Gujarat High Court
Jayesh Venabhai Patel & vs State Of Gujarat & 3 on 5 May, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/9695/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9695 of 2017
With
SPECIAL CIVIL APPLICATION NO. 9696 of 2017
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JAYESH VENABHAI PATEL & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR SHAKTI S JADEJA, ADVOCATE for the Petitioner(s) No. 1 - 2
MS JYOTI BHATT, ASSISTANT GOVERNMENT PLEADER for the State
Government authorities
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 05/05/2017
COMMON ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the notice dated 24.4.2017 issued by Himmatnagar Nagarpalika as implementing authority under the provisions of Section 48A of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act") read with Section 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules").
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2. It is no doubt true that other prayers are also prayed for, but considering the ratio laid down by this Court in the case of Shilpa Park Cooperative Housing Society Ltd. v. Surat Urban Development Authority, 1996 (2) GLR 707, no individual notice is contemplated at the draft stage. However, it is provided that the provisions of Sections 67 and 68 of the Act shall mutatis mutandis apply to Section 48A of the Act as well and therefore, while implementing the scheme, every implementing authority has to implement the scheme in accordance with law.
3. At this juncture, it would be appropriate to note that as per the record, the impugned notice is served on 1.5.2017. It would also be appropriate to refer to the judgment of the Apex Court in the case of M/s. Babulal & Co. & Ors. Vs. State of Gujarat & Ors., reported in AIR 1985 SC 613, wherein the Apex Court has observed thus: "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 Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat May 06 01:22:06 IST 2017 C/SCA/9695/2017 ORDER 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 itselfa 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 relevant material on the record eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, nongermane, irrelevant or malafide 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."
4. In light of the aforesaid, the following directions are given: Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat May 06 01:22:06 IST 2017 C/SCA/9695/2017 ORDER [a] The petitioners are at liberty to file the reply on or before 12.5.2017.
[b] The revisional authority shall consider the reply and pass appropriate reasoned order and implement the notice only after following the process and keeping in mind the ratio laid down by the Apex Court in the case of M/s. Babulal & Co. & Ors. (supra). It would be open for the petitioners to take all contentions that may be available under the law.
5. Accordingly, the petition is disposed of.
Direct service is permitted.
(R.M.CHHAYA, J.) mrp Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat May 06 01:22:06 IST 2017