Surat vs Lalsaheb on 26 December, 2011

[Cites 17, Cited by 0]

Gujarat High Court

Surat vs Lalsaheb on 26 December, 2011

Mr.Jal Soli Unwala, learned advocate waives service of notice of Rule for respondents Nos.1(original petitioners), in each application. Ms.Nisha M. Thakore, learned Assistant Government Pleader waives service of notice of Rule for respondents Nos.2 and 3, in each application. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the applications are being heard and finally decided, today.

2. Both these applications under Article-226(3) of the Constitution of India, have been filed for vacation of the ad-interim relief granted by this Court vide two separate orders dated 26.12.2011 passed in both the above-mentioned petitions.

3. The applicant of both the applications is the Surat Municipal Corporation, who is the original respondent No.2 in the petitions. As both the applications are filed for vacation of the ad-interim relief, granted by orders dated 26.12.2011 of this Court, and as the issues involved in the applications are the same, they are being heard and decided by a common order.

4. The respondents Nos.1 in the applications have preferred the above-mentioned petitions, inter-alia, praying for the issuance of an appropriate writ, order or direction, directing the applicant (original respondent No.2) not to demolish the building in which the respondents-original petitioners are residing.

5. For the sake of convenience, the facts pertaining to respondent No.1-original petitioner of Special Civil Application No.18667/2011, are being noticed. Respondent No.1 has stated in the petition that he is residing at the address mentioned in the cause-title, since the last 40 years. It is his case that the Surat Municipal Corporation (applicant herein) is seeking to demolish the premises in which he is residing with his family necessitating the filing of the petition. That, the premises were originally owned by Trikamnagar Co-operative Housing Society Limited, as per the Property Card. Respondent No.1 is running a Flour Mill on the Ground Floor of the premises, and is residing on the First Floor. It is stated that his only source of income is derived from the Flour Mill. It is the case of Respondents Nos.1 (original petitioners), that they have not been served with any notice and neither has an opportunity of hearing been afforded to them by the Surat Municipal Corporation, before deciding to demolish the construction in question.

6. After hearing the original petitioners, this Court, by two separate orders dated 26.12.2011, issued notices returnable on 12.01.2012, and granted ad-interim relief to the effect that the respondents in the petitions, particularly respondent No.2 (present applicant), be prevented from demolishing the above-mentioned construction.

7. Aggrieved by the above-mentioned orders of this Court, the applicant-original respondent No.2, has approached this Court by filing the present applications.

8. Mr.Prashant Desai, learned Senior Advocate with Mr.Kaushal D.Pandya, learned advocate has appeared on behalf of the applicant. It is submitted that the disputed premises of the respondents-original petitioners have been included in the Town Planning Scheme No.8 (Umarwada), which has come into force with effect from 17.02.1987. Under the final Scheme, the original plots have been surrendered by the owners and final plots have been alloted to them. It is submitted that most of the land from original plot No.8-B is covered under the road, and some part is covered in the reconstitution of Final Plot No.6, that is reserved for the public purpose of a Secondary School and Playground. That, the disputed premises are situated on the land that is now under part of Final Plot No.6, that is reserved for the Secondary School and Playground. The learned Senior Advocate has further contended that since the Town Planning Scheme has become final, the applicant - Corporation is bound to issue notice under Sections-67 and 68 of the Gujarat Town Planning and Urban Development Act, 1976 ("the Act", for short) read with Rule-33 of the Gujarat Town Planning and Urban Development Rules, 1979 ("the Rules", for short). It is further contended that the submission made by the respondents-original petitioners to the effect that no notices were served upon them is not correct, and notices have been issued on 10.08.1987 and 06.05.1989, under Sections-67 and 68 of the Act, upon the original owner of the land, Trikamnagar Co-operative Housing Society Limited. That the construction put up by the respondents-original petitioners is illegal and without permission, on land reserved for a public purpose. The Scheme, having now attained finality, has become part of the Act. As per Sub-Section:3 of Section-65 and the applicant-Corporation is duty-bound to implement the same. The learned Senior Advocate further submits that the respondents-original petitioners did not raise objections at the appropriate stage, therefore, they have now waived their rights to do so, and cannot contend that they have not been heard, after finalization of the Scheme. It is further urged on behalf of the applicants that no time limit is prescribed for implementation of the Scheme and the possession of the property can be taken over at any point of time. It is submitted that there is no material on record to show that the respondents-original petitioners are tenants of the original owners. Even assuming that is so, the tenants can only enforce their rights against the landlord and the applicant - Corporation is not bound to issue notices to them as statutory notices have already been issued to the original owner. Lastly, it is contended that if the petitioners are aggrieved by non-issuance of notices, the applicant-Corporation is prepared to serve them with seven days' notice and pass the final order after hearing them. It is urged that the orders of this Court whereby ad-interim relief has been granted may be modified to this extent. That the applicant-Corporation has already offered alternative residential accommodation to the respondents, which offer can be availed by them. Lastly, it is submitted that on the facts of the case, no case is made out for grant of ad-interim relief in favour of the respondents, which may be vacated.

9. In support of the above submissions, reliance has been placed upon the following judgments :

(1)

The Municipal Corporation for Greater Bombay and Another Vs. The Advance Builders (India) Private Limited and others reported in AIR 1972 Supreme Court 793.

(2) Kashiben Wd/o. Pitamber Devchand and another Vs. State of Gujarat and another reported in (1989) 2 GLR 1176.

(3) Babulal Badriprasad Varma Vs. Surat Municipal Corporation and others reported in (2008) 12 SCC 401.

(4) N.Nanalal Kiklawala and another Vs. State of Gujarat and others reported in (2005) 12 SCC 649.

10. Opposing the applications, and supporting the orders dated 26.12.2011 of this Court, Mr.Jal S. Unwala, learned advocate for respondents No.1-original petitioners, in each application, has submitted that notices have been issued by the applicant-Corporation on 10.08.1987 and 06.05.1989 to Trikamnagar Co-operative Housing Society Limited, and not to the respondents, who are actually occupying the premises. The said notices have been issued under Sections-67 and 68 of the Act, respectively. It is submitted that the procedure for issuance of notice under Section-68 of the Act is laid down in Rule-33 of the Rules, wherein it is clearly stipulated in mandatory language, that the appropriate authority shall, in the first instance, serve a notice upon the person to be evicted. Laying emphasis on the word 'shall' and 'person to be evicted', it is submitted by Mr.Jal S. Unwala, that the persons to be evicted would be the actual occupants, namely the present respondents and not necessarily the original owners. However, the applicant - Corporation has not served any notice to the respondents-original petitioners, who are the actual occupants of the premises, therefore, the action taken by them is not only in violation of the mandatory provisions of Rule-33, but is also violative of the principles of natural justice. It is further contended that the Town Planning Scheme has been finalized as far back as in the year 1987, and no action has been taken by the applicant-Corporation for about 25 years, till the filing of the petition. Only after the petitions were filed, the applicant approached this Court with a plea that it is bound to implement the Town Planning Scheme. Having remained silent for about 25 years, it is not known what urgency has suddenly arisen for the applicant to file the applications for vacation of stay. That, the premises of the respondents-original petitioners are not coming in the way of the applicant- Corporation for implementation of the Town Planning Scheme, and the Plot that has been reserved for the Secondary School and Playground is still lying vacant. That, no hardship would be caused to the applicant - Corporation, if the said ad-interim relief granted by this Court is continued till the final decision of the petition. However, the respondents-original petitioners would be seriously affected and prejudiced, if the ad-interim relief is vacated, as vacation of this relief would amount to rendering their petitions infructuous. Besides this, the respondents-original petitioners would be rendered shelterless, and in the case of one of them, who is running a Flour Mill, his business would be adversely affected. It is vehemently contended that the respondents-original petitioners are living in the disputed premises with their families for years, and this Court would take into consideration their plight if the stay order is vacated, leading to demolition of the premises. Lastly, it is contended on behalf of the respondents-original petitioners that the applicant-Corporation is bound to follow the principles of natural justice even while initiating summary procedure for eviction, as held by this Court in the case of Keshavji Devji Patel through P.O.A. Mohanlal Keshavji and others Vs. State of Gujarat and others reported in 2007 (1) GLR 297.

10.1 On the strength of the above submissions, it is prayed by Mr.Jal S. Unwala, learned advocate for the respondents-original petitioners that the applications be rejected.

11. I have heard the leaned counsel for the respective parties at length, and perused the averments made in the applications and the material on record.

12. The ad-interim relief in favour of respondents Nos.1 has been granted by orders dated 26.12.2011. The present applications have been moved on 07.01.2012 and copies of the applications were served upon respondents No.1 on 11.01.2012, whereas the hearing of the applications has commenced on 12.01.2012 and has continued till today.

13. The main crux of the submissions advanced by the learned Senior Advocate for the applicants is that the applicant-Corporation is bound to implement the Town Planning Scheme that has come into force with effect from 17.02.1987, and as no period of time has been prescribed for such implementation, the same can be done at any point of time. It has further been submitted that notices under Sections-67 and 68 of the Act have been issued to Trikamnagar Co-operative Housing Society Limited, that was the owner of the land at the relevant point of time, and as the respondents-original petitioners did not raise any objection, they have waived their rights to object at this late stage. In the backdrop of the above submissions, the judgments relied upon by the learned Senior Advocate may be referred to.

14. In The Municipal Corporation for Greater Bombay and Another Vs. The Advance Builders (India) Private Limited and others (Supra.), the Supreme Court has held as under :

"(A) Municipalities

- Bombay Town Planning Act (27 of 1955), S.55 - Duty to frame and implement scheme is of the Corporation.

On a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially sections 53 to 55 of that Act it is clear that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. The responsibility for removing the huts, sheds, stables and other temporary structures which contravene the scheme is that of the Corporation and not of the owners of plots.

(Paras 12, 10)"

14.1 There cannot be any dispute with regard to the observations made by the Supreme Court, as quoted hereinabove. However, in the said judgment, the provisions of Rule-33 of the Rules did not arise for consideration, which form the crux of the submissions advanced by the learned counsel for Respondent Nos.1 (original petitioners), namely that before resorting to the procedure for eviction under Section-68 of the Act, notice should be served upon the person to be evicted. This judgment, therefore, would not come to aid of the applicants, on the facts and in the circumstances of the present case.

15. In Kashiben Wd/o. Pitamber Devchand and another Vs. State of Gujarat and another (Supra.), a Division Bench of this Court has held that once a final Scheme is prepared, it is deemed to be part of the Act and the owner loses all the rights over the land and is liable to be evicted, as he has no locus standi to file a petition.

15.1 From the facts of that case, it appears that notice was issued to the person to be evicted. The principles of law laid down in the above-mentioned judgment are not disputed. However, the judgment may not be relevant on the facts and in the circumstances of the present case, where the provisions of Rule-33 are at issue, especially at this stage when the applications for vacation of ad-interim relief are being heard.

16. In Babulal Badriprasad Varma Vs. Surat Municipal Corporation and others (Supra.), it appears that public notice was issued before the proceedings were initiated for the purpose of re-allotment of land. In that background of the facts of that case, the Supreme Court held that a person interested in continuing to keep possession over a property and/or a part of the amount of compensation, must lay his claim before the appropriate authority at the appropriate stage. The Supreme Court has held that it was obligatory for the appellant to take part in the proceedings and as he did not do so, he has lost his right to enforce the same in a public law Forum. In the present case, the record indicates that notices have been issued to the original owner of the land and not to the respondents-original petitioners, whose case is that they are the actual occupiers of the premises, dehors the procedure envisaged in Rule-33, for eviction under Section-68 of the Act. The principles of law enunciated in the above-mentioned judgment would, therefore, not be of much relevance in deciding the present applications.

17. The last judgment relied upon by the learned Senior Advocate for the applicants is N.Nanalal Kiklawala and another Vs. State of Gujarat and others (Supra.). Having gone through the same, it is not clear to this Court how the said judgment would be applicable to the facts of the present case, as the factual matrix of that case is on a totally different footing than that obtaining in the present case. No clarification has been made by the learned Senior Counsel in this regard.

18. Insofar as the submission regarding vacation/ modification of the orders dated 26.12.2011 passed in the petitions is concerned, it is relevant to note that the main thrust of the submissions advanced by the respondents-original petitioners is that they have not been served with notices, or granted an opportunity of hearing. Further, their request for supplying the grounds for demolition of the premises have not to be acceded to, by the applicant. It is not in dispute that notices under Sections-67 and 68 of the Act, dated 10.08.1987 and 06.05.1989 have been issued to Trikamnagar Co-operative Housing Society Limited that was the original owner of the land. Thereafter, no action has been taken by the applicant - Corporation for demolition of the construction for almost 25 long years. Section-67 of the Act deals with the effect of the preliminary scheme and stipulates that on the date on which the preliminary scheme comes into force all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority, free from all encumbrances. Further, all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer.

19. Section-68 of the Act is relevant and deals with the power of appropriate authority to evict summarily. The said section is reproduced hereinbelow :

68.

Power of appropriate authority to evict summarily. On and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall,in accordance with the prescribed procedure, be summarily evicted by the appropriate authority.

20. Rule-33 is of some importance, and reads thus :

"33.

Procedure for eviction under Section 68 -

(1) For eviction under section 68, the appropriate authority shall follow the following procedure, viz :

(a) The appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him, within such reasonable time as may be specified in the notice, to vacate the land.

(b) If the person to be evicted fails to comply with the requirement of the notice, the the appropriate authority shall depute any Officer or Servant to remove him.

(c) If the person to be evicted resists or obstructs the officer or Servant deputed under clause (b) or if he re-occupies the land after eviction, the appropriate authority shall prosecute him under section 188 of the Indian Penal Code."

21. It is submitted by Mr.Jal S. Unwala, learned advocate for the respondents Nos.1-original petitioners that the language of Rule-33 is mandatory as the word 'shall' has been used and the appropriate authority is bound to follow the procedure as delineated in Rule-33(a) to (c). A perusal of Rule-33 makes it clear that the appropriate authority 'shall' serve a notice 'upon a person to be evicted'. It may also be helpful to refer to Rule-34 of the Rules, which reads as below:

"34. Notice before Enforcement of Scheme - Before removing pulling down or altering any building or other work, under sub-section (1) of section 69, the appropriate authority shall serve a notice on the owner or occupier of the building or work, as the case may be, calling upon him to remove, pull down or alter such building or work or execute such work within such reasonable time as may be specified in the notice intimating him the intention of the appropriate authority to do so on failure to comply with the requirement of the notice. Such notice shall as far as may be, in Form L."

21.1 The language of this rule is to the effect that the appropriate authority shall serve a notice on the owner or occupier of the building or work before enforcement of the Scheme. A combined reading of Rule-33 and 34 suggests that notices are to be issued either on the owner or on the occupier. As per the clear language employed in Rule-33 wherein the procedure for eviction under Section-68 is laid down, it is stated that notice to be served upon a person to be evicted. In the present case, the persons to be evicted would be the respondents Nos.1 (original petitioners).

22. At this stage, no final conclusion can be arrived at regarding whether notice under Rule-33 to the person to be evicted is mandatory or not. This aspect can be gone into at the time of final decision of the petition.

23. Mr.Jal S. Unwala, learned advocate for the respondents-original petitioners has relied upon the judgment in case of Keshavji Devji Patel through P.O.A. Mohanlal Keshavji and others Vs. State of Gujarat and others (Supra.), wherein this Court has held as below:

"8. As per the provisions of the Act, finalization of the Scheme by the T.P. Officer and its subsequent sanction by the Government stands on one part and the enforcement of the Scheme by the enforcing agency, rather the Corporation in the present case or local authority, is another part. Even if the matter is considered on the basis that while exercising power under Section 52 of the Act, the T.P. Officer is not required to serve individual notice, and a common notice is sufficient, then also the matter would not end there. Even after the decision of the T.P. Officer and finalization of the Scheme, the next stage would be the enforcement of the Scheme by the appropriate authority as per the provisions of Section 68 read with Section 69 of the Act. Section 68 of the Act provides for exercise of the power by the appropriate authority for summary eviction in accordance with the prescribed procedure. Section 69 of the Act provides for enforcement of the Scheme by the appropriate authority after giving prescribed notice and in accordance with the provisions of the Scheme. Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules") provides for procedure for eviction under Section 68 and Rule 34 provides for the notice before enforcement of the Scheme. It is true that while exercising the power under Section 68 read with Section 69 read with relevant Rule 33 or 34 of the Rules, the appropriate authority or rather enforcing agency may not be in a position to go beyond the Scheme, nor can examine the aspects regarding legality and validity of the Scheme, which is sanctioned by the Government, but even for enforcement of the Scheme, the appropriate authority may be required to examine as to whether the person in occupation is really or genuinely occupying the land in contravention to the Scheme. The same would be the overall aspects to be examined while exercising power under Section 68 of the Act. For pulling down of any construction same situation may prevail, but the exercise of power under Section 69 of the Act by the enforcing agency/appropriate authority shall be subject to the provisions of Sub-section 3 of Section 69 of the Act, which provides for reference of the matter to the State Government and the finality of the decision of the State Government. But in both the cases for exercising power under Section 68 or 69 of the Act, it is not possible to accept the contention of Mr.Nanavati that no principles of natural justice are required to be followed by the appropriate authority while enforcing the Scheme. In my view, the position of law is settled by the Apex Court in its decision in case of M/s.Babubhai and Company (supra). In the decision of the Apex Court in case of Babubhai and Company (Supra) at para 8, it was inter alia observed by the Apex Court as under:

"8.

In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by S. 54 it will appear clear that the topic of making of town planning schemes is dealt with in Ss. 21 to 53 while S. 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 itself - a 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)."

10. Therefore, the powers of the local authority are held as that of quasi-judicial powers and while exercise of such powers the Apex Court has read the implied application of principles of natural justice. Even in the subsequent decision of the Apex Court in case of "Municipal Corporation" (Supra) the earlier view is reaffirmed.

Therefore, Mr.Shah, learned Counsel is right in submitting that the principles of natural justice are applicable while exercise of the power under Section 68 read with Section 69 of the Act."

23.1 This judgment has been rendered specifically in the context of Sections-68 and 69 of the Act read with Rule-33 of the Rules. As has been held by this Court, the principles of natural justice are required to be observed while exercising power under Section-68, read with Section-69 of the Act. The principles of law laid down in the above-mentioned judgment would apply to the facts of the case put up by the respondents Nos.1/original petitioners, and would reinforce the view of this Court, that ad-interim relief deserves to be granted, pending the final decision of the petition.

24. There is another aspect to the matter that cannot be ignored. If the ad-interim relief granted by this Court is vacated, it would amount to rendering the petitions infructuous. The applicant-Corporation would then demolish the construction where the respondents- original petitioners are residing, rendering them shelterless even before the Court has adjudicated upon the factual and legal aspects arising in the petitions. Modification of the orders dated 26.12.2011 would result in an almost similar situation. When the Court is seized of the matter, and certain relevant aspects are in issue regarding issuance of notice before eviction and the effect of non-issuance thereof, and as the Court has granted ad-interim relief on the submissions advanced by the original petitioners that they were not served with notices or granted an opportunity of hearing, there is no justifiable reason for vacation/modification of the ad-interim relief already granted.

25. It cannot be ignored that the Town Planning Scheme has come into force on 17.02.1987. No action has been taken by the applicant-Corporation till now. Though Final Plot No.6 has been reserved for a Secondary School and Playground, admittedly, it is still lying vacant, even after a period of more than 25 years. There does not appear to be any urgency in the matter at this stage, to justify disturbance of the ad-interim relief.

26. For the aforestated reasons, the orders dated 26.12.2011 of this Court passed in Special Civil Application No.18667/2011 and Special Civil Application No.18669/2011, do not merit interference. The ad-interim relief granted vide the above orders stands confirmed, and shall operate as interim relief, till the final decision of the petition.

It is clarified that the observations made in this order are prima-facie in nature. The rights and contentions of the parties remain open.

Accordingly, the applications are rejected. Rule is discharged, in each application.

The petitions may be listed for admission on 27.02.2012.

(Smt. Abhilasha Kumari, J.) ~gaurav~

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