Gujarat High Court
Ferry Faramji Navroji & 3 vs State Of Gujarat & 2 on 28 September, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/15224/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15224 of 2015
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FERRY FARAMJI NAVROJI & 3....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ASIT B JOSHI, ADVOCATE for Petitioner(s) No.14
MR AMIT BAROT,AGP for Respondent No.1 on advance copy
MR DHAVAL G NANAVATI, for Respondent Nos.23
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 28/09/2015
ORAL ORDER
(1) Heard learned counsel for the respective parties.
(2) By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned notices / order dtd. 01.05.2015 and 19.05.2015 issued by respondent No.3 (Annexed at Annexure 'A' colly) as being illegal, arbitrary, unjustified, in breach of principles of natural justice, violative of Art. 14, 19 of of the Constitution of India and also bad in law;
(B) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned notices / order dated 01.05.2015 and 19.05.2015 issued by respondent No.3 (annexed at Annexure "A" colly to the petition) and further be pleased to direct the respondents to maintain statusquo qua the subject land being O P No.87 (FP No.110, 111, 112, 113) and FP No.136 common open plot of the society, pending the admission, hearing and final disposal of this petition;
(C) YOUR LORDSHIPS be pleased to direct the respondent authorities to consider various representations / objections submitted by the petitioner along with all documentary evidences, after affording reasonable opportunity of hearing, within such stipulated time as may be deemed fit by this Hon'ble Court in the interest of justice and equity;
(D) YOUR LORDSHIPS be pleased to pass such other and further order as the nature and circumstances of the case may be required, in the interest of justice;"Page 1 of 4
HC-NIC Page 1 of 4 Created On Tue Sep 29 02:06:57 IST 2015 C/SCA/15224/2015 ORDER (3) Predominantly in the present petition the challenge is to the notices dated 01.05.2015 and 19.05.2015 issued by the respondent No.3Executive Engineer, North Zone (Katargam) Surat Municipal Corporation as provided under Section 67 of the Gujarat Town Planning & Urban Development Act, 1976, (the Act). Said notice dated 01.05.2015 clearly indicates that the State Government has sanctioned Draft Town Planning Scheme No.35 (Katargam), City Surat, under Section 48(2) of the Act as the land in question belonging to the petitioners is forming part of the T.P. Road the said notices are given.
(4) It goes without saying that even while implementing the said notices the respondent authority, as an appropriate authority, is required to follow the procedure as prescribed under the Act and the Gujarat Town Planning & Urban Development Rules, 1979 (the Rules). As provided under Section 48A of the Act itself the provisions of Section 68 of the Act and Rule 33 of the Rules would mutatis Page 2 of 4 HC-NIC Page 2 of 4 Created On Tue Sep 29 02:06:57 IST 2015 C/SCA/15224/2015 ORDER mutandis apply to the impugned notices at this stage. 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 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 quasijudicial 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 622 eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, nongermane, 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."
(5) 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 Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Sep 29 02:06:57 IST 2015 C/SCA/15224/2015 ORDER all contentions which are raised in this petition by filing an appropriate reply latest by 05.10.2015. As the scheme is at the draft scheme level and Town Planning Officer is yet to consider the scheme as provided under Section 52 of the Act, it would also be open to the petitioners to approach Town Planning Officer. It is further clarified that this Court has not expressed any opinion on merits of the matter.
(6) Petition is therefore not entertained at this stage. Disposed of accordingly Direct service permitted. No costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Sep 29 02:06:57 IST 2015