as also Municipal taxes, as decided under resolution No.5 dated 19.12.1992 and therefore, even if the order dated 13.06.1994 has not been challenged, it cannot be stated that the same has attained finality.

5. Opposing the present petition, learned advocate Mr.Kakkad for respondent No.3- Viramgam Municipality invited attention of this court to chronology of events. Learned advocate submitted that this is third round of litigation. Earlier for the very subject land, in the first round, Special Civil Application No.17289 of 2012 was filed Annexure "B" (Page-

31), wherein, this court in response to the challenge made to the Notice under section 185 of the Gujarat Municipalities Act, directed respondent No.3 to consider the reply and to give personal hearing to the petitioners. Accordingly, Notice was issued to the petitioners dated 15.06.2013. The said Notices were issued through Regd.A.D.. In the said Notice, opportunity of hearing was provided to the petitioners. Date and time of hearing was also mentioned in the said Notice dated 15.06.2013. The said Notices were served through Regd.A.D. as also personally. The petitioners despite Notice chose not to remain present.

5.1 Subsequently, respondent No.4 filed Special Civil Application No.2192 of 2015 seeking to direct Municipality or

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the State Authority to remove encroachment on his land. It was case of respondent No.4 that hutments have created encroachment on their land and therefore, authorities may be directed to remove such encroachment. This court under order dated 29.11.2021 in Special Civil Application No.2192 of 2015 along with direction to remove encroachment, further directed the Municipality to consider the cases of the petitioners for allotment of alternative plot upon payment of requisite market price.

5.2 Pursuant to the direction dated 29.11.2021 in Special Civil Application No.2192 of 2015, respondent-Municipality issued Notice dated 13.12.2021 (Annexure "G" Page-48). The said Notice refers to direction of Special Civil Application No.2192 of 2015. Despite that, the petitioners chose not to appear and show their willingness to make payment of market price as directed and therefore, Notice dated 18.02.2022 was issued. In response to the Notice, the petitioners filed their replies wherein, they have shown their inability to make payment of market price and have requested to consider their cases for regularizing them as occupants on subject land on making payment of jantri price. Thereafter, Notice dated 18.02.2022 was issued. Since action taken is in accordance with law and as per directions of this Court, there is no illegality and therefore, the present petition deserves to be

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rejected. Further, till date, the petitioners are not in position to make their cases good as they are not encroachers.

6. Learned advocate Mr.Mehul Sharma for respondent No.4 submitted that despite order dated 29.11.2021 in Special Civil Application No.2192 of 2015, the respondent - Municipality has not complied with the directions dated 29.11.2021. The respondent- Municipality has not removed the encroachment and therefore, they may be appropriately directed. Learned advocate further submitted that the petitioners are stated as encroachers in the order dated 29.11.2021 and therefore, this petition may be rejected by directing the Municipality to give peaceful and vacant possession of the subject land to respondent No.4.

7. Considered the submissions and documents on record. It is noticed that the grievance of the petitioners is in relation to issuance of Notice under section 185 of Gujarat Municipalities Act dated 18.02.2022. Under the said Notice, the petitioners were directed to remove the encroachment within a period of seven days, failing which, appropriate action has been indicated.

8. Admittedly, this is third round of litigation. Earlier for the very grievance of removing the petitioners from their

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premises, a petition was preferred wherein, this court under order dated 28.12.2012 in Special Civil Application No.17289 of 2012, directed the respondent Municipality to consider their cases along with documents by providing personal hearing. Accordingly, Notice was issued to the petitioners dated 15.06.2013 (Page-71). In the Notice, reference was made of this Court's order dated 28.12.2012 in Special Civil Application No.17289 of 2012. Time and place of hearing was also referred in the said Notice. No contrary evidence is placed on record to justify that opportunity of hearing was not given to the petitioners.

9. Thereafter, the petition was preferred by respondent No.4 seeking direction from respondent Municipality to remove encroachment on the subject land. It was case of the petitioners therein that the land in question on which hutments are having their premises belongs to them and peaceful and vacant possession is required to be provided to respondent No.4. In the said petition, the petitioners were parties to the said proceedings. This court in Special Civil Application No.2192 of 2015 had directed that if encroachers pay the requisite market price for allotment of plot, they would be allotted such plot on government land. They were also asked to respond to the said Notice within a period of seven days. One more opportunity was thus given to the petitioners to

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make payment of requisite market price for allotment of plot. Accordingly, Notice dated 13.12.2021 (Page 48) was issued. From the Notice, it is evident that it refers to the order in Special Civil Application No.2192 of 2015 and their consent if any to be given within a period of seven days. It appears that in response to the Notice dated 13.12.2021, the petitioners filed their reply, stating that since they are residing on the subject land since many years, their cases may be considered for continuing them as occupiers by payment of jantri price. Thus, without challenging the order in Special Civil Application No.2192 of 2015 they showed their non-willingness for payment of market price for allotment of alternative land.

10. Main contention of the petitioners is that since they are occupying the subject land and having their huts on the subject land since many years and since their cases have been considered for regularization of their huts as huts occupier by Viramgam Municipality in Resolution No.5 dated 19.12.1992, respondent No.3 - Viramgam Municipality ought not to have issued Notice. It appears that pursuant to resolution No.5 in the meeting dated 19.12.1992, the petitioners have paid annual rent as also, the property taxes. However, from the documents on record, it is noticed that the said resolution was cancelled by an order dated 13.06.1994 by the Collector. In the order dated 13.06.1994, the Collector has stated that construction

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was done illegally by encroachers on bank of Ganga Sagar Lake. Construction done being illegal, could not be regularised by passing the resolution on payment of collection of rent and taxes. The said order refers to breach of section 65(2) of the Gujarat Municipalities Act. Admittedly, this order was not challenged and has attended finality. Thus, once resolution No.5 dated 19.12.1992 has been cancelled by order of Collector, in the opinion of this Court, payment of collection of subsequent rent is of no consequences. Moreover, from the affidavit, it is also noticed that payment of rent as fixed under resolution No.5 dated 19.12.1992 was accepted by the Municipality. Assuming that even the rent has been paid subsequent to the order of the Collector dated 13.06.1994, payment of rent and taxes would not create any right over the subject land in favour of the petitioners.

11. Further, location of construction done by the petitioners is not in dispute. It is in periphery of Ganga Sagar Lake and as stated in the affidavit, the said Ganga Sagar Lake is required to be redeveloped under the Project Amrut 20. Pursuant to which, process has been initiated for floating the tender for redevelopment of Ganga Sagar Lake of Viramgam Municipality. The said document is annexed with reply at Page-91.

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12. In view of the foregoing reasons, there is no illegality in issuing the Notice dated 18.02.2002 Annexure "I". Therefore, the petition is devoid of any merits and the same is hereby dismissed. Rule is discharged.

13. After dictation is over, learned advocate Mr.Champaneri for the petitioners requested that in this case, Notice was issued however, no stay was granted. Therefore, status quo as on date shall be maintained for two weeks so that the petitioners can take appropriate decisions on the subject matter.

14. The said request is objected by learned advocate Mr.Kakkad and learned advocate Mr.Sharma with submission that in this case no stay was granted by this Court. Further, process has already been initiated for the purpose of development of Ganga Sagar Lake.

15. Considering the request made, since this Court is not inclined to entertain the present petition, status quo as on date shall be maintained for two weeks from the date of receipt of this order.

(MAUNA M. BHATT,J) DIPTI PATEL...