Gujarat High Court
Shardaben Prahaladji Thakor & 4 vs Ahmedabad Municipal Corporation & on 29 March, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/6468/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6468 of 2017
==========================================================
SHARDABEN PRAHALADJI THAKOR & 4....Petitioner(s)
Versus
AHMEDABAD MUNICIPAL CORPORATION & 1....Respondent(s)
==========================================================
Appearance:
MR MA PAREKH, ADVOCATE for the Petitioner(s) No. 1 - 5
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 29/03/2017
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order or direction, directing the respondents
- Corporation to implement the earlier order dated 21.09.2015 passed by this Court in Special Civil Application No.8999 of 2015.
2. It deserves to be noted that the very petitioners have challenged the notice issued under Section 68 of the Gujarat Town Planning and Urban Development Act (hereinafter referred to as "the Act" for short), 1976 read with Rule 33 of the Rules thereof along with other prayers in relation to Final Plot Nos.26 and 23 of Town Planning Scheme No.32 (Gota), Ahmedabad.
This Court has observed thus in the abovementioned matter :
"3. Having heard the learned counsel for the parties, it appears that predominantly the petitioners have challenged the impugned notice (at Annexure-A to the petition) issued by the respondent-Ahmedabad Municipal Corporation, implementing authority, under Section 68 of the Gujarat Town Planning & Page 1 of 3 HC-NIC Page 1 of 3 Created On Thu Mar 30 01:09:45 IST 2017 C/SCA/6468/2017 ORDER Urban Development Act, 1976 (the Act) read with Rule 33 of the Gujarat Town Planning & Urban Development Rules, 1979 (the Rules).
4. Impugned notice indicates that the said Town Planning Scheme No.32 (Gota), Ahmedabad, came to be sanctioned under the provisions of Section 65 of the Act vide notification dated 26.09.2013 and therefore respondent-AMC, as an appropriate authority, has rightly issued notice for implementation of the same. However, the fact remains that while implementing the said scheme the authorities are duty bound to implement the scheme only in accordance with law.
5. It goes without saying that even while implementing the said notice the respondent authorities, as an appropriate authority, is required to follow the procedure as prescribed under the Act and the Rules. 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 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). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi-judicial 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 Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu Mar 30 01:09:45 IST 2017 C/SCA/6468/2017 ORDER relevant material on the record 622 eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non-germane, 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.
6. In light of the aforesaid binding decision, the respondent authority 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 to the aforesaid impugned notice latest by 12.10.2015 and the respondent-AMC shall give an opportunity of being heard to the petitioners and thereafter pass a reasoned order, as per the ratio laid down by the Apex Court in the case of M/s. Babubhai and Company & Ors. (supra). It is further clarified that this Court has not expressed any opinion on merits.
7. Petition stands disposed of accordingly. NOTICE discharged. Interim relief stands vacated. No costs. Direct service permitted."
3. It goes without saying that the petitioners are entitled to hearing and the respondents- Corporation has to implement the aforementioned order. It is however made clear that if the petitioners have any right against respondent No.2, the petitioners have to resort their remedies available under the law. As far as respondent No.1 is concerned, the appropriate authority is hereby directed to implement the said order, as expeditiously as possible, preferably within a period of three months from the date of receipt of this order. It is also open for the petitioners to inform the said issue to respondent No.1.
With the above observations and directions, the petition stands disposed of.
Direct Service is permitted today.
(R.M.CHHAYA, J.) Suchit Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu Mar 30 01:09:45 IST 2017