MOHMMAD ARIF ASHFAKUREHMAN Vs. KAPADWANJ NAGARPALIKA KAPADWANJ

JUDGEMENT

(1.) The petitioner, by this special civil application, is praying for issuance of writ of Mandamus or any other appropriate, writ, direction or order, in the nature of certiorari declaring the action taken on 11th March 1999 at 3:30. p.m. demolishing the Kutcha hut of the petitioner by the respondent -Nagar Palika as arbitrary, unjust, illegal, void and in breach of principles of natural justice. Second prayer has been made that during the pendency and final disposal of this special civil application, this Court may be pleased to issue an order of injunction restraining the respondent Nagar Palika from demolishing the Pan shop of the petitioner situated on the said land. Third prayer has been made that pending admission and final hearing of this petitioner, the petitioner be granted permission to construct the Kutchha hut on the said land temporarily to avoid hardships and inconvenience. Fourth prayer has been made that the respondent Nagar Palika be directed to restore the Kutchha hut on the said land of the petitioner. Fifth prayer has been made to pass an order calling upon the respondent Nagar Palika to pay the damage to the tune of Rs. 4000/= to the petitioner.

(2.) . The facts of the case , in brief, as stated by the petitioner in the special civil application, are that the father of the petitioner is the owner of the land in dispute under a gift deed executed in his favour by his maternal uncle. It is case of the petitioner that the maternal uncle of the father of the petitioner had purchased this land from Kapadwanj Nagar Palika in the year 1984. The petitioner is in possession of the said land. He is residing in a Kutchha hut on the said land and he is also having his Pan shop. The petitioner earlier having apprehension of his dispossession from the suit land by respondent Nagar Palika approached to this Court by filling Spicial Civil Application No. 6312 of 1995. In the said special civil application, the learned A.G.P. made a statement before this Court that if any action for removal of encroachment is undertaken,the same would be in accordance with law after giving an opportunity of hearing to the petitioner. On the statement of the learned A.G.P., the petitioner has withdrawn that writ petition at that stage. This decision has been taken on 6th Oct. 1995. It is the case of the petitioner that the respondent Nagar Palika was a party to the Special Civil Application No. 6312/95 and it knew well about the undertaking given by the Asstt. Gqvt. Advocate. It is the grievance of the petitioner that in spite of this undertaking given by the A.G.P. in the earlier proceedings on 11th march 1999, the respondent Nagar Palika had demolished the Kutchha construction of the petitioner on the land in dispute without giving any show cause notice as contemplated under the provisions of the Gujrat public premises (Eviction of Unauthorized Occupants) Act, 1972, as also contemplated under the Gujarat Municipalities Act and without giving any opportunity of being heard to the petitioner. Hence this special civil application before this Court.

(3.) . Though in the special civil application, the petitioner has not disclosed, but during the course of arguments, the learned counsel for the petitioner has brought to the notice of this Court, the following facts. After decision in the special Civil Application No. 6312 of 1995, the petitioner filed Civil Suit in the Court of Civil Judge (S.D.), Nadiad, in respect of this very disputed land. In the suit, what the learned counsel for the petitioner urged that prayer has been made by petitioner to direct the Nagar Palika to execute the sale deed of land in dispute in favour of the father of the petitioner. He also informed to the Court that the suit has been filed jointly, both by the petitioner and his father in the Court of Civil Judge (S.D.), Nadiad. The learned counsel for the petitioner admits before this Court that Special Civil Application No. 6312 of 1995 has been filed by the present petitioner only. So the petitioner's father was not a party to aforesaid special civil application. The present special civil application is filled by petitioner only and not his father. The father of the petitioner is alive. The father of the petitioner has not executed any document whatsoever to transfer his alleged right, title and interest which he possesses in the suit land in favour of the petitioner.