JAYANTILAL NATHALAL SHETH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India challenges the orders issued by the Revenue Depatrtment, Government of Gujarat and the Collector, Sabarkantha on 3/4/1998 and 11/5/1999 respectively whereby it is ordered to hand over possession of a portion of public road to certain persons by charging some amount for construction of pucca cabins on the said road. The aforesaid orders are challenged as being arbitrary, unreasonable, irrational and illegal in view of the fact that the proposed 89 cabins are to be constructed on a public road which does not have even a foothpath to walk and the land on which the road is situated has vested in the Modasa Nagar Palika as per the provisions of the Gujarat Municipalities Act, 1963. It is further stated in the petition that if the proposed construction of 89 cabins on the public road is permitted it would cause public nuisance and traffic problems, that the impugned orders have been issued without inviting objections from the general public and without following any procedure for disposal of public land i.e. by way of inviting offers from general public or putting to public auction, that the entire action is thus opposed to public policy and does not have public good and welfare as basis and goes against the public interest, that the orders are issued in colourable exercise of jurisdiction for the purpose of abuse or misuse of power and by such action public property, viz. the public road is being frittered away. It is further averred that there are under ground utilities such as drainage, water supply, telephone and electric supply cables which would be affected causing disruption of various public amenities. It is further stated that there is "Ancient Wav" which is about 500 years old and is a protected monument under Ancient Monuments and Archealogical sites and Remains Art, and accordingly no permanent construction is permissible upto distance of 100 mtrs. as per provisions of the said Act. It is, therefore, prayed that :-

(2.) The following undisputed facts emerged from the affidavit-in-reply filed on behalf of respondent No.3 i.e. Modasa Nagarpalika. That prior to 1963 Modasa was having Modasa Municipality and was governed by the Bombay Municipalities Act. Thereafter, it was converted into Nagar Panchayat. However, prior to the Nagarpalika coming into existence, erstwhile municipality permitted the persons belonging to Sindhi community to put-up kacha cabins for the purpose of their rehabilitation and re-employment as per the Government circulars issued under the policy of resettlement of displaced persons by the Government in the year 1958. That the municipality has been recovering rent from such persons regularly since then. That, somewhere in 1985 the cabin holders represented through their association seeking permission of the Nagarpalika for construction of pucca shops in place of kacha cabins and accordingly by resolution No.96 dated 26/8/1985, a resolution was passed by the Nagarpalika to invite objections for regularising the said kacha cabins which were situated in the gamtal on public road. In view of the fact that no objections were received by the Nagarpalika the General Body by resolution No.133 dated 1/11/1985 resolved to forward a proposal to the State Government for the aforesaid purpose and accordingly a proposal was sent to the Collector, Sabarkantha.

(3.) In the meantime it appears that on 8/10/1986, the Nagarpanchayat was converted into Nagarpalika and an Administrator was appointed and during the tenure when the Administrator was in charge, the aforesaid kacha cabins were removed. However, the Nehru Marg Cabin Owners Association approached this Court by way of Special Civil Application Nos. 4019/87, 4020/87, 4196/87 and 4197/87. It further appears that by way of an interim order Nagarpalika was permitted to restore the cabins. That, thereafter the writ petitions filed by the association came to be disposed of by this Court on 1/10/1987 whereby the Court passed the following order in view of the note filed by the respondent municipality before this Court. The said note as referred and the final order of this Court are reproduced hereunder for ready reference :