Gujarat High Court
Bindal Silk Mills Pvt Ltd & vs Surat Urban Development Authority & on 19 August, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11814/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.11814 of 2015
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BINDAL SILK MILLS PVT LTD & 1....Petitioner(s)
Versus
SURAT URBAN DEVELOPMENT AUTHORITY &
2....Respondent(s)
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Appearance:
MR KK TRIVEDI, ADVOCATE for Petitioner(s) No.12
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 19/08/2015
ORAL ORDER
(1) Heard Mr.K.K.Trivedi, learned advocate for the petitioners, Mr.H.S.Munshaw, learned advocate, with Mr.Rajesh M. Chauhan, learned advocate for respondent No.1SUDA and Ms.Jyoti Bhatt, learned Assistant Government Pleader for respondent Nos.2 and 3 on advance copy.
(2) By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue appropriate writ, order or direction for quashing and setting aside the impugned notice dated 18.03.2015 as well as Notification dated 27.08.2012.
Or in the alternate (B) The Hon'ble Court be pleased to issue writ, order or direction directing the respondents to make modification/variation in the road line affecting the constructed property of the petitioner No.1 situated on the land bearing Survey No.313/A paiki, Block No.270, area admeasures 1042 sq.mtrs. of Village: Kumbhariya, Tal. Choryasi, Dist: Surat.
Page 1 of 4HC-NIC Page 1 of 4 Created On Thu Aug 20 01:28:50 IST 2015 C/SCA/11814/2015 ORDER (C) Pending final hearing and disposal of this petition, the Hon'ble Court be pleased to grant interim/adinterim relief staying the operation and implementation of the impugned notice dated 18.03.2015 as well as Notification dated 27.08.2012 qua the land bearing Survey No.313/A paiki, Block No.270, area admeasures 1042 sq.mtrs. of Village: Kumbhariya, Tal. Choryasi, Dist: Surat.
(D) Pending hearing and final disposal of the petition, the Hon'ble Court be pleased to direct the respondents to measure and mark the road line affecting the constructed property of the petitioner No.1 situated on the land bearing Survey No.313/A paiki, Block No.270, area admeasures 1042 sq.mtrs. of Village: Kumbhariya, Tal. Choryasi, Dist: Surat.
(E) The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."
(3) Predominantly in the present petition the challenge is to the notice dated 18.03.2015 issued by the respondentSUDA as provided under Section 48A read with Sections 67 and 68 of the Gujarat Town Planning & Urban Development Act, 1976, (the Act) read with Rule 33 of the Gujarat Town Planning & Urban Development Rules, 1979 (the Rules). Said notice clearly indicates that the State Government has sanctioned Draft Town Planning Scheme No.35 (KumbhariaSaroliSaniya Hemad Devadh), City Surat, under Section 48(2) of the Act as the land in question belonging to the petitioners is forming part of the T.P. Road the present notice is given.
Page 2 of 4HC-NIC Page 2 of 4 Created On Thu Aug 20 01:28:50 IST 2015 C/SCA/11814/2015 ORDER (4) It goes without saying that even while implementing the said notice the respondentSUDA, as an appropriate authority, is required to follow the procedure as prescribed under the Act and the Rules. As provided under Section 48 of the Act itself the provisions of Section 68 of the Act and Rule 33 of the Rules would mutatis mutandis apply to the impugned notice at this stage. It would be appropriate to refer to the judgment of the Apex Court reported in the case of M/s. Babubhai and Company & Ors. Vs. State of Gujarat & Ors., 1985 (2) G.L.R. 883 wherein the Apex Court in Paragraph No.8 has held under:
"8. In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by sec. 54 it will appear clear that the topic of making of town planning schemes is dealt with in secs. 21 to 53 while sec. 54 (and some of the following sections like 55 and 71 to
78) deal with the aspect of the execution of town planning schemes and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in their occupation has been conferred upon the Local Authority itselfa highly responsible body, and that the power is required to be exercised by it in objective manner (it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying lands which they are not entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasijudicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record 622 Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Aug 20 01:28:50 IST 2015 C/SCA/11814/2015 ORDER eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, nongermane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court. Having regard to these aspects, more absence of corrective machinery by way of appeal or review would not in our view render the provision invalid."
(5) In light of the aforesaid binding decision, respondent No.1SUDA shall afford an opportunity of being heard to the petitioners and pass an appropriate order. It would be open to the petitioners to raise all contentions which are raised in this petition by filing an appropriate reply. As the scheme is at the draft scheme level and Town Planning Officer is yet to consider the scheme as provided under Section 52 of the Act, it would also be open to the petitioners to approach Town Planning Officer. It is further clarified that this Court has not expressed any opinion on merits of the matter.
(6) Petition is therefore not entertained at this stage. Disposed of accordingly Direct service permitted. No costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Aug 20 01:28:50 IST 2015