Pankajbhai Jayantilal Joshi vs State Of Gujarat & on 18 January, 2017

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Gujarat High Court

Pankajbhai Jayantilal Joshi vs State Of Gujarat & on 18 January, 2017

Bench: R.M.Chhaya

              C/SCA/15614/2016                                                  ORDER



                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    SPECIAL CIVIL APPLICATION NO. 15614 of 2016

         ==========================================================
                      PANKAJBHAI JAYANTILAL JOSHI....Petitioner(s)
                                      Versus
                        STATE OF GUJARAT & 1....Respondent(s)
         ==========================================================
         Appearance:
         MR DAKSHESH MEHTA, ADVOCATE for the Petitioner(s) No. 1
         MR. RUSHANG D MEHTA, ADVOCATE for the Petitioner(s) No. 1
         MR JANAK RAVAL, AGP for the RESPONDENT(s) No. 1
         MR KAUSHAL D PANDYA, ADVOCATE for the respondent no.2
         ==========================================================

                CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA

                                   Date : 18/01/2017


                                     ORAL ORDER

1. Heard Mr. Dakshesh Mehta, learned advocate for the petitioner and Mr. Janak Raval, learned AGP for respondent no.1. Mr. Kaushal D. Pandya, learned advocate appears for respondent no.2. Mr. Pandya, learned advocate shall file his Vakalatnama within a period of one week from today. Registry is directed to accept Vakalatnama of Mr. Pandya, learned advocate for respondent no.2.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the notices issued by the respondent Page 1 of 4 HC-NIC Page 1 of 4 Created On Sat Aug 12 13:45:32 IST 2017 C/SCA/15614/2016 ORDER no.2 pursuant to the order passed by this Court in Special Civil Application no.6578 of 2015 dated 11.4.2016 for implementation of Town Planning Scheme (Bardoli) no.1 in relation to Final Plot nos.156 and 157.

3. Respondent no.2, as an implementing authority, is duty bound to implement the scheme in accordance with law, more particularly, as per the provisions of Section 67 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act") read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules").

4. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of M/s. Babulal & Co. & Ors. Vs. State of Gujarat & Ors., reported in AIR 1985 SC 613, wherein it has been observed as under: "8. In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by s. 54 it will appear clear that the topic of making of town planning schemes is dealt with in ss. 21 to 53 while s. 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 Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Aug 12 13:45:32 IST 2017 C/SCA/15614/2016 ORDER 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 quasi judicial 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 eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, nongermane, irrelevant or malafide 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. As the present petition is against the notice issued under Section 67 of the Act read with Rule 33 of the Rules, following directions are Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Aug 12 13:45:32 IST 2017 C/SCA/15614/2016 ORDER given: [a] The petitioner shall file reply, if any, to the notice latest by 23.1.2017.

[b] The competent authority of respondent no.2 shall hear the petitioner and affected parties on or before 31.1.2017 and pass a reasoned order as per the ratio laid down in the case of M/s. Babulal & Co. & Ors. (supra).

[c] It goes without saying that it is open for the petitioner as well as the parties to file appropriate replies.

6. Accordingly, the petition is disposed of.

D.S. permitted.

(R.M.CHHAYA, J.) mrp Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Aug 12 13:45:32 IST 2017

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