Gujarat High Court
Pratimaben Harshadbhai Amin vs State Of Gujarat on 3 December, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/14748/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14748 of 2020
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PRATIMABEN HARSHADBHAI AMIN
Versus
STATE OF GUJARAT
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR. ADITYASINH JADEJA, AGP, for the Respondent(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 03/12/2020
ORAL ORDER
1. The petitioner Pratimaben Harshadbhai Amin through her Power of Attorney Holder Satyabhai Chetanhbhai Patel has filed the present petition under Article 226 of the Constitution of India challenging the legality and validity of the order dated 13.10.2020 passed by the respondent No. 4 (AnnexureA) under the provisions contained in Section 68 of the Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the said Act") read with Rule 33 of the Rules framed thereunder.
2. The short facts giving rise to the present petition are that petitioner claims to be the owner and occupier of the constructed property with an open plot bearing Survey No. 193 paiki situated on the Final Plot No. 3 of the Town Planning Scheme No. 6, Page 1 of 5 Downloaded on : Mon Aug 23 20:44:36 IST 2021 C/SCA/14748/2020 ORDER Ashoknagar Cooperative Housing Society Ltd., situated at Vejalpur Village, District Ahmedabad. As per the case of the petitioner, she has let out the said premises to one Red Brix Education Trust for operating the school. The petitioner was served with the notice under section 67 of the said Act on 20.01.2020 and thereafter the notice under section 68 Rule 33 on 28.01.2020. The petitioner and the said tenant Red Brix Education trust through one R.B.Panchal had made a representation before the respondent No. 4 in response to the said Notice under Section 68 Rule 33 and had sought further time for making written submissions. It appears that thereafter the said occupier Red Brix Education Trust also submitted written submissions, and considering the same, the respondent No. 4 passed the impugned order on 13.10.2020 which is under challenge.
3. The bone of contention raised by the learned advocate Mr. N.V. Gandhi for the petitioner is that the petitioner had sent the written submissions on 07.10.2020 which were received by the respondent No. 4 on 08.10.2020, however the said written submissions have not been taken into consideration by the respondent No. 4 before passing the impugned order, and Page 2 of 5 Downloaded on : Mon Aug 23 20:44:36 IST 2021 C/SCA/14748/2020 ORDER therefore the said order is in utter disregard to of the principles of natural justice and to the legal position settled by the Supreme Court in the case of M/s. Babubhai & Co. and Others Versus State of Gujarat and Others reported in AIR 1985 Supreme Court SC 613 as followed by this Court in number of cases.
4. There cannot be any disagreement to the ratio laid down by the Supreme Court in the case of M/s. Babubhai and Others (supra) relied upon by the learned Advocate appearing for the petitioner in which the Supreme Court while dealing with the validity of the Section 54 of the Old Bombay Town Planning Act, 1955 had held inter alia that the quasi judicial authorities exercising the powers under the said Act, are required to observe the principles of natural justice and pass speaking order.
5. However, so far as the facts of the present case are concerned, it clearly transpires that that the petitioner and the occupier - lessee Red Brix Education Trust were served with the Notice under section 68 Rule 33 of the said Act, for affording them the opportunity of hearing, and the said opportunity of hearing was also infact availed by the petitioner and her tenant. Page 3 of 5 Downloaded on : Mon Aug 23 20:44:36 IST 2021 C/SCA/14748/2020 ORDER The written submissions made on behalf of the said tenant have also been taken into consideration by the respondent No. 4 while passing the impugned order and therefore, it could not be said that the petitioner or her tenant occupier was not granted reasonable opportunity of hearing. As held by the respondent No. 4 in the impugned order, the preliminary scheme was sanctioned by the Government under Section 65(1) of the said Act on 25.02.2019 and the original plots were reconstituted and the final plots were allotted to the concerned owners. As per the provisions contained in Section 67 of the said Act, the rights of the parties were made subject to the rights settled by the Town Planning Officer. It is also required to be noted that as per Section 65(3), on the preliminary scheme or the final scheme, as the case may be, having been sanctioned by the State Government, the same has the effect as if it were enacted in the Act. As per Section 68, when the preliminary scheme comes into force, any person continues to occupy any land which he is not entitled to occupy under the preliminary scheme is required to be summarily evicted by the respondent Authority, of course, after following the procedure as contemplated in Rule 33 of the said Rules. The said procedure having already been followed in the instant case by the respondent No. 4, the Court is of the Page 4 of 5 Downloaded on : Mon Aug 23 20:44:36 IST 2021 C/SCA/14748/2020 ORDER opinion that there was no violation of principles of natural justice or any provisions of the Act at the instance of the respondent No. 4 before passing the impugned order.
6. In that view of the matter, the petition being devoid of merits, is dismissed.
(BELA M. TRIVEDI, J) bdsongara / SINDHU Page 5 of 5 Downloaded on : Mon Aug 23 20:44:36 IST 2021