C/SCA/26745/2022 ORDER DATED: 13/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26745 of 2022
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MOHAMMAD SAEED KAJIMUDDIN SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR HITESH N ACHARYA(2302) for the Petitioner(s) No. 1,2
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
AISHVARYA(8018) for the Respondent(s) No. 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 13/02/2023
ORAL ORDER
1 By way of the petition, the petitioners have prayed for the following relief:
"[B] Your Lordship may be. pleased to allow this Special Civil Application by issuing a writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ or direction for setting aside the impugned exparte notices dated 08.12.2021 and 04.06.2022 issued by the respondent no 3 'u/s 68 The Gujarat Town Planning & Urban Development Act, 1976 and Rule 33 framed thereunder.Page 1 of 6 Downloaded on : Wed Feb 15 20:50:55 IST 2023
C/SCA/26745/2022 ORDER DATED: 13/02/2023 [C] Your Lordship may. be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ, order. or direction declaring that the respondent Corporation has no legal right or authority to demolish the office and rooms for laborers and godown situated at Survey No. 448 without giving the possession of the final plot constituted under the Scheme in respect of the petitioners. [D] Be further pleased to declare the notices dated 08.12.2021 and 04.06.2022 which are not acted upon so far as illegal, contrary to the provisions of the Act and the rules and contrary to the Judgment of the Hon'ble Supreme Court of India.
[E] Pending admission and till final disposal of this Special Civil Application, this Hon'ble Court may be pleased to restrain the respondent, its officers, servants, agents from taking possession of plot, interfere with the possession in any way or demolish office and rooms for' laborers and godown situated at Survey No. 448 in the interest of justice." Page 2 of 6 Downloaded on : Wed Feb 15 20:50:55 IST 2023 C/SCA/26745/2022 ORDER DATED: 13/02/2023 2 It is grievance of the petitioners that thought the petitioners are in possession of the land in question by virtue of notarized sale deed executed on 20.1.2003, the notice under Section 68 of the Gujarat Town Planning and Urban Development Act, 1976 read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 is issued to the predecessor-in-title of the petitioners by the Ahmedabad Urban Development Authority and no opportunity of hearing was given to the petitioners. 3 Mr.Acharya, learned advocate for the petitioners, submits that Section 68 of the Act is about power of appropriate authority to evict summarily and the word used in that section refers to `occupier' as the word `occupy' is used. He further submits that Rule 33 provides that a notice is required to be served upon a person to be evicted and if he fails to comply with the requirement of notice, the appropriate authority shall deputy any Officer or Servant to remove him from the land in question. Page 3 of 6 Downloaded on : Wed Feb 15 20:50:55 IST 2023
C/SCA/26745/2022 ORDER DATED: 13/02/2023 3.1 By relying upon the language of Section 68 and Rule 33, learned advocate Mr.Acharya, submits that the impugned notice was issued on 4.6.2022 to one Khengarbhai Bhojabhai Bharvad, who was the erstwhile owner or occupier of the land in question and the said notice is not issued to the petitioners. 4 Mr.Munshaw, learned advocate for Ahmedabad Urban Development Authority could not dispute the aforesaid fact as notice is issued in the name of Khengarbhai Bhojabhai Bharvad and not in the name of the petitioners. Hence, though he resisted the petition by submitting that the notice issued under Section 68 read with Rule 33 for implementation of Town Planning Scheme, but he could not point anything nor could place anything to indicate that notice under Section 68 read with Rule 33 is issued upon the petitioners.
5 In view of the above, the present petition stands disposed of with the following directions: Page 4 of 6 Downloaded on : Wed Feb 15 20:50:55 IST 2023 C/SCA/26745/2022 ORDER DATED: 13/02/2023 [1] Impugned notices dated 8.12.2021 and 4.6.2022 issued by Ahmedabad Municipal Corporation are hereby quashed and set aside. [2] The respondent authority shall issue fresh notice to the petitioners.
[3] The petitioner shall file reply to the notice that may be issued by Ahmedabad Urban Development Authority within a period of 15 days from the receipt of notice.
[4] The competent authority of the Ahmedabad Urban Development Authority shall take decision after taking into consideration the reply of the petitioner within a period of one month from the receipt of the reply from the petitioners and the said decision shall be communicated to the petitioners by Registered Post Ad.
[5] The respondent authority shall not take any coercive steps against the petitioners, till the Page 5 of 6 Downloaded on : Wed Feb 15 20:50:55 IST 2023 C/SCA/26745/2022 ORDER DATED: 13/02/2023 final decision is communicated to the petitioners.
6 With the aforesaid direction, this petition stands disposed of. It is clarified that this petition has not gone into the merit of the matter.
Notice discharged. No costs.
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 6 of 6 Downloaded on : Wed Feb 15 20:50:55 IST 2023