SCA/10951/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10951 of 2006 With SPECIAL CIVIL APPLICATION No. 10952 of 2006 To SPECIAL CIVIL APPLICATION No. 10966 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= INTAJAMUDDIN YASINBHAI ANSARI AND OTHERS Versus STATE OF GUJARAT AND OTHERS ========================================= Appearance : MR RR MARSHALL, SR. ADVOCATE for MR SOLI UNWALA for the Petitioners MS BHAVIKA KOTECHA, AGP for Respondent Nos.1, 3 and 4 None for Respondent No.2 ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 12/11/2008 SCA/10951/2006 2/10 JUDGMENT COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. This petition was filed on 17.05.2006. The Court (Coram: Bankim N.Mehta, J.) issued 'Notice' returnable on 13.06.2006 and granted interim relief of maintaining 'status quo with regard to the disputed land, whereon the petitioners have constructed superstructure. On the next date, the matter was placed before the Division Bench consisting of the Hon'ble the Chief Justice and D.A.Mehta, J. The matter was thereafter adjourned from time to time. The interim relief granted on 17.05.2006 was continued. On 26.07.2006, the Division Bench consisting of the Hon'ble the Chief Justice and D.A.Mehta, J. passed the following order:- “Reply has been filed in this group of petitions. Learned counsel for the petitioners prays time to file rejoinder. Rejoinder be filed on or before 15th August, 2006. List for final disposal on 18.8.2006.” The matter was thereafter listed on board on 28.09.2006. The Court passed the following order:- “Though directed to file rejoinder by 15th August, 2006, the same has not been filed. Counsel prays for time. Put up on 13th October, 2006.” Today, the matter is listed on final bearing board. 2. RULE. Ms.Bhavika Kotecha, learned Assistant Government SCA/10951/2006 3/10 JUDGMENT Pleader, waives service of Rule on behalf of respondent Nos.1, 3 and 4. 3. With the consent of the learned advocates for the parties, the matter is taken up for final disposal. 4. The petitioners of these petitions are the residents of locality situated on Kadodara Road, Behind Court, Nr.Rang Upvan, Tal.: Bardoli, Dist.: Surat. It is the case of the petitioners that all the petitioners are from the lower economical strata of the society and earn their livelihood by doing daily wage labour work; that they are in occupation of the premises for last about 25 to 30 years; that the petitioners cannot be termed as the illegal occupants of the premises or the encroachers in the premises as respondent No.2 – Bardoli Nagar Palika has been receiving tax, i.e. property tax from the petitioners for the premises; that the petitioners are regularly paying the tax as well as rent to Bardoli Nagar Palika for the last many years. In support of the aforesaid submission, the petitioners have produced some of the receipts of some of the petitioners. The petitioners have also produced electricity bill as well as tax receipt of petitioner No.1 – Intajamuddin Ansari, which is at Annexure-A, colly. 5. Learned Senior Advocate Mr.Marshall for the petitioners submitted that the problem of the petitioners is a social problem and is required to be solved not by applying the law stricto senso. The learned senior advocate relied upon two orders passed by the SCA/10951/2006 4/10 JUDGMENT Hon'ble the Chief Justice and Hon'ble Mr.Justice H.K.Rathod. One of them being in Special Civil Application No.23156 of 2005 dated 30.11.2005. For ready perusal, the order is reproduced in toto:- “Rule. Submission is that 175 hutments are being demolished by respondents although hutment dwellers are in occupation of site/ hutments for the past 25 years. Respondents have not provided any alternative accommodation/ space to the hutment dwellers, therefore, action is arbitrary and violative of Article 21 of the Constitution of India. In aforesaid circumstances, respondents are directed to stop demolition of hutments and eviction of hutment dwellers from City Survey No.347/A, Ward No.4, Ronak Bazaar (Bakramandi), Ranip, within the limits of Ranip Nagarpalika, of Ahmedabad Urban Development Authority (AUDA), and in case all or any of the hutment dwellers have been removed and their dwellings demolished, status-quo ante is restored allowing them to remain over the land / in their hutment(s) till further orders. In case this area is needed for public purpose, both parties may come up with alternative sites where these hutment dwellers can be accommodated. Direct Service today permitted. Besides, this order be communicated by the Registry to respondents immediately through Fax message at the cost of petitioner.” Another order is in Special Civil Application No.19563 of 2005 dated 27.09.2005, which reads as under:- SCA/10951/2006 5/10 JUDGMENT “Rule. Link with Special Civil Application No.17745 of 2005. Petitioner submits that hutment dwellers have their hutments over the land since more than 20 years. They are poor persons doing manual work, cannot approach this Court on account of financial constraints, and have no knowledge of their rights. Therefore, their dispossession from the land without providing alternative land/space is arbitrary and unjustified. Subject to hearing the other side, eviction/dispossession of the hutment dwellers on land bearing City Survey No.2582 near Surat -Dhulia State High way No.66 in Vyara town of Surat district from their hutments/shops, is stayed till further orders. In case this land is required for public purpose, respondents may come with alternative land which can be provided to these hutment dwellers. Similarly, petitioner may also find alternative land where they can put up their hutments. Direct service is permitted. Copy of this order be also handed over to Ms. Mita S. Panchal, learned Asst. Government Pleader, by the Registry today for compliance. 6. The learned senior advocate for the petitioners submitted that it is not the case of the respondent authorities that the land occupied by the petitioners is required for any public purpose. He submitted that a similar order as is passed by this Court earlier in above referred two matters is required to be passed so as to take care of this social problem. 7. Learned Assistant Government Pleader Ms.Kotecha invited attention of the Court to the affidavit in reply filed by one Shri Chandrakant S/o Chandulal Gandhi, In-charge City Survey SCA/10951/2006 6/10 JUDGMENT Superintendent, Bardoli, affirmed on 13.06.2006. She invited attention of the Court to contents of sub-para C) of para-3 in specific which reads as under:- “3. C) It is further stated and submitted that all the petitioners are occupying the government land, which is admittedly Talavadi, which is also a government land. According to the judgment of the Hon'ble High Court in the matter of Special Civil Application No.10621/2000 and other allied matters, Government is bound to keep all lack lands free from encroachments and therefore, also granting of any relief in favour of the petitioners would run counter to the spirit of the said judgment and therefore, also no interim is granted to the petitioners in the present petition.” The learned Assistant Government Pleader also invited attention of the Court to another affidavit filed by one Shri Ashokkumar C.Gameti, City Survey Superintendent-3, Surat at Bardoli. The learned Assistant Government Pleader invited attention of the Court to the averments made in para-3 which reads as under:- “3. The land was an open piece of land having very low surface/pits. Because of the low surface, the rainy water used to accumulate. Hence the land was known as “Talavadi”. On the said land the petitioners have made encroachment before 5 to 10 years as alleged by them in the statement given by them before the City Survey Superintendent.” SCA/10951/2006 7/10 JUDGMENT The learned Assistant Government Pleader also invited attention of the Court to the averments made in para-4, 5 and 6, which read as under:- “4. On 22-03-2006 the city survey superintendent have issued notices under section 61 to the present petitioners as they had encroached upon the land of Government unauthorisedly. On 31.03.2006 all the petitioners remained present before the City Survey Superintendent and had showed their willingness to remove the encroachment voluntarily within 10 days. They had admitted in the said reply that their possession is unauthorized. In the said statement all the petitioners had contended that their possession on the said land is since last 5 to 10 years. In support of the same they could not produce any evidence before the City Survey Superintendent. The translated copy of the reply given by one of the petitioners is already produced alongwith the affidavit in reply. It is humbly submitted that such reply was given by all the petitioners. The deponent begs to produce the same is and when found necessary. 5. On 31-03-2006 order under section 61 was passed by the City Survey Superintendent wherein it has been observed that the concerned persons have failed to produce any evidence and hence ordered to remove the encroachment within 10 days. That one of such order passed under Section 61 is already placed on record which is page No.43. It is humbly said and submitted that the orders passed under section 61 are not challenged by any of the petitioners till to date. SCA/10951/2006 8/10 JUDGMENT 6. On 05-05-2006 though the petitioners had earlier agreed to remove their encroachment voluntarily within 10 days, they did not remove it and hence the authority has to issue notices under section 202 wherein the petitioners were asked to remove the encroachment on or before 08-05-2006 failing which the authority had observed that it will be removed by the Government. That before the said encroachment could be removed, the petitioner approached this Hon'ble Court by way of present petition and hence encroachment has not been removed by the present deponent till to date.” 8. The learned Assistant Government Pleader submitted that it is not in dispute that the petitioners do not have any right to continue on the land in question. She also submitted that as stated in para-2 of the affidavit, land bearing survey No.480A was acquired by the State of Gujarat and since then the possession of the said land was with the Roads and Buildings Department. She submitted that from the total land of survey No.480A, 180 sq. yds. of land was transferred to the Revenue Department and was further transferred to the Legal Department for construction of Court Building. She submitted that all these facts are recorded in mutation entry Nos.3087 and 3088, a copy of which is produced at Annexure-RR-I colly. She submitted that it is clear that the land is required for a public purpose and therefore, no relief is required to be granted to the petitioners. She submitted that in view of two important aspects, one that granting of any relief to the petitioners will run counter to the order passed by this Court in Special Civil SCA/10951/2006 9/10 JUDGMENT Application No.10621/2000, whereby the Government is directed to keep of lack lands free from encroachments and second that the land in question is required for a public purpose, the petitions are required to be dismissed. 9. The Court cannot be oblivious of the fact that the petitioners are on the land for long. Assuming for the sake of argument that they are not on the land for last about 25 to 30 years, but it is not in dispute that they are on the land for last atleast about 10 years. So far as nature and gravity of the problem is concerned, the length is not important. What is important is that this is a social problem which requires to be solved by the Government by taking a constructive approach and the said approach should have a humanitarian touch. That being so, this Court finds no reason not to pass a similar order as is passed by this Court in earlier two petitions. 10. The petitions are allowed. The authorities are directed not to remove the petitioners from the land without providing them alternative accommodation. Being conscious of the fact that there is an order passed by this Court in Special Civil Application No.10621/2000, whereby the Government is directed to keep all lake lands free from encroachments, it is directed that the authorities, if at all, identify this land as a, 'Talavadi” land on the basis of the old record of the land in question, they should expedite the exercise of identifying a SCA/10951/2006 10/10 JUDGMENT suitable alternative land and should offer the same to the petitioners before dis-placing them from their present place. In the alternative, if the land is not identified as a, “Talavadi” land and the same is required for any public purpose, the authorities may identify a suitable alternative land and offer the same to the petitioners before dis-placing them. 11. Rule is made absolute. No costs. (Ravi R.Tripathi, J.) (Rajesh H.Shukla, J.) *Shitole