BANKABHAI LAKHANBHAI BHAIYAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this Letters Patent Appeal, order dtd. 12/7/2018 passed in Special Civil Application No.8803 of 2016 has been challenged.

(2.) We have heard arguments of Mr. Vikram J. Thakor, learned advocate appearing for the appellants, Mr. K.M. Antani, learned AGP appearing for respondent Nos.1 to 3, Mr.Harshadray A. Dave, learned appearing for respondent No.4, Mr. H.S. Munshaw, learned advocate appearing for respondent No.5 and Mr. Maulik Nanavati, learned advocate appearing for respondent No.6. Perused the case papers.

(3.) The appellants who were the writ applicants before the learned Single Judge had challenged before the learned Single Judge the order dtd. 11/4/2016 passed by the Mamlatdar - Executive Magistrate - respondent No.2 who had directed the petitioners to remove the cabins situated in the land bearing Block / Survey No.90/1 paiki 1 and also the notice dtd. 23/5/2016 issued by the National Highway Authority, Sub- Division No.3 - respondent No.3 directing the removal of the cabins pursuant to the order passed by the Mamlatdar. It was the specific case of the writ applicants that they are residents of Village: Khambhaliya and had put up cabins on the road next to Pancholi Dharmshala since last 25 to 30 years and have been carrying on petty businesses therein. It was the further case of the writ applicants that they had put up the shops / cabins after obtaining permission from Gram Panchayat, Khambhaliya which had passed the resolution in the year 2005 and at the instigation of respondent No.4 who complained to the District Development Officer who wanted to covert his land from agriculture to non- agriculture purpose and had obtained the same by order dtd. 3/7/2010 passed by the District Development Officer and with a view to get more space and frontage to his construction on the land, had filed an application to the Mamlatdar for removing the cabins of the petitioners and at the behest of of respondent No.4, the impugned notice came to be issued to the petitioners to remove the cabins. It was contended before the learned Single Judge that Mamlatdar could not have issued notice at the instance of the private person viz. respondent No.4 and the Mamlatdar had no authority to pass the impugned order. The learned Single Judge (as Her Ladyship then was) by the impugned order had observed thus: