DHIRAJLAL HARJIVAN VAYADA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Dhirajlal Harjivan Vayada has filed the present petition challenging the order passed by the respondent No. 1 in Revision Application No. 31 of 1996 on 21st June, 1997. The present petitioner is the neighour of respondent No. 4 Kanuben Ratansinh Shah and both the petitioner and respondent No. 4 are residing within Municipal area of Bhuj Nagarpalika. The respondent No. 4 is having her old house in her property and she had sought permission of the Nagarpalika to pull down the old building and raise a new construction as per plans and estimates submitted by her. The said plans were approved by the Municipality and necessary permission to raise construction was granted by the Nagarpalika. Thereafter, respondent No. 4 started raising construction in the same and it seems that the present petitioner felt that by the said construction, there is an encroachment on his easementary right by the respondent No. 4. He, therefore, raised obstruction to the respondent No. 4 in completing the said construction. The respondent No. 4 then filed Regular Civil Suit No. 422 of 1995 in the Court of the learned Civil Judge (J.D.), Bhuj and that proceeding is pending between the parties in the Civil Court. But in spite of the said proceedings before Civil Court, the present petitioner approached the Collector of Bhuj by giving an application purporting to be an application under S.258 of the Gujarat Municipalities Act, 1963. In the said application, the present petitioner has joined Bhuj Nagarpalika as opponent No. 1 and respondent No. 4 Kanuben as opponent No. 2. The Collector was pleased to issue notice to both the opponents. The opponents opposed the claim of the present petitioner by contending that there was no reason to take action under S.258 and the construction carried out by the opponent No. 4 was according to law. Bhuj Municipality has contended that there was some deviation by respondent No. 4 in making the use of the permission granted by the Bhuj Nagarpalika and they have carried out certain construction beyond plans and estimates as supplied by the respondent No. 4. Therefore, the Nagarpalika had issued notice to remove the said additional construction and had also taken steps of prosecuting the respondent No. 4 for breach of Municipal permission. After hearing both the sides, the Collector passed an order under S.258 of the Act on 8th August, 1996 which runs as under :

(2.) Being aggrieved by the said decision, the petitioner has come before this Court. It is vehemently contended by the learned Advocate Mr. Mehta for the petitioner that the respondent No. 1 was not at all justified in interfering with the order passed by the Collector of Bhuj. I have quoted the above order passed by the Collector of Bhuj. If the said order of the Collector is considered then it would be quite clear that the Collector has not come to a positive conclusion that there is a breach of permission granted by the Municipality in favour of the respondent No. 4. The order of the Collector is totally vague. The learned Advocate for the petitioner pointed out that from the order of the Collector to show that the Collector has come to the conclusion that there is a breach of a particular rule in granting the said permission by Bhuj Nagarpalika. The Collector has nowhere observed in his order that the permission granted by the Nagarpalika is likely to cause injury or annoyance to the public at large. If the provisions of S.258 of Gujarat Municipalities Act, 1963 is seen, then it would be quite clear that the Collector is empowered to interefere with the order or resolution of the Nagarpalika only in case it is likely to cause annoyance to the public or leads to a breach of peace or is unlawful. If the order of the Collector is seen, then, it would be quite clear that the Collector has not recorded any finding to mention that the permission granted by Bhuj Nagarpalika was unlawful or it was likely to cause injury or annoyance to public or lead to breach of peace. If the provisions of S.258 of Gujarat Municipalities Act are considered, then it would be quite clear that the Collector is empowered to interfere with the order or resolution of Nagarpalika only in case if he happens to come to any of these four conclusions. Unless he records a finding to that effect, he has no jurisdiction to exercise powers under S.258 of the Gujarat Municipalities Act.

(3.) It seems that the main grievance of the present petitioner is regarding encroachment on his easementary right to light and air on account of construction carried out by the respondent No. 4. But to get redressal of the said grievance, proper forum is to approach the Civil Court and not to have recourse of S.258 of the Act. As a matter of fact, the parties have approached the Civil Court by filing a Regular Civil Suit. Only on that count alone, the Collector ought not to have entertained the original complaint of the present petitioner.