Gujarat High Court
Mohmmad Nasir Abdulhai Khan vs State Of Gujarat & 3 on 26 November, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/17194/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17194 of 2014
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MOHMMAD NASIR ABDULHAI KHAN....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR RR MARSHALL, LEARNED SENIOR ADVOCATE FOR MR ARPIT A
KAPADIA, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 26/11/2014
ORAL ORDER
Leave to amend the prayer clause so as to number the sub-paragraphs correctly, is granted. The necessary amendment be carried out, forthwith.
Heard Mr.R.R. Marshall, learned Senior Advocate with Mr.Arpit A. Kapadia, learned advocate for the petitioner.
It is submitted that the petitioner has purchased land bearing Revenue Survey No.174, Block No.165 Paiki of Vadakacha, admeasuring 516 Sq. meters, situated at Page 1 of 5 C/SCA/17194/2014 ORDER Mouje Sachin, by way of a registered Sale Deed dated 29.03.2008, from its original owner. On the basis of the registered Sale Deed, an entry has been mutated in the Revenue Record.
That respondent No.4- Gram Panchayat has granted development/ construction permission to the petitioner on 28.11.2010 in respect of the land in question. The said Panchayat has also sanctioned the Map submitted by the petitioner, by putting its seal upon it. Thereafter, the petitioner commenced the construction of an apartment building, consisting of five floor. The petitioner has been continuously paying the Gram Panchayat taxes, which are being accepted by respondent No.4- Gram Panchayat.
That the construction of the petitioner is almost over as 95% thereof has been completed.
A notice dated 23.06.2014, under Section 36(4) of the Gujarat Town Planning and Urban Development Act, 1979 ("the Act" for short), was issued by respondent No.2-Surat Urban Development Authority (SUDA) to one Maulin Chamadiya, who is working as a Page 2 of 5 C/SCA/17194/2014 ORDER watchman with the petitioner. A second notice dated 26.06.2014 was also issued to the same person. No notice was issued to the petitioner. However, for the first time, the petitioner received the impugned notice dated 18.11.2014, from SUDA in his own name, stating that the construction put up by him is without permission, therefore, the procedure to remove the same would commence on 26.11.2014.
It is further submitted that the petitioner has made an application to SUDA and submitted his plans in the month of August 2014. He has also paid the scrutiny fees, which have been accepted by SUDA. The said application is for permission to construct, but has not been decided so far, by SUDA. Without deciding the application of the petitioner and without following the procedure envisaged under Section 36 of the Act, the construction put up by the petitioner is sought to be demolished.
That the petitioner has good reason to believe that SUDA would start the demolition tomorrow.
Learned Senior Advocate further submits that no Page 3 of 5 C/SCA/17194/2014 ORDER illegality has been pointed out by SUDA. The petitioner has constructed the building after receiving the permission to do so from respondent No.4-Gram Panchayat. Two notices have been sent to the watchman of the petitioner, which cannot be termed as notices to the petitioner. Only the final notice has been addressed to the petitioner, therefore, it cannot be said that the petitioner has been granted a proper or adequate opportunity of hearing, or that any adjudication has taken place before the issuance of the impugned notice. Since the application made by the petitioner to SUDA is still pending, the said respondent could not have issued the impugned notice.
Having heard Mr.R.R. Marshall, learned Senior Advocate with Mr.Arpit A. Kapadia, learned advocate for the petitioner, the following order is passed:
Issue Notice and Notice as to interim relief, returnable on 16.12.2014.
Ad-interim relief in terms of paragraph-8(c) is granted, till then.Page 4 of 5 C/SCA/17194/2014 ORDER
In addition to the normal mode of service, Direct Service, today, is also permitted.
(SMT. ABHILASHA KUMARI, J.) ARG Page 5 of 5