Gujarat High Court
Pritiben Ambalal Patel vs Town Devlopment Officer on 8 January, 2025
NEUTRAL CITATION
C/SCA/7726/2016 JUDGMENT DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7726 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7730 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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PRITIBEN AMBALAL PATEL
Versus
TOWN DEVLOPMENT OFFICER
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Appearance:
MR TATTVAM K PATEL(5455) for the Petitioner(s) No. 1
MR NILESH A PANDYA(549) for the Respondent(s) No. 1
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CORAM HONOURABLE MRS. JUSTICE MAUNA M. BHATT
:
Date : 08/01/2025
ORAL JUDGMENT
1. Rule. Learned advocate Mr.Nilesh Pandya waives service of notice of Rule on behalf of the respondents.
Since the issue involved in captioned writ petitions is similar, with the consent of the learned advocates appearing for the respective parties, both these petitioners are taken up together for final hearing.
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2. These petitions are filed challenging the orders of respondent No.2 - Vadodara Municipal Corporation dated 02.05.2016 by which, the petitioners were directed to demolish the construction holding it to be unauthorised and beyond the development permission.
3. Facts in brief, as referred in the petitions, are as under:
3.1 The petitioners are owners of constructed property through registered sale deed. Subsequent to their ownership, the petitioners put some more construction on the subject property for which, they had applied for additional development permission vide applications dated 13.12.2013 Annexure "C". In the applications, the petitioners had requested for regularisation of their construction. The applications for regularisation of unauthorised construction were made under section 12 of the GRUDA Act. Pursuant to the applications dated 13.12.2013, the petitioners' cases were considered for regularisation of construction by payment of impact fees, which is evident from receipts at Annexure "B".
The order dated 13.12.2013 states that in view of sub-section (3) of Section 6 of the GRUDA Act, the construction as referred therein has been regularised. After regularisation of the construction, the petitioners were served with the show cause notice under section 260(1) of the Gujarat Provincial Municipal Page 2 of 8 Uploaded by DIPTI PATEL(HC00191) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:41:08 IST 2025 NEUTRAL CITATION C/SCA/7726/2016 JUDGMENT DATED: 08/01/2025 undefined Corporations Act dated 26.02.2016 directing them to demolish unauthorised construction. Under the Notice dated 26.02.2016, opportunity of responding the same was provided. In response thereto, the petitioners had replied on 01.03.2016. In reply, it was pointed out by the petitioners that it is not a case of unauthorised constriction but the construction put-up by the petitioners was regularised vide order dated 13.12.2013. Thereafter, an order dated 02.05.2016 was passed directing to demolish the unauthorised construction. Aggrieved by which, the present petition is filed.
4. Heard learned advocate Mr.Tattvam Patel for the petitioners and learned advocate Mr.Nilesh Pandya for the respondent.
5. Learned advocate Mr.Tattvam Patel for the petitioners submitted that the order dated 02.05.2016 is erroneous since authority had erred in not appreciating that for the alleged unauthorized construction the petitioners had made applications under the provisions of the GRUDA Act. Pursuant to the applications made, an order dated 13.12.2013 was passed regularising their construction. Therefore, Notice dated 26.02.2016 under section 260(1) of the Act was erroneous. Since Notice dated 26.02.2016 was served providing an opportunity to respond to it, the petitioners immediately filed Page 3 of 8 Uploaded by DIPTI PATEL(HC00191) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:41:08 IST 2025 NEUTRAL CITATION C/SCA/7726/2016 JUDGMENT DATED: 08/01/2025 undefined their response on 01.03.2016 bringing the aforesaid facts to the notice of the respondent authority, despite that an order dated 02.05.2016 was passed. Learned advocate submitted that if the respondent corporation is aggrieved by the order dated 13.12.2013 whereby the construction carried out by the petitioners have been regularised, an appeal is provided under section 12 of GRUDA Act, 2011. In this case, no appeal was filed and therefore, that order has attended finality. Therefore, any action taken basis the order dated 13.12.2013 being illegal deserves to be quashed and set aside.
6. Further, prior to order dated 02.05.2016, no opportunity of hearing was provided to the petitioners and therefore, the order was in breach of principles of natural justice, and deserves to be quashed and set aside. Learned advocate for the petitioners further submitted that in order dated 02.05.2026, no reference has been made with regard to the order dated 13.12.2013 by which, construction was regularised.
7. On the other hand, learned advocate Mr.Nilesh Pandya for the respondent by placing reliance on affidavit submitted by the petitioners had caried out unauthorised construction in the common plot. Further, these petitions are filed challenging the Notice dated 26.02.2016, which is show cause notice. Learned Advocate submitted that the Notice dated 26.02.2016 Page 4 of 8 Uploaded by DIPTI PATEL(HC00191) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:41:08 IST 2025 NEUTRAL CITATION C/SCA/7726/2016 JUDGMENT DATED: 08/01/2025 undefined being show cause notice, the petitioners are required to respond to the same and thereafter, appropriate decision will be taken.
8. In relation to the submission made that 13.12.2013 is the order where the applications of the petitioners were allowed permitting regularisation of constitutions, learned advocate submitted that no appeal is required to be filed by the respondent.
9. In response to the submission that before passing an order dated 02.05.2016, no opportunity was provided to the petitioners, learned advocate Mr.Nilesh Pandya for the respondent submitted that the petitioners are required to explain the same before the Committee.
10. Considering the submissions, revisitation of the following facts would be necessary.
11. The ownership of subject property with the petitioners, is not in dispute. It appears that after having ownerships of the subject property, the petitioners did some construction and thereafter applied for regularisation of unauthorised construction by making an application dated 13.12.2013. Pursuant to the applications of the petitioners, an order dated Page 5 of 8 Uploaded by DIPTI PATEL(HC00191) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:41:08 IST 2025 NEUTRAL CITATION C/SCA/7726/2016 JUDGMENT DATED: 08/01/2025 undefined 13.12.2013 was passed under sub-section (3) of section 6 of the GRUDA Act, regularising the unauthorised construction of the petitioners.
12. Against the order dated 13.12.2013, no appeal was filed by the respondent-corporation and to that extent, the order allowing regularization of unauthorised construction to the extent of 13.62 sq.mtrs. on ground level; 25.63 sq.mtrs. at built up area and height of 39.25 mtrs., had attain finality.
13. Thereafter, Notice dated 26.02.2016 was issued under section 260(1) of the Act providing an opportunity of hearing to the petitioners to explain as to how their unauthorised construction shall not be removed. In response thereto, the petitioners had filed their reply dated 01.03.2016. From the reply, it appears that the said reply was filed by the owners of Amitnagar Shopping Center to the Town Planning Officer, where the petitioners are signatories. Thereafter, an order dated 02.05.2016 was passed in the name of one Dinubhai Chimanbhai Patel, c/o. owners of the shops of Amitnagar Shopping Center. From the averments made in the petitions, the petitioners herein are owners of Shop Nos.5 & 6 and therefore, they had filed these petitions challenging the order dated 02.05.2016. Therefore, the submission made on behalf of respondent- corporation that the petitions are filed challenging Page 6 of 8 Uploaded by DIPTI PATEL(HC00191) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:41:08 IST 2025 NEUTRAL CITATION C/SCA/7726/2016 JUDGMENT DATED: 08/01/2025 undefined the show-cause notices is misconceived. Further, submission made by learned advocate for the respondent corporation that unauthrosied constriction was done in the common plot as stated in the affidavit, is not acceptable since the order dated 02.05.2016 doesn't refer to any unauthorised construction in the common plot. However, noticing the fact that the respondent- corporation is ready to provide opportunity of hearing to the notice dated 02.05.2016 considering the same as show cause notice, following order is passed.
(i) Considering the submission that notice dated 26.02.2016, issued under section 260(1) of the Gujarat Provincial Municipal Corporation Act, will be treated as show cause notice providing opportunity to the petitioners to respond to the same; the petitioners shall respond to the Notices dated 26.02.2016 within a period of two weeks from the date of receipt of this order.
(ii) Respondent authority is directed to provide personal hearing to the petitioners. It is open for the petitioners to produce necessary evidence in support of their submissions.
(v) Entire exercise as directed herein above shall be completed within a period of two weeks thereafter.
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(vi) This Court has not gone into the merits of the Notice dated 26.02.2016, and a decision shall be taken in accordance with law.
15. With this, the present petitions are disposed of. Rules are discharged. Interim relief, if any, stands vacated forthwith.
(MAUNA M. BHATT,J) DIPTI PATEL....
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