PARASRAM MANJIMAL Vs. KALOL MUNICIPALITY KALOL

JUDGEMENT

(1.) These two petitions under Articles 226 and 227 of the Constitution of India are directed against the notices issued by the respondent Municipality to the respective petitioners to open and remove the unauthorised construction of cabins and structures on the plots of a public street in the town of Kalol. The short facts leading to these petitions are as under:-

(2.) In Special Civil Application No. 498 of 1970 there is a piece of land near Vishnu Talkies in Kalol town. The said piece of land is a part of the public street and as such vested in the respondent Municipality. The petitioners were in possession of the said piece of land as lessees. They were said to be in possession since more than 15 years and are running the business in the cabins which they had put up on the said land since inception of the tenancy. The petitioners are monthly tenants and paying rent of the premises to the respondent Municipality. It appears that various pieces of public street lands were leased out to the petitioner and other persons for a limited and a specified period of one year or more at a time with the permission of the State Government under see. 65(2) of the Gujarat Municipalities Act. The petitioners have erected wooden cabins on these lands. It also appears that the last lease made in favour of the petitioners in respect of the different pieces of land was for two years namely 1967 and 1968-69 and the period of leases had expired on March 31 1969 A resolution was passed by the General Board of the respondent Municipality being resolution No. 13 dated April 25 1968 granting the aforesaid leases which in term were sanctioned by the State Government by its order of July 26 1968 The petitioners have paid the rent in respect of the pieces of land leased out to them upto March 31 1969 It appears that on 30th December 1968 the respondent-Municipality passed a resolution being Resolution No. 235 deciding to take possession of the land in question from the petitioners. The respondent Municipality thereafter served the petitioners with notices on 16-12-1969 that they were in unlawful possession of the pieces of land in question from April 1 1969 and their occupations of land beyond March 31 1969 was an unlawful encroachment. It was also intimated to the petitioners in the said notices that the pieces of land were required by the Municipality for its own use and that it could not be let out to the petitioners any further. It appears that the petitioners moved the Gujarat High Court by their Special Civil Application No. 1646 of 1969 for appropriate writs orders and directions to quash and set aside the said notices. As the respondent Municipality in the said application had declared before the Court its intention to withdraw the impugned notices reserving the right to issue fresh notices after giving an opportunity to the petitioner to show cause why an action should not be taken under sec. 185(2) or any other relevant provisions of the Act the petitioners had withdrawn in about February 1970 the said Special Civil Application. It appears that thereafter on 23rd February 1970 the petitioners were served with notices calling upon them to show cause why the illegal encroachment made by the petitioners by constructing cabins on the part of the public street should not be removed within 4 days of the service of the notice and if they did not show cause by 2nd March 1970 the respondent Municipality would take necessary action in the matter. The petitioners filed their reply to the aforesaid notices. It appears that thereafter the respondent Municipality had issued a notice again on April 7 1970 to all the petitioners calling upon them to vacate the lands by removing cabins Oh or before 16th April 1970 and in case of default the respondent Municipality threatened to take necessary action to remove the said cabins forcibly. The petitioners therefore approached this Court under Articles 226 and 227 of the Constitution of India for appropriate writs orders and directions to quash and set aside the notices as they were without jurisdiction and authority on the various grounds stated in the memo of petition contending inter alia that sec. 185 of the Gujarat Municipalities Act 1963 under which the impugned notices were issued was ultra vires as offending Article 14 of the Constitution.

(3.) In Special Civil Application No. 527 of 1970 the petitioner was given a piece of land near Khuni Bungalow in town of Kalol and the last lease in respect of the said piece of land was for two years namely for the years 1965-66 and 1966-67. The petitioner has erected a wooden cabin over the said piece of land and has paid rent upto March 31 1967 to the respondent Municipality. It appears that on August 9/12 1968 the respondent Municipality gave a notice to the petitioner that he was in unlawful possession of the piece of land in question on and from March 31 1967 and he was asked to show cause why he should not hand over the possession of the said piece of land to the respondent Municipality. As the explanation submitted by the petitioner by his letter of September 12 1968 did not satisfy the Municipality it called upon the petitioner by its letter of November 5 1968 to hand over the vacant possession of the piece of land within one month of the receipt of the notice. The petitioner therefore moved the High Court by his Special Civil Application being Special Civil Application No. 1435 of 1968 challenging that the said notice was without authority and jurisdiction as sec. 233 of the Gujarat Municipalities Act under which the said notice was issued was ultra vires and ineffective as it offended Article 14 of the Constitution of India. In the said petition the High Court of Gujarat by its order of November 15 1969 issued necessary writs quashing the aforesaid notice and also declaring sec 233 of the Gujarat Municipalities Act as ultra vires. It appears further that the respondent Municipality served another notice on the petitioner on March 11 1970 calling upon him to show cause why the alleged encroachment should not be removed under sec. 185 of the Act. The petitioner filed his reply to the said notice by his letter of March 19 1970 contending inter alia that the piece of land in question was not a part of the public street and the petitioner could not have a recourse to the coercive machinery under the Municipal Act but must have a recourse to a proper legal action in Court of law and also on the ground of sec. 185 being ultra vires as being violative of Article 14 of the Constitution of India. It appears that the explanation did not satisfy the respondent Municipality which called upon the petitioner by its notice of 10th/13th April 1970 that if the petitioner did not voluntarily remove himself the cabin from the land and hand over the quiet possession to the Municipality latest by April 21 1970 the Municipality would be compelled to remove the said encroachment forcibly. The petitioner being aggrieved with the said notice has approached this Court for appropriate writs orders and directions to quash and set aside the said notice.