Gujarat High Court
Mohmmad Nasir Abdulhai Khan vs State Of Gujarat & 3 on 28 April, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
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 ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1
MS SHRUTI PATHAK AGP for the Respondent(s) No. 1 - 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 28/04/2015
ORAL ORDER
1. Heard Mr. Marshall, learned Senior Counsel with Mr. Kapadia, learned advocate for the petitioner and Mr. Munshaw, learned advocate for the respondent No.2 - Surat Urban Development Authority ('SUDA' for short).
2. In present petition petitioner has prayed, inter alia, that:-
"8. (b) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or Page 1 C/SCA/17194/2014 ORDER any other writ, order or direction to quash and set aside the communication dated 18.11.2014 issued by the respondent No. 2 herein.
(bb) Your Lordship may be pleased to direct the respondent No. 2 Surat Urban Development authority to grant development permission for construction of building upon land bearing survey No. 174 block No. 165 paiki of Vadakacha land of Mauge Sachin Dist.
Surat."
3. After hearing the petitioner, the Court had passed order dated 26.11.2014. The relevant part of the said order reads thus:-
" 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 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.
Page 2 C/SCA/17194/2014 ORDER 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 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 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."
4. Thereafter the petitioner also preferred Civil Application being Civil Application No. 13951 of 2014. In the said Civil Application i.e. Civil Application No. 13951 of 2014 the applicant - petitioner prayed, inter alia, that:-
"8 (B) Your Lordship may be pleased to grant amendment by permitting the petitioner to add in Statement of facts Para 3.15 to 3.23; to add grounds Para 4(L) to 4(X) and to add prayer clause Para 8(bb) in Memo of petition of Special Civil Application No. 17194 of 2014 in this Hon'ble High Court."
4.1 The said application came to be disposed of vide order dated 25.3.2015 passed in the said Page 4 C/SCA/17194/2014 ORDER Civil Application being Civil Application No. 13951 of 2014. The relevant part of the said order reads thus:-
"3. As mentioned in the order dated 11.3.2015, the respondents are directed to maintain status-quo vide order dated 26.11.2014. Since there is no corresponding obligation on the applicant petitioner, the petitioner is, according to the respondent corporation proceeding with the construction work which is illegal and in violation of applicable rules and consequently, further equities are being created. Since the process of carrying out amendment and reply by the respondents would consume further time, it appears appropriate to add the said corresponding objection / condition on the petitioner. Therefore, following order is passed:-
3.1 The applicant is permitted to amend the petition in terms of paragraph No.8(B). Amendment to be carried out on or before 30.3.2015. The permission is subject to the respondents' right to oppose the details sought to be incorporated in the petition by adding paragraph Nos.3.15 to 3.23 and the documents which are sought to be placed on record by way of this application. It would be open to the respondents to raise all such contentions as may be available in law with regard to the details sought to be placed on record by way of amendment and also with regard to the documents. The respondents may file appropriate reply dealing with the amended petition or before 6.4.2015.
Page 5 C/SCA/17194/2014 ORDER The petitioner, after incorporating amendment in the petition, will file amended memo of the petition and original memo of the petition with the amendment sought by the petitioner shall be retained on record. If the petitioner wants to file any rejoinder in response to the further affidavit by the respondent corporation, the petitioner may do so on or before 8.4.2015.
At this stage, Mr. Marshall, learned Senior Counsel for the applicant, submitted that the petitioner will file, if required, appropriate rejoinder on or before 13.4.2015.
In this view of the matter, further hearing of the main petition stands adjourned to 15.4.2015. 3.2 As mentioned earlier and as mentioned in the order dated 11.3.2015 and also having regard to the order dated 26.11.2014 whereby the Court has granted ad-interim relief, it is clarified that the petitioner also shall discharge corresponding obligation and shall maintain status-quo, until the said order continues or next date of hearing, which ever is later.
With aforesaid clarifications and permission, present application stands disposed of.
5. The petitioner is aggrieved by the order / communication dated 18.11.2014 passed by the respondent No.2-SUDA.
5.1 In the said order / communication dated Page 6 C/SCA/17194/2014 ORDER 18.11.2014 the respondent - SUDA informed the petitioner that the authorized officer / employee of the respondent no. 2 will enter the premises and commence demolition of the constructed premises or part of the premises which according to the respondent No. 2 authority is illegal and unauthorized and that the construction of the disputed premises (or part of the disputed premises) is required to be demolished. 5.2 Upon receiving such communication and feeling aggrieved by it the petitioner preferred present petition wherein the Court passed above referred order dated 26.11.2014. The said order came to be partly modified by order dated 25.3.2015 in Civil Application No. 13951 of 2014.
5.3 The respondent No. 2 SUDA has filed reply affidavit and opposed the petition. 5.4 According to the assertions made in the reply affidavit, the construction put-up by the petitioner is illegal and unauthorized and in Page 7 C/SCA/17194/2014 ORDER violation of applicable rules.
5.5 The respondent No. 2 SUDA has also filed further affidavit.
5.6 The allegation and claim by the respondent No. 2 SUDA is disputed and denied by the petitioner.
5.7 It was for the purpose of meeting with the allegations by the respondent No. 2 SUDA that the petitioner sought to place additional material / documents on record of present petition by way of relief prayed for in above mentioned Civil Application No. 13951 of 2014.
5.8 In the said Civil Application No. 13951 of 2014, the Court passed above quoted order dated 25.3.2015.
5.9 The petitioner has assailed the impugned communication by respondent No. 2 SUDA on diverse grounds.
Page 8 C/SCA/17194/2014 ORDER 5.10 However, the main contention on which the said communication and proposed action by the respondent no. 2 is challenged is on the ground of violation of principles of natural justice. 5.11 The petitioner has claimed and alleged that the notices which preceded the impugned order / communication dated 18.1.2014 were never issued to the petitioner and not served to the petitioner inasmuch as the notices were addressed to 3rd party and not the petitioner. Learned advocate for the corporation would contend that the authority issued notices in the name of the person borne out from the record.
6. Be that as it may, the petitioner contended that the notices were not served to the petitioner and the petitioner has further alleged that even if the claim of the respondent corporation with regard to the notices were to accepted for testing the case of the respondent No. 2 SUDA then also the fact would remain that Page 9 C/SCA/17194/2014 ORDER the petitioner is not granted sufficient opportunity of hearing before the impugned order came to be passed. The allegation that the corporation issued the order and sought to start action without issuing notice is not disputed by SUDA.
7. In view of the fact that the said communication and proposed action are challenged on the ground of principles of natural justice, it appears that petition can be disposed of without entering into other contention raised by the petitioner and denial of said allegation and assertion by the respondent SUDA.
8. Actually from the reply affidavit filed by the respondent No. 2 SUDA it appears that even respondent no. 2 SUDA has come out with the stand that the authority is ready and willing to issue notice and then initiate appropriate action as may be necessary in light of the facts and it is stipulated that SUDA will grant proper and Page 10 C/SCA/17194/2014 ORDER sufficient opportunity of hearing to the petitioner and then take action as may be considered appropriate after hearing the petitioner.
8.1 On this count it is relevant to take into account, at this stage, the statements and submissions by respondent No. 2 authority in its reply affidavit dated 11.12.2013. In sub- paragraph No. 10 (page 234 of the record of main petition) the deponent of the respondent authority has stipulated that:-
"However, the respondent No.2 herein is agreeable to hear present petitioner after issuing fresh notice under the provisions of Section 36(1) of the Act. It is submitted that thereafter a fresh decision will be taken under provisions of Section 36 in accordance with the Rules and Regulations in force."
9. At the time of hearing Mr. Mushaw, learned advocate for the respondent SUDA fairly submitted that the respondent SUDA will not rely on the notices which were issued earlier and instead the respondent authority will issue fresh notice to Page 11 C/SCA/17194/2014 ORDER the petitioner and the competent officer of the respondent authority will also grant opportunity of hearing to the petitioner and then pass appropriate order.
10. Mr. Marshall, learned Senior Counsel for the petitioner submitted that the petitioner does not have any objection to submit reply in response to the notices and to appear before the authority and place the correct and complete facts before the authority and to request that the proposed action is not required.
11. In view of the said stipulation in the reply affidavit as well as submission made by Mr. Munshaw, learned advocate for the respondent SUDA and the submissions by Mr. Marshall, learned Senior Counsel for the petitioner, it appears that the petition deserves to be disposed of at this stage without entering into various allegations, contentions and disputes. Therefore, below mentioned order is passed:-
Page 12 C/SCA/17194/2014 ORDER Earlier Notices issued by the respondent SUDA will be deemed to have been cancelled and instead the respondent No. 2 SUDA may issue fresh notice to the petitioner calling upon the petitioner to submit appropriate reply / explanation.
For the said purpose (i.e. for submitting appropriate reply / explanation) the respondent SUDA will give reasonable time - at least 1 week's time - to the petitioner.
Learned Senior Counsel appearing for the petitioner submitted that the petitioner will cooperate in early hearing of the matter and will not unnecessarily prolong the hearing.
Learned Senior Counsel appearing for the petitioner submitted that after receipt of the notice the petitioner will submit appropriate reply with supporting documents within time granted by the respondent SUDA.The competent authority of respondent No. 2
SUDA will also grant an opportunity of hearing to the petitioner.
Page 13 C/SCA/17194/2014 ORDER It will be open to the petitioner to submit such material which the petitioner wants to rely on along with its reply and to rely on such material at the time of hearing before the authority.
The respondent SUDA may also bring to the notice of the petitioner the material on which notices are based and the respondent No.2 authority relies on.
After considering the submissions by the petitioner and after taking into account the material placed on record and / or relied by the petitioner, the respondent No. 2 authority will pass fresh order as may be deemed proper in the facts and circumstances of the case.
The respondent authority will pass reasoned and speaking order and the order will be conveyed to the petitioner.
During the proceedings before the authority and until order is passed by the competent authority, and for period of one week thereafter, Page 14 C/SCA/17194/2014 ORDER both the parties will maintain status quo i.e. effect of the order dated 26.11.2014 read with order dated 25.3.2015 will enure for 7 days from and after the date of the order by the authority.
It is clarified that the respondent no. 2 will inform the order to the petitioner by RPAD post and the above direction to maintain status quo will enure for 7 days from the date of such communication.
With the aforesaid clarifications, the petition is disposed of.
(K.M.THAKER, J.) Suresh* Page 15