Gujarat High Court
SCA/5604/1987 of YAKUBBHAI NOORJIBHAI KHERADA. Vs DEPUTY ENGINEER, on 2 August 1995
Decision: 2nd August 1995 SPECIAL CIVIL APPLICATION NO. 5604 of 1987 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA 1. Whether Reporters of Local Papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? No 3. Whether their Lordships wish to see
���Date of Decision: 2nd August 1995
SPECIAL CIVIL APPLICATION NO. 5604 of 1987
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHA
1. Whether Reporters of Local Papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether their Lordships wish to see the fair copy of judgment? No
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No
5. Whether it is to be circulated to the Civil Judge? No
-------------------------------------------------------------Shri V.H. Patel, Advocate, for Shri H.L. Patel, Advocate, forthe Petitioners Shri V.B. Gharaniya, Asst. Govt. Pleader, for theRespondents-------------------------------------------------------------CORAM: A.N. DIVECHA, J.(2nd August 1995)
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ORAL JUDGMENT
The action of removal of the cabins of the petitionerssituated on Modasa Dhansura Road near Modasa S.T. Bus Standis under challenge in this petition under Art.. 226 of theConstitution of India.
2. It is not necessary to set out in detail the factsgiving rise to this petition. It is sufficient to note thatthe petitioners have their cabins on Modasa-Dhansura Roadnear the S.T. Bus Stand at Modasa. Their case is similar tothose of the petitioners in Special Civil Applications Nos.3589 of 1982 and 3719 of 1982 decided on 5th August 1994. Inthat case, the petitioners had their cabins on Veraval SasanRoad near the bus stand at Talala. In its Division Benchruling of this court in the aforesaid two petitions, it hasbeen held that no one has a right to carry on business incabins or gallas on such roads. Sitting as a single Judgethe aforesaid Division Bench ruling of this court is bindingto me. Even otherwise I am in respectful agreementtherewith.
3. Shri Patel for the petitioners has however urged thatthe respondents have not followed the procedure prescribed insec. 202 of the Bombay Land Revenue Code, 1879 ('the Code'for brief), and as such their impugned action cannot besustained in law. In support of his submission, Shri Patelhas relied on the ruling of this court in the case of KhodaDhor Panjara Pole Sanstha, Radhanpur and Anr. v. The Stateof Gujarat and Ors. reported in 1984 G.L.H. 970. Section202 of the Code would be applicable to Government lands.Lands used for road passing through a town or a village wouldvest in the concerned local authority. In that view of thematter, sec. 202 of the Code will not be applicable.
4. Shri Patel for the petitioners has then submitted thatthe action of removal of the cabins of the petitioners is nottaken by any local authority but by the Government officers.If the petitioners have no right to cling to their cabins orgallas on the public road, it is immaterial by whom they areremoved. It is possible that they might have been removedtherefrom at the instance of the concerned local authority.
5. In view of my aforesaid discussion, I have found nomerit or substance in this petition. It deserves to berejected.
6. In the result, this petition fails. It is herebyrejected. Rule is accordingly discharged with no order as tocosts. The ad-interm relief stands vacated.
7. At the oral request of Shri Patel for the petitioners,the operation of this judgment is stayed for a period of twoweeks from today to enable the aggrieved petitioners to carrythis matter by means of an appropriate proceeding before anappropriate forum. Direct service is permitted.
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sca.5604.87/hn