Gujarat High Court
Ladhabhai vs Ahmedabad on 26 August, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
SCA/2575/2012 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2575 of 2012 ========================================================= LADHABHAI GOPALDAS PATEL - Petitioner(s) Versus AHMEDABAD MUNICIPAL CORPORATION & 1 - Respondent(s) ========================================================= Appearance : MR SHALIN N MEHTA FOR MR MAULIN G PANDYA for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 24/02/2012 ORAL ORDER
Heard Mr.Shalin N. Mehta, learned advocate for Mr.Maulin G. Pandya, learned advocate for the petitioner. He has made the following submissions :
(i) That the petitioner was the original owner of 200.25 sq.mtrs. of land, including the construction. In the year 2001, he lost 74.85 sq.mtrs.
of land due to road expansion and now the petitioner is in possession of 125.40 sq.mtrs. of land, including the construction. The petitioner has been issued a notice dated 26.08.2011 under Section-212(1)(a) of the Gujarat Provincial Municipal Corporations Act, 1949 ("GPMC Act", for short), to remove the construction that is falling within the revised road-line, that has been prescribed for B.R.T.S. Route.
(ii) That the resultant situation would be that the petitioner would be left with only 4.00 feet of land, if the said notice is implemented. The petitioner has submitted his objections within the stipulated period of time, on 08.09.2011, stating all the relevant factual aspects therein. However, without considering the objections of the petitioner in proper perspective, the impugned notice under Section-212(2) of the GPMC Act dated 24.01.2012 has been issued to the petitioner, calling upon him to remove the construction, within a period of 35 days from the date of the notice.
(iii)That Section-212 empowers the Commissioner to order setting back of buildings to the regular line of the street. As per Section-212(1)(a), the owner of the building is required to show cause within the stipulated period of time why such building or any part thereof, shall not be pulled down or the land acquired by the Commissioner. Section-212(1)(b) requires the owner to be called upon on a particular date at a time and place indicated to attend personally or by an agent duly authorized by him in that behalf to show cause in this regard. As per sub-section(2) of Section-212, if such owner fails to show sufficient cause to the satisfaction of the Commissioner why such building or any part thereof, which is within the regular line of the street, shall not be pulled down and the land within the said line acquired, the Commissioner may, with the approval of the Standing Committee, require the owner by a written notice to pull down the building. That though the section envisages an opportunity to show cause, it does not provide for a situation where the petitioner or owner of the building has shown sufficient cause. In case the Commissioner is of the view that the petitioner has shown sufficient cause, there is no bar in the said section to call the petitioner for personal hearing as in a case such as the present one, when the petitioner has submitted valid objections, mere paper hearing is not sufficient and an opportunity of personal hearing must be given.
(iv) That this Court in Killol V. Shelat Vs. Municipal Corporation of City of Ahmedabad and another reported in (2009) 1 GLH 13 has stated that though the right to property may not be a fundamental right, it continues to be a constitutional right, which has now been recognized as a human right. A citizen cannot be deprived of this human right without, at least, a minimum right of hearing. In a given case a citizen may be able to point out to the authority that the proposed prescription of the street line is either arbitrary or unjust or wholly malafide.
(v) That in view of the principle laid down by the Division Bench in the above-quoted judgment, the Commissioner ought to have afforded the petitioner an opportunity of personal hearing, on the facts and in the circumstances of the case, especially when the petitioner had specifically requested for personal hearing in the objections submitted by him.
(vi) That the objections of the petitioner have been summarily rejected by a one-line order, stating that they are not satisfactory and baseless, without giving a single cogent reason in support of the rejection. Such summary dismissal of objections, without valid or cogent reasons militates against the principles of natural justice and fairness in action.
Issue Notice returnable on 22.03.2012.
Ad-interim relief in terms of paragraph-8(B) is granted, till then.
In addition to the normal mode of service, Direct Service is also permitted.
(Smt. Abhilasha Kumari, J.) ~gaurav~