Gujarat High Court
Vishnubhai Ranchhodbhai Patel vs State Of Gujarat on 7 December, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/AO/85/2021 ORDER DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 85 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 85 of 2021
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VISHNUBHAI RANCHHODBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR KV SHELAT(834) for the Appellant(s) No. 1,2,3,4
MR. SHYAM K SHELAT(6552) for the Appellant(s) No. 1,2,3,4
MS. VRUNDA C SHAH(6702) for the Respondent(s) No. 3
MR. BHARGAV PANDYA, AGP for the Respondent(s) No. 1,2
NOTICE UNSERVED(8) for the Respondent(s) No. 5,6
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/12/2021
ORAL ORDER
1. This appeal under Order-43 Rule-1 of the Code of Civil Procedure, 1908 is preferred by the appellants herein being aggrieved and dissatisfied with the order passed below Notice of Motion at Exh.6/7 in Civil Suit No. 2840 of 2015 dated 15.07.2021.
2. The short facts of the case as per the appellants say are such that, the appellants / plaintiffs are the owners / occupiers of the properties situated at Rajiv Park Society, Opp. Maniba School, Thakkarnagar at Survey No. 1049 paiki of draft Town Planning Scheme No. 65 Saijpur Bogha, South East, Ahmedabad (suit properties) consisting of residential and commercial use properties. The subject properties are sought to be adversely affected and Page 1 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 proposed to be demolished for the purported road widening of 9 meter T.P. Road, in relation to the challenge to Draft T.P. Scheme No. 65, Saijpur Bogha, South East, right from declaration of intention u/s. 40, 41 of the GTP Act. As per the say of the appellants, the authorities have violated the relevant rules of the GTP Act and Rules.
3. The appellants filed Civil Suit No. 2840 of 2015 before the City Civil Court, Ahmedabad seeking the following reliefs:
"(A). The Hon'ble Court be pleased to declare that the draft T.P. Scheme No. 47 Saijpur Bogha (South East) in relation to the plaintiff's properties and their proprietary interest is illegal and de hors the provisions of Gujarat Town Planning Act and Rules, nullity and suffers from being malafide and from non observance of mandatory procedure, non service of individual notice to the owners and occupiers and also not giving opportunity of hearing to the plaintiffs and result of Non application of mind, be declared as not executable or capable of implementation so far as the plaintiff's properties are concern.
(B). The Hon'ble Court be pleased to declare Notices dated 15.07.2015 purported to have been issued under Section 48(a) and Section 68, Rule 33 of GTP Act as illegal, arbitrary, violative of constitution rights against principle of natural justice and nullity and the defendant authorities be directed to modify, and / or re align the T.P. Road and the entry point of such T.P. Road as directed by the State Govt. vide its order dated 02.09.2015, and for incidental prayers including injunction orders.
(C). The Hon'ble Court be further pleased to declare orders dated 02.09.2015 24.09.2015 (incorrectly mentioned by Dy. Estate Officer, North Zone, as 24.09.2014) in furtherance to notices dated 15.07.2015 purported to have been issued under Section 48(a) and Section 68, Rule 33 of GTP Act, as illegal, arbitrary, violative of constitution rights against principles of Page 2 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 natural justice and nullity and the defendant authorities be directed to modify, and / or re align the T.P. Road and the entry point of such T.P. Road as directed by the State Government vide its order dated 02.09.2015, and for incidental prayers including injunction orders.
(D). The Hon'ble Court be further pleased to pass permanent injunction directing the Ahmedabad Municipal Corporation, its officers, agents from implementing orders dated 02.09.2015 24.09.2015 (incorrectly mentioned by Dy. Estate Officer, North Zone, as 24.09.2014) in furtherance to notices dated 15.07.2015 purported to have been issued issued under Section 48(a) and Section 68, Rule 33 of GTP Act and / or any consequential action in furtherance to alleged draft town planning scheme no. 65 South East, Saijpur Bogha, vis-a-vis the plaintiffs properties / suit properties."
4. The appellants also filed Exh.6/7 application-notion of motion, seeking following reliefs:
"(A). The Hon'ble Court be pleased to restrain the defendant corporation from taking any action in furtherance to the notices purporting to be u/s. 68, Rule 33, 48A of the Gujarat Town Planning Act and Rules dated 15.07.2015 and communications dated 02.09.2015, 24.09.2015 from defendant corporation purporting to be final orders in relation to the Draft T.P. Scheme No. 65 Saijpur Bogha, in so far as it concerns the suit property in plaintiffs occupation, till the final disposal of the suit.
(B). Pending hearing and final disposal of the present application the Hon'ble Court be pleased to grant interim relief in terms of Para 10(A), and direct the defendants, their servants, their agents, etc. to maintain status quo with regard to taking any action in furtherance to the purported notices u/s. 68, Rule 33 of the Gujarat Town Planning Act dated 15.07.2015 and communications dated 02.09.2015, 24.09.2015 from defendant corporation purporting to be final orders in relation to the Draft T.P. Scheme Page 3 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 No. 65 Saijpur Bogha, in so far as it concerns the suit property in plaintiffs occupation, till the final disposal of the suit.
(C). The Hon'ble Court be pleased to direct the defendant corporation to maintain status quo vis-a-vis the plaintiffs- suit properties in relation to draft town planning scheme no. 65 saijpur Bogha, pending the hearing and disposal of the interim injunction application, in the interest."
5. The Court below passed an order on 02.12.2015 under Notice of Motion Application. The operative part of the order reads thus:
"(1). Defendant No.3 is directed to maintain status-
quo till 11.12.2015.
(2). Show cause notice be issued against all the defendants on payment of P.F. returnable on 11.12.2015.
(3). Plaintiff to comply provisions of Order 39 Rule 3(A) B CPC.
(4). Status-quo order be served against defendant No.3."
6. The Court below by an order dated 15.07.2015 passed the following order below Notice of Motion at Exh.6/7. The operative part of the order reads thus:
"The present Notice of Motion Application Exhibit 6/7 is hereby rejected.
No order as to costs."Page 4 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022
C/AO/85/2021 ORDER DATED: 07/12/2021
7. Mr. K.V. Shelat, the learned counsel appearing for the appellants has drawn attention of this Court to the applications dated 14.07.2021 and 15.07.2021, wherein, the learned advocate appearing for the appellants / plaintiffs has prayed for time before the Court below due to health issue of advocate appearing for the appellants/ plaintiffs.
8. By both the applications, as referred above, the learned advocate appearing for the appellants / plaintiffs requested for accommodation, since the advocate for the plaintiffs was suffering from fever and weakness. In spite of such applications filed by the learned advocate appearing for the plaintiffs, the Court below by an order dated 15.07.2021, heard the Notice of Motion and ultimately came to be rejected finally by the Court below. The operative para- 5 of the order dated 15.07.2021 passed by the Court below in Exh.6/7 reads thus:
"5. Now considering the rival submissions of parties and pleadings, it is very crystal clear that the plaintiffs have prayed to modify the T:P Scheme but this court is of the opinion that suit filed for challenging the T.P. Scheme is not maintainable and if the court may grant an injunction in such cases, then no authority will be able to work for public at large. So far as the injunction is concerned, the relief sought for is under law of equity and at the time of granting injunction, the court has to find out whether prima facie case is made out, balance of convenience is in favour of the plaintiffs and irreparable loss would be caused to the Plaintiffs. All these three criteria are required to be considered by the Court. But the case on hand, the plaintiffs came before the court with a Page 5 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 prayer to modify the T.P. Scheme and hence, I am of the firm opinion that so far as T.P. Scheme is concerned, no injunction can be granted to restrain the execution of work which is to be done for public at large and the defendants are doing their duties according to the provisions of law. At this stage, this Court is also placed reliance upon the case decided in Wnt Petition No.111/2013 and other 10 allied matters filed in the case of Vadodara District Khedut Mandal through its President Vs. Vadodara Municipal Corporation, wherein Hon'ble High Court dismissed the injunction of the plaintiff. So, neither the case of the plaintiffs is fall within the prima facie case, even balance of convenience is also not in favour of the plaintiffs and no irreparable loss would be caused to the plaintiffs...."
9. Being aggrieved by the order passed by the Court below dated 15.07.2021, the appellants are before this Court challenging the said order on the ground that the said order was passed in absence of the learned advocate appearing for the plaintiffs / appellants and the same is without hearing the learned advocate and in violation of the principles of natural justice. It was also submitted by the appellants that the rights of the appellants are adversely affected by the impugned order passed by the Court below and the said order having been passed ex-parte suffers from being unjust, arbitrary, perverse and de-hors the law as settled by the Hon'ble Apex Court. This Court examined the impugned order and the materials produced on record. In view of this Court, this appeal is liable to be allowed and the impugned order dated 15.07.2021 should also be set aside. It is an admitted position that the appellant prayed that the respondents be restrained from taking Page 6 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 any action in furtherance to the purported notices under Sections 68, 48A, Rule 33 of the Gujarat Town Planning Act dated 15.07.2015 and communications dated 02.09.2015 and 24.09.2015 from the respondent corporation purporting to be final orders in relation to the Draft T.P. Scheme No. 65 Saijpur Bogha, in so far as it concerns the suit property in occupation of the appellant - original plaintiff, till the final disposal of the suit. The dismissal of the present Appeal from Order has adversely affect the rights of the appellant- original plaintiff, in view of the fact that the final notice would affect the appellant adversely. The impugned order has resulted in vacation of the interim relief which was granted by the Court below in favour of the appellant by an order dated 02.12.2015. It was, therefore, incumbent for the Court below to hear the appellant, the appellant was required to be heard and given an opportunity to content his case. Admittedly, the order passed by the Court below is in violation of the principles of natural justice.
10. Mr. Maulin Raval, the learned Senior Counsel assisted by Ms. Vrunda C. Shah, the learned counsel appearing for the respondent No.3 - Ahmedabad Municipal Corporation would submit that the order passed by the Court below was just and proper, and therefore, no interference is required by this Court.
11. Heard the learned counsel appearing for the respective parties.
12. It is the first principle of jurisprudence that before any order is passed against any person, reasonable opportunity of bearing heard must be given. The principle of Audi alteram partem, Page 7 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 the basic concept of the principles of natural justice is well-known. Audi alteram partem means to hear the otherside or no man should be condemned unheard or both the sides must be heard before passing any order.
13. The Hon'ble Apex Court in the case of Rampal v. State of Haryana reported in AIR 2009 SC 3207, in para-6 reads thus:
"6. We have heard the learned counsel for the parties and examined the impugned order and other materials on record. In our view, the appeal is liable to be allowed and the impugned order should also be set aside on a very short point. It is an admitted position that before cancellation of the caste certificate of the appellant, the authorities ought to have given an opportunity of hearing to the appellant and also to contend that the Certificate issued to him was a "Scheduled Caste Certificate" and, therefore, it cannot be quashed. In view of the fact that the principles of natural justice was admittedly violated in this case, the impugned order must be set aside and the concerned Tehsildar must be directed to decide the dispute regarding the caste certificate of the appellant after giving hearing to the parties and after passing a reasoned order, preferably within three months from the date of supply of a copy of this order to him."
14. Without expressing anything on merits, in view of this Court the order passed by the Court below dated 15.07.2021 passed by the Court below in Exh.6/7 is without hearing both the sides. The learned advocate appearing for the appellants / plaintiffs had on 14.07.2021 and 15.07.2021 submitted the applications and requested for the adjournments. The Court below in spite of such request continued with the hearing of the application below Exh.6/7 and the applications came to be rejected. The order passed in the application below Exh.6/7 adversely affects the rights of the present appellants. In view of this Court, when there were an application Page 8 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022 C/AO/85/2021 ORDER DATED: 07/12/2021 seeking adjournments, the Court below ought to have considered such request seeking adjournment.
15. Under such circumstances, without expressing any opinion on merits, the order passed by the Court below dated 15.07.2021 in Civil Suit No. 2840 of 2015 below Exh.6/7 cannot be sustained, and hence, the same is quashed and set aside. The Court below is directed to hear the application below Exh.6/7 after hearing both the sides as early as possible, preferably within a period of 8 weeks from the date of the receipt of the present order.
16. The order dated 02.12.2015 passed by the Court below shall continue till the Court below decides the application for notion of motion - below Exh.6/7.
17. With the above directions, the present Appeal from Order stands disposed of. Both the parties are directed to cooperate in the suit proceedings before the Court below. It is clarified that this Court has not examined the merits of the case.
18. In view of the order passed in Appeal from Order, the Civil Application, would not survive and the same is also disposed of, accordingly.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 9 of 9 Downloaded on : Wed Jan 12 07:56:09 IST 2022