Gujarat High Court
Govindbhai Mavjibhai Patel vs State Of Gujarat on 29 August, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/19319/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19319 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 19320 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 19321 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
GOVINDBHAI MAVJIBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SHAKTI S JADEJA(5491) for the PETITIONER(s) No. 1,2,3,4
MR. PERCY C. KAVINA, SENIOR ADVOCATE WITH MR SP
MAJMUDAR(3456) for the PETITIONER(s) No. 1,2,3,4
MR. TIRTHRAJ PANDYA, AGP (in SCA No. 19319 of 2017 and19321 of
2017), Ms. JYOTI BHATT, AGP (In SCA No. 19320 of 2017), for the
RESPONDENT(s) No. 1
MR. PRASHANT DESAI, SENIOR ADVOCATE WITH MR HS
MUNSHAW(495) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 29/08/2018
Page 1 of 8
C/SCA/19319/2017 JUDGMENT
COMMON ORAL JUDGMENT
1. With the consent of learned advocates for the parties, the petitions are decided finally at the admission stage.
2. In all the three petitions, challenge is in respect of the impugned notices dated 13.10.2017 issued by the respondent - SUDA under section 36(4) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the said Act'). Hence, with the consent of the learned advocates for the parties they were heard together and are being decided by this common order.
3. For the sake of convenience, the facts of Special Civil Application No. 19319 of 2017 are considered. The petitioner No. 1 - Govindbhai Mavjibhai Patel in the said petition, appears to have purchased the Sub-plot No. 4C Survey No. 57 situated at village Kumbhariya, Taluka Choryasi, from one Pramilaben Patel as per sale deed dated 04.02.2008. The said Pramilaben had purchased the said plot from the original owner Jadavben Prabhubhai and others original owners by executing the registered sale deed on 26.06.1995. The other three petitioners appears to have purchased their respective Sub-plots Nos. 4B, 4C and 4D from the said original owners by executing separate registered sale deeds on Page 2 of 8 C/SCA/19319/2017 JUDGMENT 26.06.1995. It further appears that the respondent SUDA had issued a notice dated 03.03.2017 (Annexure J-1) to the original owner Ishwarbhai Prabhubhai and others under Sub- sections (1) and (2) of Section 36 of the said Act, calling upon them to remain present before the authority on 15.03.2017 in respect of the alleged illegal construction found on Block No. 57 situated at village Kumbhariya, Taluka Choryasi. The respondent - SUDA undisputedly had not issued any such notices to the occupiers of the said alleged illegal constructions.
4. The respondent SUDA thereafter issued the impugned notices 13.10.2017 (Annexure 'J') to the said owners Ishwarbhai Prabhubhai and others as well as to the occupiers i.e. the present petitioners under section 36(4) of the said Act calling upon them to remove the alleged illegal construction found on the plot Nos. 1, 3, and 4 of Block No. 57 situated at Village Kumbhariya, stating inter alia that if they failed to remove, the respondent SUDA shall remove the same exercising the powers under section 36(5) of the said Act. It appears that on the same day i.e. on 13.10.2017, the respondent SUDA also issued notices (Annexure 'K') to the petitioners informing them that since the petitioners had failed to remove the illegal construction, though notices under section 36(4) were given to them, the officers of the respondent authority Page 3 of 8 C/SCA/19319/2017 JUDGMENT shall enter the premises for removing the illegal construction on 17.10.2017. Being aggrieved by the said notices, the present petitions have been filed.
5. Before adverting the submissions made by the learned advocates for the parties, it would be beneficial to reproduce the provisions contained in Section 36 of the said Act, which read as under : -
36. Power to require removal of unauthorized development or use - (1) Where any development has been carried out in any of the circumstances referred to in sub-section (1) of Section 35, or any use of land or building or work is continued so as to constitute an offence punishable under sub-
section (2) of that section, the appropriate authority may, subject to the provisions of this section and within three years of such development, or continuance of use so made, serve on the owner a notice requiring him, within such period, being not less than one month as may be specified therein, after the service of the notice, to take such steps as may be specified in the notice, -
(a) to restore the land or building toits condition existing before the said development took place, in cases specified in clause (a) or clause (c) of sub-
section(1) of Section 35;
(b) to secure compliance with the conditions or with the permission as modified as the case may be, in cases specified in clause (b) or clause (d) of sub-section (1) of Section 35;
(c) to discontinue such use of building or land or work:
Provided that where the notice requires the Page 4 of 8 C/SCA/19319/2017 JUDGMENT discontinuance of any use of land or building, the appropriate authority shall also serve a notice on the occupier.
(2) The steps that may be specified in the notice under sub-section (1) may include the following, namely :-
(a) the demolition or alternation of any building or work;
(b) the carrying out on land of any building or other operations.
(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply to the appropriate authority for withdrawal of the notice.
(4) If, after heaving the applicant, the appropriate authority directs that the notice shall be withdrawn as respects any of the matters specified therein in relation to any building, or work or land, the notice shall stand withdrawn to that extent and thereupon the owner shall be required to take steps specified in the notice under sub-section (1) as respects the other matters and as respects the building, work or the land with respect to which the notice may not have been withdrawn.
(5) If within the period specified in the notice under sub-section (1), or, as the case may be, within such period as may be prescribed, after disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the appropriate authority may,
(a) prosecute the owner for not complying with the notice and, where the notice requires the discontinuance of any use of land or building any other person also uses the land or building or causes or permits the land or building to be used in contravention of the notice; and
(b) where the notice requires the demolition or alternation of any building or work or the carrying out of any building or Page 5 of 8 C/SCA/19319/2017 JUDGMENT other operations, itself cause the restoration of the building to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the appropriate authority may consider necessary, including demolition or alternation of any building or work or carrying out of any building or other operations, and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.
(6) Any person prosecuted under clause (a) of sub-section (5) shall, on conviction, be punished with fine which may extend to [fifty thousand rupees], and in the case of a continuing offence, with a further fine which may extend to [one thousand rupees] for every day during which such offence continues after conviction for the first offence."
6. The bone of contention raised by learned Senior Advocate Mr. P.C. Kavina for the petitioners is that the respondent SUDA had not issued any notices as contemplated under sub- sections (1) and (2) of Section 36 of the said Act to the petitioners, who are the occupiers of the alleged illegal constructions and straightway the impugned notices under Section 36(4) of the said Act have been issued.
7. The learned Senior Advocate Mr. Prashant Desai for the respondent authority has not been able to show from the reply or from any document that any notice under section 36(1) and 36(2) was ever served upon any of the petitioners.
Page 6 of 8C/SCA/19319/2017 JUDGMENT Under the circumstances, the Court has no option but to come to an unresistable conclusion that the impugned notices issued under Section 36(4) are ex facie illegal and arbitrary.
8. It is also further pertinent to note that though the impugned notices under section 36(4) (Annexure 'J') were issued on 13.10.2017 calling upon the petitioners to remove the alleged illegal construction as mentioned therein, on the same day i.e. on 13.10.2017 the other notices (Annexure 'K') were issued to the petitioners stating inter alia that the petitioners had failed to remove the alleged illegal construction though notices under section 36(4) were served to them, and therefore, the officers of the respondent authorities shall enter upon the disputed plots to remove the said constructions. The said notices (Annexure 'K') therefore also are ex facie illegal, arbitrary and appear to have been issued without any application of mind.
9. In that view of the matter, without going further into the merits of the case, it is held that the impugned notices being ex facie illegal and arbitrary and having been issued without following the due process of law as contemplated under the provisions contained in section 36 of the said Act, they deserve to be quashed and set aside, and are hereby set aside.
Page 7 of 8C/SCA/19319/2017 JUDGMENT
10. All the petitions stand allowed accordingly. It is clarified that it will be open for the respondent authorities to take appropriate action for the alleged illegal constructions after following the due process of law as contemplated under the said Act.
Sd/-
(BELA M. TRIVEDI, J) AMAR SINGH Page 8 of 8