Whether this case involves a substantial question v. PUSHPABEN V BHATIA & 1

ORDER 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 4 5 Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? Whether it is to be circulated to the civil judge ? ===================================================================== STATE OF GUJARAT & 2 - Appellant(s) Versus PUSHPABEN V BHATIA & 1 - Respondent(s) ==================================================================== Appearance in LPA 1541/2006 in SCA 4910/1999 with LPA 549/2007 in SCA 1088/1999 with LPA 550/2007 in SCA 1087/1999 with LPA 658/2008 in SCA 4788/1999 : MR APURVA DAVE, AGP for Appellants. None for Respondent(s) : 1, MR PRAKASH K JANI for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.5,1.2.7 MR MC SHAH for Respondent(s) : 1.2.4, 1.2.6,1.2.8 MR MG NAGARKAR for Respondent(s) : 2, Appearance in LPA 1542/2006 in SCA 4564/1999 with LPA 1543/2006 in SCA 1085/1999 with LPA 1544/2006 in SCA 1086/1999 with LPA 1545/2006 in SCA 1089/1999 : MS SANDHYA NATANI, AGP for Appellants. None for Respondent(s) : 1, MR PRAKASH K JANI for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.5,1.2.7 MR MC SHAH for Respondent(s) : 1.2.4, 1.2.6,1.2.8 MR MG NAGARKAR for Respondent(s) : 2, Appearance in LPA 1546/2006 in SCA 4860/1999 with LPA 1547/2006 in SCA 4558/1999 with LPA 1548/2006 in SCA 1084/1999 with LPA 1549/2006 in SCA 4829/1999 : MS NISHA PARIKH, AGP for Appellants. None for Respondent(s) : 1, MR PRAKASH K JANI for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.5,1.2.7 MR MC SHAH for Respondent(s) : 1.2.4, 1.2.6,1.2.8 MR MG NAGARKAR for Respondent(s) : 2, ===================================================================== CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH HONOURABLE MS.JUSTICE H.N.DEVANI Date : 07/10/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) The first group of 11 appeals filed by the State of Gujarat and its officers is directed against common judgment and order dated 21.12.2005 of the learned Single Judge allowing the petitions which were filed by LPA/154120/2008 ORDER the respondents herein. Letters Patent Appeal No.658 of 2008 is directed against the subsequent judgment dated

19.12.2006 of another learned Single Judge following the aforesaid decision dated 21.12.2005. Since all the appeals raise common questions of law and facts, they have been heard together and are being disposed of by this common judgment.

2. The broad facts are not in dispute. In the year 1968, Vijapur Municipality issued a public notice for auctioning 36 plots in City Survey No. 3252 within the limits of Vijapur Municipality. The plots were leased out to the highest bidders. These plot holders put up construction of shops on the respective plots with prior permission of the Municipality. The original allottees or their sub-tenants have been carrying on business in the said shops for last about 40 years. After the sub-plots were so auctioned in the year 1968, for the first time in the year 1999, the State Government issued a show cause notice calling upon the occupants of the shops to remove the construction and to hand over the possession of the plots to the State Government. The show cause notices dated 2.2.1999 indicated that the land bearing Survey No.3252 in Vijapur town belonged to the State Government and that the construction encroached LPA/154120/2008 ORDER upon public roads. The said show cause notices came to be challenged before the learned Single Judge.

3. On behalf of the State Government, affidavit- in-reply was filed contending that the land bearing Survey No.3252 is a Government land and the same is a reserved plot and the petitioners had encroached upon the same by constructing the shops. However, in the said affidavit-in-reply, there was no contention about alleged encroachment on any public road. The focus in the affidavit-in-reply as well as in the oral submissions made on behalf of the Government was that the Municipality acted illegally in giving lease hold rights to the petitioners when the land actually belonged to the Government.

4. The learned Single Judge held that except for stating that the land did not belong to the Municipality and that it belonged to the State Government, the State Government did not produce any record. In absence of any material, the learned Single Judge declined to give any finding on the question of ownership of the land in question but held that after passage of more than 30 years, the State Government cannot be permitted to evict the petitioners from the shops in question which had been LPA/154120/2008 ORDER constructed by the petitioners after obtaining the lease hold rights in the plots from the Municipality as far back as in the year 1968. The summary of the reasons given by the learned Single Judge is to be found in Para-11 of the judgment in the following words:- “Considering the fact that Nagarpalika held public auction in the year 1968 pursuant to which the plots were leased out, considering the fact that from the year 1968 till 1999 Government took no action to initiate any proceedings in this regard, considering the fact that there is no sufficient material on record to conclude the controversy regarding the original ownership of the properties in question, considering the fact that the petitioners have been enjoying the use and occupation of the properties in question since decades, considering the fact that it has not been the case that construction in any manner infringes any of the building bylaws, rules and regulations and lastly considering the fact that it is not even the case of the Government that construction encroached on any public road, I do not find it appropriate at this stage to permit the Government to proceed further with the proposed show cause notice. Though titled as show cause notice, notice dated 02.02.1999 is based on the conclusion of the Government that the occupation of the petitioners is unauthorised.”

5. The learned Assistant Government Pleaders for the State Government and its officers have submitted that the land belonged to the State Government and no evidence LPA/154120/2008 ORDER was produced on behalf of the petitioners or the Municipality to show that the land belongs to the Municipality. Hence, the learned Single Judge ought to have held that the land belonged to the State Government and as a necessary corollary, the learned Single Judge ought to have dismissed the petitions which were filed for challenging the show cause notices issued by the Government. It is also submitted that what was challenged before the learned Single Judge was the show cause notices and therefore also, the petitions should have been dismissed.

6. On the other hand, learned counsel for the private respondents as well as learned counsel for the Municipality have supported the judgment of the learned Single Judge.

7. Having heard the learned counsel for the parties, we find no infirmity in the judgment of the learned Single Judge. The learned Single Judge has made it clear that for want of sufficient material, the learned Single Judge did not express any opinion on the question of ownership of the land in question. However, for the cogent reasons given by the learned Single Judge, with which we concur, the State Government cannot be LPA/154120/2008 ORDER permitted to evict the original petitioners from the plots in question, nor can the State Government be permitted to demolish the shops constructed by the petitioners after getting leasehold rights in the plots at the public auction which was conducted by the Municipality as far back as in the year 1968. We may not be treated to have expressed any opinion on the question of ownership rights over the land in question, but if at all the State Government has any claim against the Municipality in respect of the rent being collected by the Municipality, it will be open to the State Government to take appropriate steps for recovery of such rent after establishing its title over the land in question.

8. Subject to the above clarification, the appeals are dismissed. (MOHIT S. SHAH, J.) (HARSHA N.DEVANI, J.) mrpandya*