Kanjibhai Shambhubhai Godhani vs Collector of Ahmedabad

Mr. A.J. Desai, J. (Oral)—By way of the present petitions under Articles 14 and 226 of the Constitution of India, the petitioners have prayed to issue a writ of mandamus by directing the respondent No.1 to hand over possession of the lease area situated at Survey No.765, Sabarmati River, Block No. V-1 admeasuring 1.72.49 hectares, Block No. V-2 admeasuring 1.96.02 hectares and Block No. V-5 admeasuring 1.78.77 hectares, after removing unauthorized occupants, to the respective petitioners in view of execution of lease deeds dated 5.8.2013. The petitioners have also prayed to direct the respondent No.1 to extend the period of lease executed on 5.8.2013 for further period of 1 year from the date of handing over the possession of the lease area.

Though notices are served to the respondents - State authorities, no affidavit-in-reply has been filed by any of the respondents.

However, during the pendency of these petitions, Civil Applications No.7037 to 7039 of 2016 have been filed in each of the writ petitions by those persons who claim that they are in possession of the land in question for which the respondent authority has given leasehold rights to each of the petitioners for carrying out excavation of sand - mines and minerals for a period of one year from the date of handing over the possession of the land in question.

It is the case of the petitioners that pursuant to an advertisement dated 13.9.2011 issued by the respondents for allotment of Block in Sabarmati River on lease for excavation of sand for a period of one year, the petitioners took part in the auction and offered highest rate for the said excavation and accordingly, by an order dated 5.3.2013, lease was granted for the same for a period of one year from the date of handing over possession of the block allotted to each of the petitioners. The petitioners have paid the amounts as per the agreement.

When the petitioners intended to start the excavation, they found that the blocks which were to be handed over to the petitioners for excavation, were encroached by some farmers. Therefore, the petitioners requested the District Collector, Ahmedabad by way of communication dated 30.9.2013 to hand over peaceful and vacant possession of the blocks allotted to them. A reminder was also sent on 11.10.2013. Pursuant to the said communication/representation of the petitioners , the Deputy Collector, Ahmedabad vide letter dated 17.10.2013 directed the Mamlatdar, Daskroi to take appropriate steps in the matter. However, no action was taken. Hence, another reminder/representation was sent by the petitioners on 20.12.2013 requesting the Collector, Ahmedabad to hand over the vacant and peaceful possession of the blocks in question. Since no action has been taken by the respondent authorities, the present writ petitions have been filed for the above mentioned reliefs.

Mr. D.P. Kinariwala, learned advocate appearing with Mr. Nikunj D. Balar, learned advocate appearing for the petitioners would submit that though the lease agreement has been executed between the parties way back on 5.8.2013 and number of reminders were sent to the Collector, Ahmedabad for handing over peaceful and vacant possession of the blocks in question, no action has been taken to remove the illegal encroachers who have preferred Civil Applications requesting this Court to join them as parties in the writ petitions, though they have no legal right over the blocks in question which has been given to the petitioners for excavation. He would further submit that the representations submitted by the said encroachers to regularize their possession/occupation of the blocks in question is rejected by the District Collector, Ahmedabad by order dated 31.3.2016 and even thereafter, by another order dated 29.8.2016 which was passed subsequent to the order passed by this Court after hearing the encroachers, the respondent authority is bound to hand over the possession of the blocks in question in favour of the petitioners which has been granted on lease for a period of one year and the amount is paid way back in the year 2013. He, therefore, would submit that the petitions be allowed.

Ms. Dhrumi Thakore, learned advocate appearing for the encroachers - applicants of Civil Application Nos.7037 to 7039 of 2016, would submit that the applicants are in possession of the blocks in question since last number of years and, therefore, the Collector could have regularized the occupancy rights over the blocks in question, even though the same is rejected by the District Collector, Ahmedabad. She would further submit that the order passed by the District Collector, Ahmedabad is challenged before the State of Gujarat which is pending for hearing. She, therefore, would submit that when the matter is pending before the higher authority, the present writ petitions may not be entertained at this stage.

Mr. K.M. Antani, learned Assistant Government Pleader appearing for the respondent authorities would submit that the encroachers have no right, title or interest over the blocks in question and, therefore, the respondent authority has rightly refused to regularize illegal encroachment and that too on the river bed which has been granted for excavation, cannot be regularized. He would further submit that some of the residents of the village where the land is situated had preferred Public Interest Litigation being Writ Petition (PIL) No.299 of 2014 alleging that some illegal mining activities are going on in the area in dispute. The said writ petition came to be dismissed by the Division Bench on 13.1.2016. He would further submit that illegal encroachers are trying to restrain the State authorities to act in accordance with law and, therefore, the respondent authorities are not in a position to hand over the possession of the blocks to the petitioners. He, upon instructions from Mr. K.K. Zala, Mamlatdar, Daskroi who is personally present in the Court, who has received instructions from Mr. A.B. Gaur, In-charge District Collector, Ahmedabad, states that vacant and peaceful possession of the blocks in question shall be handed over to the petitioners as expeditiously as possible and shall see that law and order situation is not freezed while removing encroachers from the blocks in question.

I have heard learned advocates appearing for the respective parties. The applicants, who have filed Civil Applications to be joined as parties in the writ petitions, on the ground that they have interest in the land in question, which has been granted to the petitioners for excavation of sand from Sabarmati river bed. However, they have failed to establish any right, title or interest in the land in question. Not a single document in support of possession has been produced by the applicants. There is no document in support of the contention raised by Ms. Thakore that the land in question was being cultivated by the farmers and their forefathers. This aspect has also been considered by the District Collector, Ahmedabad who has heard the matter twice as per the order of this Court.

I have also gone through the order dated 13.1.2016 passed by the Division Bench in Writ Petition (PIL) No.299 of 2014. Relevant observations made in paragraph 12 of the order reads as under :-

"12. Apart from the above, as we indicated in the earlier paragraph, the petitioner, prima facie, appears to be a projected person of those, who have made encroachment over the Government land and they are seeking regularization of their encroachment. It is not a mere allegation made against the petitioner, but is also supported by some document. The petitioner, in the present petition, has taken support of the representation made by one Mr. Bharatbhai Naik, making complaint against the excavation of mine and taking away of the Government land. The said Bharatbhai Naik is one of the petitioners in the proceedings of Special Civil Application No.9206 of 2014, copy whereof is produced at Annexure-R-1. The name of the said Bharatbhai Naik is one of the petitioners together with the other persons, who have preferred the petition. Further, as recorded by us herein above in the earlier paragraph, at paragraph 2 of the said petition, it has been stated that the petitioners were challenging the inaction on the part of the respondent authorities in not deciding the representation dated 22.1.2014 preferred by the petitioners and other similarly situated 76 applicants seeking regularization of the land in dispute. Though the prayers made in the petition were to direct the representation to be decided, but such representation was for regularization of the encroachment or unauthorised occupation by the petitioners and other persons on whose behalf the petition was filed. The another aspect is that the photographs, which were produced in the said petition are also produced for supporting the case of the present petition. There appears to be a linkage between the petitioners of SCA No.9206 of 2014 and the petitioner herein. Under these circumstances, we find that as the encroachers over the Government waste land have not succeeded in getting the possession regularized, in order to see that there may not be any adverse effect on their right of regularization over the very land for which the lease has been granted, the petitioner is projected as one of the so-called public interest litigants of the petition is filed on his name. There are no antecedents whatsoever on the part of the petitioner of having taken up any public petitioners and other similarly situated 76 applicants seeking regularization of the land in dispute. Though the prayers made in the petition were to direct the representation to be decided, but such representation was for regularization of the encroachment or unauthorised occupation by the petitioners and other persons on whose behalf the petition was filed. The another aspect is that the photographs, which were produced in the said petition are also produced for supporting the case of the present petition. There appears to be a linkage between the petitioners of SCA No.9206 of 2014 and the petitioner herein. Under these circumstances, we find that as the encroachers over the Government waste land have not succeeded in getting the possession regularized, in order to see that there may not be any adverse effect on their right of regularization over the very land for which the lease has been granted, the petitioner is projected as one of the so-called public interest litigants of the petition is filed on his name. There are no antecedents whatsoever on the part of the petitioner of having taken up any public cause, nor does the petitioner by filing the present petition as social activist. Therefore, we are of the view that, apart from the aspect of bona fide are seriously doubtful, even the petitioner appears to be a busybody and is a projected person for the purpose of so-called public cause, which otherwise also is not on merit. As per the decision of the Apex Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402 and more particularly the concluding observations made at paragraph 181, it has been observed that the Court before entertaining PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury and the Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. It has been further observed in the said paragraph that the Court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the cause, nor does the petitioner by filing the present petition as social activist. Therefore, we are of the view that, apart from the aspect of bona fide are seriously doubtful, even the petitioner appears to be a busybody and is a projected person for the purpose of so-called public cause, which otherwise also is not on merit. As per the decision of the Apex Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402 and more particularly the concluding observations made at paragraph 181, it has been observed that the Court before entertaining PIL should ensure that the .PIL is aimed at redressal of genuine public harm or public injury and the Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. It has been further observed in the said paragraph that the Court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."

Making the above observations by the Division Bench, the said Writ Petition (PIL) No.299 of 2014 was dismissed by imposing heavy cost of Rs. 50,000/- to those petitioners who were before the Court in the said petition for some ulterior motive.

I have also considered the Civil Applications filed by the encroachers. It is pertinent to note that the applicants might have filed some revision applications. However, there is no stay of the order of the Collector, Ahmedabad or restraining the authorities from handing over the possession of the block in question for excavation purpose to the petitioners.

Considering the overall facts and circumstances of the case, I am of the opinion that the present writ petitions require consideration and hence, the same are allowed. The District Collector, Ahmedabad is hereby directed to hand over the vacant and peaceful possession of each block in favour of each petitioner as per the allotment order dated 5.3.2013, as expeditiously as possible preferably within a period of four weeks from today. The Collector, Ahmedabad may take help of the Police personnel while taking up the possession from the encroachers. It is needless to state that the period of lease of one year shall be counted from the date of possession to the petitioners. Rule is made absolute to the above extent in each of the petitions.

In view of disposal of the writ petitions, Civil Applications are accordingly dismissed.

Direct service is permitted.