Judgment:
J.N. Bhatt, J.
1. This writ petition, under Article 226 of the Constitution of India is filed against the alleged illegal and arbitrary action of the respondents in demolishing the cabin and platform-otta of the petitioner.
2. A spectrum of material and relevant facts in the petition may be highlighted at the outset. The petitioner was allotted the land admeasuring 10 sq.ft. situated on Tikar Road Halvad, after bidding the highest offer in auction held on 21.2.1991. The petitioner paid an amount of Rs.1125/- to the respondent no. 2, Halvad Municipality, by way of caution money for the said land. Pursuant to the Resolution recorded in a general meeting of the respondent no. 2,- Municipality, being Resolution no. 28 for the purpose of allotting the land for the construction of cabin on Tikra road of Halvad town, rent note for the said land, came to be issued in the name of the petitioner and pursuant to that, the cabin came to be constructed. Thereafter the petitioner moved the respondent no. 2- Municipality for the grant of permission for construction of platform-otta near the cabin of the petitioner and the said permission was granted on 31.12.1991. Later on, the petitioner also applied for the allotment of adjoining land, near the cabin on 11.1.1993. It was also granted by the respondent no. 2Municipality by Resolution no. 28, upon the condition to pay Rs.60/- per sq.ft. as a development charges. The petitioner also executed the Rent Note for the second parcel of land. The petitioner has, therefore, interalia contended in his petition that upon permission and the Resolution of the respondent no. 2-Municipality, he has been in occupation and enjoyment of the land.
3. The respondent no. 2 , on 29.6.1995, has issued notice to the petitioner along with the other occupants of the land rented out by the Municipality for the removal of the illegal construction on the said land, which led to the petitioner to file Regular Civil Suit no. 90 of 1995 before the Court of Civil Judge (SD), Dhrangadhra and obtained ad interim order against the removal of the disputed land. By virtue of the ad interim order, the respondents were directed to maintain status quo in respect of the disputed parcels of land. The ad interim injunction or ad interim order came to be vacated, and as a result of which, the petitioner had to file an appeal being Civil Miscellaneous Appeal no. 12 of 1998, before the Joint District Judge, Dhrangadhra for setting aside the order passed below Exh.6 in a suit, rejecting the application for temporary injunction, after hearing both the parties. The petitioner succeeded in the appeal and again the respondents were directed to maintain status quo, pending the final decision of the Civil Suit. It is the contention of the petitioner that pursuant to the pursis filed in the suit before the Trial Court, stating that they will not take any further action qua the disputed lands, on the basis of which the civil suit came to be withdrawn on 07.12.2002.
4. Again on 12.12.1993, the respondent no. 2- Municipality directed the petitioner to remove the unauthorized construction on the land allotted to him. The petitioner, therefore, issued notice on the same day informing the respondents that there was no question of encroachment of the land and, therefore, he desist from taking any further action pursuant to the notice given by the respondent no. 2. Despite the notice of the petitioner on 16.12.2003, the respondents demolished the structure situated on the land allotted to the petitioner, which gave a birth to the petition, under Articles 226 and 227 Constitution of India.
5. The respondents-authorities, by filing an affidavit-in-reply have resisted the pleas and averments made in the petition by raising the following contentions.
[1] That the land upon which the cabin of the petitioner is situated is forming part of the area within the road width of the Halvad Tikkar State Highway.
[2] That when the road is passing from the residential areas and industrial areas, the construction is required to be made at the distance of 10.5 mts. from the central line of the road on either side, whereas, the platform-otta of the petitioner is situated within the said prescribed prohibited limit.
[3] That thus, there is a breach of Ribbon Development Rules and the unauthorized construction of the cabin of the petitioner came to be removed on 16.12.2003.
[4] That the respondent no. 2 was informed to take the possession of the said road and despite that, the possession was not taken by the Municipality and, therefore the possession of said road remained with the Road and Building Department of Respondent no. 1.
[5] That the petitioner has no right, as there is an encroachment and in violation of the Road Development Plans of 1980-2001 of District Surendgrnagar.
[6] That the respondents no. 1 and 2, State of Gujarat as well as Halvad Municipality, had to go for unauthorized encroachment after making it public and giving a notice and despite frequent and repeatedly notice, the petitioner failed to remove the unauthorized construction.
[7] That the construction of the platfrom-otta was permitted as a temporary measure with a specific term and condition that it may be removed at any time without any notice to the petitioner.
6. We have heard the learned advocates appearing for the parties. We have also dispassionately examined the entire record. We have also carefully perused the orders of respondent no. 2, whereby, the land for construction of cabin was granted and subsequently, adjoining land granted for the purpose of construction of platfrom-otta.
7. Upon correct appraisal and true analysis of the factual profile emerging from the record of the present case, it is very clear that the lease granted by respondent no. 2, Halvand Nagar Palika, initially for the period of 5 years and it was extended for further period of 3 years and that period has already been expired and also the construction was within the prohibited area of 10.5 sq.mts. from the central line of the road. Thus, there has been a breach of Urban development Rules and, therefore, the construction was unauthorized and the lease period for cabin construction on the land of respondent no. 2- Municiplaity has expired and there has been request made by the petitioner to extend the same. It is also stated at the Bar that the cabin and the platform-otta portion, both have been removed being unauthorized, by the respondents-authorities. The petitioner has not been able to substantiate any legal right, which could be protected by this Court in exercise of powers under Article 226 of the Constitution of India. The jurisdictional swipe of this Court, in exercise of its power under Article 226 of the Constitution, undoubtedly is discretionary, plenary, equitable and prerogative. The first condition to be established by the persons, seeking writ from this Court by invocation of Article 226 of the Constitution to show any legal right, which is conspicuously absent in so far as the claim of the petitioner is concerned in respect of the disputed parcel of lands as well as the platform-otta.
8. It is also expedient to mention at this juncture that even Section 65 of the Gujarat Municipality Act, 1963 inhabits the power of granting lease for more than 3 years without previous permission of the State Government. It is an admitted fact that no such previous permission of the State Government had been obtained. Therefore, the initial grant of lease for the purpose of construction of cabin for 5 years, without permission of the State Government, is unauthorized and not valid. Apart from that, even from the extended period of 3 years, further renewal is not made. Therefore, the petitioner, who has been claiming leasehold right in the disputed lands, has expired long before, by efflux of time.
9. However, the reliance is placed on two decisions of this Court on this aspect. In Prabhudas Kalyanji v. Haji Hasan, 1983 GLH -395, in a similar case, while interpreting the provisions of Section 65, it has been held that the lease is granted by the Municipality in violation of provisions of Section 65 for a period of more than three years, without prior permission of the State Government, any such lease, by the Municipality will be without any authority of law and, therefore, non est. The reliance is also placed on the second decision of this Court rendered in Manjulaben Rameshchandra Barot v. Collector of Mehsana, 1995 [2] GLH-701 wherein it has been held that the lease of property in violation of Section 65, without prior permission of the State Government is invalid and non est, following the decision in Prabhudas Kalyanji's case (supra)
10. Again there was a specific condition incorporated in the grant in respect of adjoining land that it could be removed by the respondents, at any time without any notice. Apart from that, Section 111 of the Transfer of Property Act, which prescribed as may as 8 modes for the determination of the lease, and one of the mode for determination of lease, is by efflux of time. Therefore, the position which is obtainable is that the petitioner has no any recognizable, acceptable, valid protectable legal right. Obviously, therefore, the petitioner cannot claim protection by invocation of Article 226 of the Constitution of India. Again the continuance of use of occupation is shown to be in breach and in violation of Urban Development Rules.
11. After having taken into consideration the legal status of the petitioner qua the disputed land and the action taken by the respondents-authorities, we have no hesitation in finding that the petition is meritless and is required to be rejected. Accordingly, the petition is rejected, however, without any order as to costs. Notice is discharged.
12. Interim relief granted earlier, obviously shall stand vacated.