SCA/1982/2004 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1982 of 2004 With LETTERS PATENT APPEAL No. 596 of 2006 With LETTERS PATENT APPEAL No. 597 of 2006 With SPECIAL CIVIL APPLICATION No. 13938 of 2005 With CIVIL APPLICATION No. 4906 of 2006 In SPECIAL CIVIL APPLICATION No. 1982 of 2004 With CIVIL APPLICATION No. 4907 of 2006 In SPECIAL CIVIL APPLICATION No. 1982 of 2004 With CIVIL APPLICATION No. 8706 of 2004 With CIVIL APPLICATION No. 8701 of 2004 With CIVIL APPLICATION No. 6483 of 2005 In SPECIAL CIVIL APPLICATION No. 1982 of 2004 With CIVIL APPLICATION No. 7420 of 2005 In SPECIAL CIVIL APPLICATION No. 1982 of 2004 With CIVIL APPLICATION No. 7154 of 2005 In SPECIAL CIVIL APPLICATION No. 1982 of 2004 With CIVIL APPLICATION No. 5184 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE P.B.MAJMUDAR AND HONOURABLE MR.JUSTICE AKSHAY H.MEHTA SCA/1982/2004 2/58 JUDGMENT ========================================================= 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 ? ========================================================= SHARDA SAHKARI GRUH MANDALI LTD AND OTHERS Versus AHMEDABAD MUNICIPAL CORP. AND OTHERS ========================================================= Appearance : SPECIAL CIVIL APPLICATION No.1982/2004 MR HARIN P RAVAL for Petitioner(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 1, 3, NOTICE SERVED BY DS for Respondent(s) : 2, 24, 26, 28, MR MUKESH PATEL, ASST. GOVT. PLEADER for Respts : 4,6 - 9. MR PR NANAVATI for Respondent(s) : 5, MR PS CHAMPANERI for Respondent(s) : 10 - 11,13 - 16, 18, 20, MR RR VAKIL for Respondent(s) : 12, 15, 18, NOTICE SERVED for Respondent(s) : 14, MR YF MEHTA for Respondent(s) : 17, HL PATEL ADVOCATES for Respondent(s) : 19,21 - 23, 25, None for Respondent(s) : 27, MR BN DOCTOR for Respondent(s) : 29, NANAVATI & NANAVATI for Respondent(s) : 30, 32, 35, MR SHALIN N MEHTA for Respondent(s) : 31, MR AMIT M PANCHAL for Respondent(s) : 33,36 - 37. DS AFF.NOT FILED (N) for Respondent(s) : 34, MR PRAFUL N THAKKAR for Respondent(s) : 35, SCA/1982/2004 3/58 JUDGMENT LETTERS PATENT APPEAL No.596/2006 Mr.Y.N.Oza for Ms.Sonal R. Shah for the appellant. Mr.H.S.Munshaw for respondent No.3. Mr.Mukesh Patel, AGP for respondent No.6. Mr.P.R.Nanavati for respondent No.7. LETTERS PATENT APPEAL No.597/2006 Mr.Y.N.Oza for Mr.J.I.Umot for the appellant. Mr.H.S.Munshaw for respondent No.3. Mr.Mukesh Patel, AGP for respondent No.6. Mr.P.R.Nanavati for respondent No.7. SPECIAL CIVIL APPLICATION No.13938/2005 Mr.Zubin Bharda for the petitioner. Mr.Mukesh Patel, AGP for respondent No.1. Mr.P.R.Nanavati for respondent No.3. Mr.R.R.Vaki for respondent No.4. CIVIL APPLICATION No.4906/2006 Mr.Harin Raval for the applicants. Mr.Mukesh Patel, AGP for respondent No.4. CIVIL APPLICATION No.4907/2006 Mr.Harin Raval for the applicants. CIVIL APPLICATION No.8701/2004 Mr.D.P.Joshi for the applicant. Mr.P.R.Nanavati for respondent No.1. Mr.Harin Raval for respondent No.1. Mr.Mukesh Patel, AGP for respondent No.6. SCA/1982/2004 4/58 JUDGMENT CIVIL APPLICATION No.8706/2004 Party-in-person for the applicant. CIVIL APPLICATION No.6483/2005 Mr.Harin Raval for the applicants. Mr.H.S.Munshaw for respondent No.1. Mr.P.R.Nanavati for respondent No.5. Mr.P.S.Champaneri for respondent Nos.10,13. Mrs. Sasi V. Parikh for respondent No.11. Mr. R.R.Vakil for respondent Nos.12, 15, 18. Mr.Y.F.Mehta for respondent No.17. CIVIL APPLICATION No.7420/2005 Party – in – person for the applicant. Mr.P.S.Champaneri for respondent No.1. Mr.Y.F.Mehta for respondent No.2. Mr.P.R.Nanavati for respondent No.3. Mr.H.S.Munshaw for respondent No.4. Mr.Y.F.Mehta for HL Patel Advocates for respondent No.5. Mr.Mukesh Patel, AGP for respondent No.6. CIVIL APPLICATION No.7154/2005 Mr.Harin Raval for the applicant. Mr.Mukesh Patel, AGP for respondent No.4. Mr.P.R.Nanavati for respondent No.5. Mr.P.S.Champaneri for respondent No.11. CIVIL APPLICATION No.5184/2005 Mr.Amit Panchal for the applicant. Mr.H.S.Munshaw for respondent Nos. 1, 3. Mr Mukesh Patel, AGP for respondent No.4. SCA/1982/2004 5/58 JUDGMENT Mr.P.R.Nanavati for respondent No.5. Mr.P.S.Champaneri for respondent Nos.10-11, 13, 16, 20. Mr.R.R.Vakil for respondent Nos.12, 15, 18. Mr.Y.F.Mehta for respondent No.17. HL Patel Advocates for respondent Nos.19, 21-23. 25. Mr.B.N.Doctor for respondent No.29. Nanavati & Nanavati for respondent Nos.30, 32, 35. Mr.Shalin Mehta for respondent No.31. Mr.Amit Panchal for respondent No.33. ========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR and HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 28/6/2006 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) 1. All these matters have been heard together and now they are being disposed of by this common judgment, with the consent of the advocates. 2. During the course of hearing of Special Civil Application No. 1982 of 2004,various parties have been joined and notices have been issued, such as various Nagar Palika around the Municipal limits and various telephone companies. Notice was also issued to relevant Departments of the State Government, i.e. Urban Development Department, Revenue Department, Housing Department, Commissioner of Police, Ahmedabad and Collector, Ahmedabad. SCA/1982/2004 6/58 JUDGMENT Thus several parties have been joined in SCA No. 1982 of 2004, which was initially field only against Ahmedabad Municipal Corporation. 3. During the course of hearing, the learned Single Judge has passed orders from time to time in connection with solving the problem of stray cattle, maintaining and repairing roads within AMC and AUDA limit and for solving the traffic congestion problem caused on account of these factors. For the purpose of making adequate area available to accommodate the stray cattle, orders are also passed for removing encroachments made by cattle owners at Rebari Vasahat. For getting adequate gaucher land available, learned Single has also passed various orders for removing encroachment from gaucher land. 4. So far as Special Civil Application No. 1982 of 2004 is concerned, the same is filed by one Sharda Sahakari Gruh Mandali Limited [hereinafter referred to as the Society]. In the said Special Civil Application, the petitioner Society has prayed that respondent No.1, Ahmedabad Municipal Corporation may be directed to carry out its duties under the Bombay Provincial Municipal Corporations Act, 1949 [hereinafter referred to as the BPMC Act and/or Corporation Act] for repairing and asphalting of the roads of petitioner No.1 Society. The grievance of the said Society in the petition is that on account of heavy rains at the relevant time, the internal road of the Society was damaged, which required repairing and asphalting. It is averred in the petition that roads of petitioner No. 1 Society are to be considered within the meaning of section 52 (o) (a) of the BPMC Act. The learned Single Judge, while entertaining the said Special Civil SCA/1982/2004 7/58 JUDGMENT Application, took suo motu proceedings in connection with the condition of the roads in the area forming part of the Corporation as well as the area which is forming part of AUDA. The court also took suo motu proceedings in connection with stray cattle on the roads. During the hearing of the petition before the learned Single Judge it was submitted that since there is scarcity of gaucher land and since adequate grazing land is not available for cattle, owners of the cattle are allowing the cattle to move on the roads. It was also pointed out before the learned Single judge that after roads are repaired either by the Corporation or by AUDA, the same is dug by telephone Companies and Electricity Company causing much damage to the repaired roads and inconvenience to the general public. It was also brought to notice of the Court that many a times in order to put pipeline and cable, big holes are also made on the roads. In short, there is total lack of co-ordination between the road constructing authorities and other agencies. Th learned Single Judge also took suo motu proceedings in connection with non-providing of parking facilities by party-plot owners, multiplex theaters, big temples and shopping malls which result into traffic congestion on the roads. It was also brought to the notice of the learned Single Judge that cattle owners have encroached upon gaucher land and have put up unauthorized construction upon gaucher lands which has resulted into stray cattle problem on public streets. 5. On 3rd September 2004, the learned Single Judge passed the following order: “It is very unfortunate that though the order was passed as far back as in the year 1997 and directions were issued by this Court to see that the SCA/1982/2004 8/58 JUDGMENT cattle are removed from the roads. However, the directions and the interim relief passed by this Court is not complied with. 2. Everyday, the citizens are suffering because of the cattle on the roads and there are major accidents due to that. Still there is a casual approach on the part of the authorities for so many reasons. To give a last chance, the respondents, inclusive of the State Government, are directed to comply with the orders dated dated 30-09-1997, 14-10-1997 and also other various orders passed by this Court in SCA No.6963 of 1997. Respondents are directed to see that there are no cattle on the roads and, for that purpose, if the authorities approach the Police Department, the Police Commissioner, Ahmedabad is directed to give all assistance to the Municipal Corporation and AUDA. Respondents are also directed to take the appropriate steps within a period of 01 (one) week from today and submit a compliance report before this Court, failing which proceedings under Contempt of Court will be initiated against the erring officers for not complying with the interim order and directions issued by this Court. Respondents are also further directed to come with a concrete proposal and suggestions what steps they are proposing to resolve the dispute permanently on the next date of hearing. 3. S.O. to 15-09-2004 for submitting the compliance report. If the directions of this Court is not complied with, serious view will be taken against the erring officers. 4. In view of the fact that SCA No.6963 of 1997 was treated as suo motu and this order is passed today, the office is directed to place this matter before the Hon'ble the Chief Justice for orders, whether the matter is to be treated as part-heard before me or not.” The Department thereafter, by its note dated 14.09.04 placed the matter before the Honourable the Chief Justice and the Honourable the SCA/1982/2004 9/58 JUDGMENT Chief Justice, by order administrative order dated 14.09.04 directed the matter to be treated as part heard before the learned Single Judge [M.R. Shah, J.]. This matter, therefore, was again placed before the learned Single Judge. 6. On 15.09.2004, the learned Single Judge passed the following order: “1. Leave to add Secretary, Urban Development and Urban Housing Department, State of Gujarat, Secretary, Home Department, State of Gujarat and Police Commissioner, Ahmedabad City, as party respondents. 2. Notice to the newly added parties returnable on 30th September, 2004. 3. Mr.Dipen Desai, learned AGP is directed to accept the notice on behalf of newly added parties and directed to get necessary instructions from the concerned department, and is directed to see that some responsible officers from all the aforesaid three authorities be remain present on the next date of hearing. An affidavit-in-reply is filed on behalf of Ahmedabad Municipal Corporation pointing out what steps the Municipal Corporation has taken and what steps the Municipal Corporation is proposing to take for keeping the cattle outside the City of Ahmedabad, and the nuisance with regard to the cattle's on the road is minimised. 4. Mr.S.I.Nanavati, learned Senior Advocate appearing on behalf of the Municipal Corporation and Commissioner, Ahmedabad Municipal Corporation, has stated that necessary circular will be issued and a wide publicity will be given in the Newspaper. 5. S.O. to 30th September, 2004, for further order and for submitting compliance report by Ahmedabad Municipal Corporation. SCA/1982/2004 10/58 JUDGMENT 6. So far as AUDA is concerned, it appears that, inspite of the order passed by this Court on 3.9.2004, the situation within the local limits of AUDA is not improved at all, and there is a total casual approach on the part of the Officers of the AUDA, and approach of AUDA is to ignore the order passed by this Court on 3.9.2004. There is no compliance report submitted by AUDA nor any steps are taken by the AUDA to improve the situation and to see that there are no cattle's on the road and there is no nuisance. 7. Under the circumstances, the Chief Executive Authority, AUDA, is directed to remain present on 30th September, 2004, and is directed to show-cause as to why the contempt proceedings should not be initiated against the erring officers and the AUDA. D.S. for newly added parties is permitted. ( M.R. Shah, J. ) 8. After the aforesaid order was passed, Mr.P.R. Nanavati, who appears on behalf of the AUDA, has requested that, instead of passing order directing the CEA, AUDA, to remain present, he will see to it that some responsible officers will remain present on the next returnable date, and in the meantime, some concrete steps will be taken with a view to see that nuisance of cattle on the road can be minimized and he will submit the compliance report on the next returnable date i.e. on 30-09-2004. 9. Considering the aforesaid facts and circumstances of the case, and assurance given by Mr.Nanavati, presence of CEA, AUDA is dispensed with on the next returnable date only.” 7. On 13.10.2004, the learned Single Judge passed the following order: “Leave to join the Collector, Ahmedabad as well as the Secretary, Revenue Department as party respondents. Notice to the newly added parties SCA/1982/2004 11/58 JUDGMENT returnable on 27.10.2004. Shri Dipen Desai, Ld. AGP waives service of notice on behalf of the Collector, Ahmedabad the Secretary, Revenue Department. 2. Today, when the matter is called out, it is reported by Shri Munshaw, Learned Advocate appearing for the Ahmedabad Municipal Corporation that when the officers had gone to impound the cattle in Vejalpur area, the officers were attacked and some officers are also injured. If this is continued then it is likely to demoralize the officers. Under the circumstances, at the request of the authorities concerned i.e. Ahmedabad Municipal Corporation, AUDA and/or other authorities, the Police Commissioner, Ahmedabad is directed to give additional forces so that the incident which has taken place in Vejalpur area may not be repeated while the officers are performing their official duties which they are performing in addition to their official duties pursuant to the orders passed by this Court. 3. The Collector, Ahmedabad and the Secretary, Revenue Department, State of Gujarat are directed to produce on record the particulars with regard to Gauchar land available at present and which were available earlier. Shri Harin Raval, Learned Advocate appearing for the petitioner who is also appearing as Amicus Curiae has submitted that pursuant to the order passed by this Court, in fact, the authorities did form a Cell comprising of Deputy Commissioner of Police (Traffic), Deputy Municipal Commissioner, Ahmedabad Municipal Corporation, AUDA Chief Executive Officer, Deputy Director, Director of Municipalities, Gujarat and the Deputy District Development Officer, Ahmedabad to examine the laws and rules regarding stray cattle and to make suggestions for controlling the menace. The said Committee is also directed to produce on record the action taken and/or place on record the suggestions for controlling the menace. S.O. to 27.10.2004 for compliance report. SCA/1982/2004 12/58 JUDGMENT 8. On 13.1.2005 , the learned Single Judge passed the following order: “Pursuant to the order passed by this Court, an affidavit-in-reply is filed by Shri M.D. Modhiya, Addl. Resident Deputy Collector, Ahmedabad, on behalf of the Collector, Ahmedabad. It is stated in the said affidavit-in-reply that as per their record there is encroachment on the 'gauchar' land to the extent of 115,42,825 sq.mtrs. by some persons who have encroached upon the land illegally. Along with the affidavit-in-reply Annexure-A particulars are given with regard to 77 villages. It appears from the particulars which are given in the said affidavit-in-reply that particulars are not given with regard to survey number of the 'gauchar' land. Accordingly, the State Government is directed to give particulars with regard to survey number of the 'gauchar' land of 77 villages. It is also submitted in the affidavit-in-reply that Ahmedabad District Panchayat is directed to take appropriate action under the provisions of the Gujarat Panchayats Act, 1993 for removing encroachment in question so that the 'gauchar' land can be released and such communication is dated 25th November, 2004. It is further submitted in the said affidavit-in-reply that various resolutions/circulars are issued by the State Government to see that the 'gauchar' land in the State of Gujarat is protected and there is no encroachment on the 'gauchar' land and latest circular is dated 26th February, 2004. It is submitted by the learned advocate for the petitioner before me that one another circular was issued by the Panchayat, Rural Housing and Rural Development Department, State of Gujarat dated 30th July, 2003. Mr. A.D. Oza, learned Government Pleader submitted that time and again apart from issuing the aforesaid circulars/resolutions, instructions are issued to the various authorities to see that there is no encroachment on the 'gauchar' land but there is no SCA/1982/2004 13/58 JUDGMENT fruitful result so far. It is submitted that even in the Government Circular dated 26th February, 2004 it is stated that inspite of the instructions issued by the State Government time and again, encroachment is not removed and if actions are not taken, then appropriate disciplinary action will be taken against the erring officer. It is further stated in the Government Circular dated 26th February, 2004 that all the Concerned District Development Officers/District Collectors are directed to submit report on or before 10th of every month with regard to compliance report for the purpose of removing the encroachment from the 'gauchar' land. From the aforesaid Government resolutions/circulars it prima facie appears that the Government is very serious with regard to removal of encroachment on the 'gauchar' land and for the 'gauchar' land for the cattle, but there is lack of coordination and there is no implementation of the aforesaid circulars/resolutions. The State Government is a supervisory authority so far as the various authorities, such as District Collectors/District Development Officers are concerned. Under the circumstances, the Secretary, Revenue Department, State of Gujarat and Secretary of Panchayat, Rural Housing and Rural Development, State of Gujarat are directed to see that their circular dated 26th February, 2004 and 30th July, 2003 are strictly complied with and encroachment from the 'gauchar' land is removed as early as possible. If, ultimately, it is found that the certain authorities and their officers are not complying with their own instructions then as per the circular dated 26th February, 2004, the State Government is directed to strictly implement the same and to take disciplinary action also. It would be open for the concerned Secretary to send the copy of this order to the concerned District Development Officers/District Collector and in turn the District Development Officers/District Collectors may inform about the circular to all the concerned Talati-cum-Mantri. The office is directed to supply SCA/1982/2004 14/58 JUDGMENT certified copy of this order to the Government Pleader on or before 19th January, 2005. It is pointed out by Mr. A.D. Oza from the aforesaid affidavit-in-reply that the Ahmedabad Urban Development Authority (AUDA) has asked for the land which part and parcel of the 'gauchar' land situated at Bakrol, Taluka Daskroi District Ahmedabad for the purpose of constructing 'panjara pole" and the concerned Collector will forward new proposal to the State Government on or before 18th January, 2005 and on receipt of the same the State Government is directed to pass appropriate order as early as possible preferably within a period of six weeks from today. S.O. to 16-2-2005 for compliance of the report.” 9. On 4.08.2005 , the learned Single Judge passed the following order: 1. Shri Vijay H. Patel, learned advocate appears on behalf of Makarba, Vastrapur, Bodakdev, Thaltej, Sola, Gota and Nirnaynagar Nagarpalikas / Gram Panchayat and Shri P. S.Champaneri and Shri Y.F.Mehta, learned advocates appear on behalf of Jodhpur and Vejalpur Nagarpalika respectively. The learned advocates appearing on behalf of the aforesaid Nagarpalikas and Gram Panchayats have assured that the orders passed by this Court dated 29.6.2005, 14.7.2005 and 1.8.2005 are being implemented in its true spirit and the same will be implemented and further more steps will be taken to impound the stray cattle which are found on the roads within the limits of their Gram Panchayat / Nagarpalika. Shri Vijay Patel, learned advocate has also stated that even today itself, in all 79 stray cattle's found on the road and local limit of aforesaid Nagarpalikas and / or Gram Panchayat are impugned and at present also further steps are in action and the staff for the purpose on the job. However, Shri Patel, Shri P.S.Champaneri and Shri Y.F.Mehta request for some more time to fully implement the order passed by this Court. However, Shri Patel has requested that there are some difficulties with regard to infrastructure and some SCA/1982/2004 15/58 JUDGMENT assistance is needed from AUDA. The Administrative Officer of the AUDA is directed to see that full cooperation is given to the concerned Nagarpalika / Gram Panchayat inclusive of shortage of infrastructure, if any. Considering the submissions of Shri V.H.Patel, Shri P.S.Champaneri, and Shri Y.F.Mehta, learned advocates on behalf of the aforesaid Nagapalikas / Gram Panchayat, with a view to give one more chance and opportunity, the matter is adjourned to 11th August, 2005 to submit further compliance report. 2. Shri H.S.Munshaw, learned advocate appearing on behalf of Ahmedabad Municipal Corporation has also requested for time to file Affidavit-in-reply by placing on record the details of the land which was already allotted earlier by the Corporation for rehabilitation of Maldhari community and their cattle's etc in different areas and subsequent resolutions passed by the Standing Committee. He shall file the same on or before 11th August, 2005. 3. Shri A.D.Oza, learned Government Pleader with Mr.H.D.Dave, learned AGP who is also one of the Committee Members and other Committee Members have suggested that they have also received suggestions and objections from the other persons inclusive of Maldhari and Gopalak community etc and they are considering the same and the next meeting of the Committee is scheduled on 10th August, 2005 to discuss the short terms measures and long term measures. He has submitted that one of the suggestions was with regard to registration of the cattle, more particularly, cows and buffalos etc. and if there is registration then it will be easier for the concerned authority to launch prosecution and identify the owners. 4. In above view of the matter, Ahmadabad Municipal Corporation and Ahmedabad Urban Development Authority are directed to consider the aforesaid suggestion and give advertisements in the local newspaper having wide publication informing the SCA/1982/2004 16/58 JUDGMENT owners of the cattle to get their cattle registered and to inform those persons / owners of the cattle the consequences of non registration of their cattle and give some time limit with regard to registration. 5. So far as the condition of roads are concerned, Shri P.R.Nanavati, learned advocate appearing on behalf of the AUDA has submitted that authority which are responsible for the bad conditions of the roads, are those companies which are required to dig the roads for laying down their wires and / or cables etc. He has submitted that after digging and laying the cables those agencies / companies are not doing any further resurfacing etc. He has also submitted that B.S.N.L., Reliance Infocom Ltd.,Airtel (Bharati) – Bharati Cellular Ltd, Tala Tele Service Ltd. IDEA Cellular Ltd. Ahmedabad Cable Operator Association, and Torrent – AEC Ltd. ( list and address are given separately ). To know their views and to meet with the situation, the aforesaid companies seem to be necessary parties in the present proceedings. 6. Under the circumstances, the aforesaid companies are ordered to be joined as the parties respondents. 7. Notice to the newly added aforesaid companies – newly added respondents returnable