Sir L.A. Shah Law College Samir B.
Gogda
Roll No. 32
Moot Problem No. 1
Shri Veljibhai Thakor
(Petitioner)
V/s
Government of Gujarat
(Respondent)
Memorial On Behalf of The Respondent
Acts:
CONSTITUITON OF INDIA,1950
GUJARAT MUNICIPALITY ACT,1963
INDIAN PENAL CODE,1860
MUMBAI MUNICIPALI CORPORATION ACT,1888
Statement Of Facts:
1)Petitioner is the leader of the Thakor community residing at Thakor Vas
near Opera Cricket Stadium, Ahmedabad. There are about 300 persons
residing at Thakor Vas by building Kachcha Houses /Huts since last 30 years.
2)Entire Stadium is being reconstructed in order to accommodate more
spectators. It would be the largest cricket stadium of the country having
capacity of more than 1 lac viewers. In order to construct a big parking plot
near Opera Cricket Stadium, the Respondent has issued notices to the
residents of about 50 huts to evict the place within 7 days from the date of
issuance of the notice, failing which the huts will be demolished by the
Respondent as the same are illegal and on the Goveniment land.
3)Petitioner alongwith other community members met the concerned officer
of the Respondent, Mr. Shrivastav and requested him by giving representation
to withdraw the notice and not to demolish their houses. Mr. Shrivastav
refused to do the same and again directed them to vacate the place within
the prescribed time. He further said that the place where the Thakor Vas is
established is Respondent Land and has been illegally occupied.
4) Being aggrieved by the adamant decision of the Respondent, Petitioner has
filed writ petition under Article 226 of the Constitution of India seeking
relief not to demolish their houses.
So that, the respondent is called upon by the Hon'ble High Court of Gujarat by
issuance of Rule in the writ petition looking to the urgency in the matter. The
Respondent has opposed the writ petition and The entire writ petition has
come up for the final hearing before the honourable court.
Statement of Issues:
1) The counsel would like to submit the issue no. 1 that Petitioner
have any right to live on disputed land or not?
SUMMARY OF ARGUMENTS:
-Submission regarding to issue no. 1 is Petitioner have no right to live on
disputed land and Right to shelter is not a fundamental right and hence the
same cannot be made enforceable before this Hon'ble Court.. bcz no person
has any legal right to encroach upon or to construct any structure on a foot-
path, public street or on any place over which the public has a right of way.
The right conferred by Article19(1) (e) of the Constitution to reside
and settle in anypart of India cannot be read to confer a
licence to encroach and trespass upon public property.
- Submission regarding to issue no. 1 is entire Thakor Vas is on the
Respondent Land of a proposed plan, it is public nuisance. Public nuisance
cannot be legalized with the passage of time.It is mentioned as per law in
Section 268 in The Indian Penal Code
268. Public nuisance.—A person is guilty of a public nuisance who does any
act or is guilty of an illegal omission which causes any common injury, danger
or annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public
right. A common nuisance is not excused on the ground that it causes some
convenience or advantage.
Statement of Issues:
2) The counsel would like to submit the issue no. 2 that respondent
have any right to demolish the huts of petitioner from the disputed
land?
SUMMARY OF ARGUMENTS:
- Submission regarding to issue no. 2 is respondent have right to demolish
the huts of petitioner from the disputed land and The people of Thakor Vas,
despite of several notices did not vacate the illegally occupied premises and as
a last resort the notice of demolition is issued .
-The counsel relies upon the provisions of Section 185 of
the Gujarat Municipalities Act, 1963 which empowers the Municipality to
remove the obstructions and encroachments upon public place and open
spaces. The relevant part of the provision is contained in Sub-section (2)
of Section 185 of the Act, which reads as follows:
(2) The Chief Officer shall have power to remove any such construction or
encroachment, and shall have the like power to remove any unauthorised
obstruction or encroachment of the like nature in any open space not being
private property, whether such space is vested in the Municipality or not;
provided that if the space be vested in Government the permission of the
Collector shall have first been obtained; the expense of such removal shall be
paid by the person who has caused the said obstruction or encroachment, and
shall be recoverable in the same manner as an amount claimed on account of
any tax recoverable under Chapter IX.
-The counsel relies upon the provisions of Section 314 in Bombay
Municipal Corporation Act, 1888
Power to remove encroachments “without notice”.
The Commissioner may, without notice, cause to be removed:
any person, unauthorisedly occupying or wrongfully in possession of
any public land, from such land together with all the things and material
unauthorisedly placed, projected or deposited on such land by such person.
- Submission regarding to issue no. 2 is Alternative accommodation was
also suggested to petitioner by respondent but the same was not acceptable to
them.
The counsel relies upon the judgment of Olga Tellis v. Bombay Municipal
Corporation case. It was decided in 1985 by the five Judges Bench of
the Supreme Court of India.
This case came before the Supreme Court as a writ petition by persons who
live on pavements and in slums in the city of Bombay. It was prayed by the
petitioners to allow them to stay on the pavements against their order of
eviction.
Some main points include;
o "For the purposes of argument, we will assume the factual
correctness of the premises that if the petitioners are evicted from
their dwellings, they will be deprived of their livelihood. Upon that
assumption, the question which we have to consider is whether
the right to life includes the right to livelihood, We see only one
answer to that question, namely, that it does. The sweep of the
right to life conferred by Art. 21 is wide and far-reaching... That,
which alone makes it possible to live, leave aside what makes life
liveable, must be deemed to be an integral component of the right
to life."[1]
o "Two conclusions emerge from this discussion: one, that the right
to life which is conferred by Art. 21 includes the right to livelihood
and two, that it is established that if the petitioners are evicted
from their dwellings, they will be deprived of their livelihood. But
the Constitution does not put an absolute embargo on the
deprivation of life or personal liberty. By Art. 21, such deprivation
has to be according to procedure established by law"
o "In order to minimise the hardship involved in any eviction, we
direct that the slums, wherever situated, will not be removed until
one month after the end of the current monsoon season..."
Prayer:
-1)Petitioner have no right to live on disputed land.
-2)Respondent have right to demolish the huts of petitioner from the
disputed land
- 3) To dismiss the aforesaid writ petition with costs.
-4) And pass any other order the hon’ble court may deem fit in the
interest of justice ,equity and good conscience.
