Gujarat High Court
Vishalbhai Kamleshbhai Parikh vs State Of Gujarat on 28 February, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/341/2025 ORDER DATED: 28/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 341 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 544 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 341 of 2025
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VISHALBHAI KAMLESHBHAI PARIKH & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MEHUL S.SHAH SENIOR ADVOCATE WITH MR. KARAN U
VYAS(6992) for the Appellant(s) No. 1,2,3,4
MR G H VIRK WITH MR S.H.VIRK (7392) for the Respondent(s) No. 2,3
MS HETAL PATEL AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/02/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Citing extreme urgency in the matter, and since the regular Bench is not available, we have taken up the matter today, as it was mentioned that the unauthorized construction will be removed by the respondent - Corporation today.
2. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865 emanates from the order dated 12.02.2025 passed by the learned Single Judge rejecting the captioned writ petition filed by the present appellants - original petitioners. The captioned writ petition is filed with following prayers:
Page 1 of 9 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:44:03 IST 2025NEUTRAL CITATION C/LPA/341/2025 ORDER DATED: 28/02/2025 undefined "(A) Be pleased to admit and allow the petition.
(B) Be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction, quashing and setting-
aside the notice dated 02.01.2025 at (Annexure-A).
(C) Pending admission and final hearing of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the notice dated 02.01.2025;
3. Thus, the petitioners are seeking direction for quashing and setting aside the notice dated 02.01.2025 issued by the respondent - Corporation, whereby the process of widening- up the road is undertaken in view of the Town Planning Scheme and they are directed to remove the unauthorized construction within a period of three days.
4. The learned Single Judge gave two opportunities to the appellants - original petitioners to produce the demarcation of the land in view of the Town Planning Scheme however, they failed to do so and ultimately, the learned Single Judge has rejected the writ petition.
5. Learned Senior Advocate Mr.Mehul S.Shah with learned advocate Mr. Karan U.Vyas appearing for the appellants - original petitioners has submitted that the respondent - Corporation has acted in violation of the provisions of Sections 68 and 69 of the Gujarat Town Planning and Urban Development Act, 1976 (for short "the T.P. Act") read with Gujarat Town Planning and Urban Development Rules, 1979 (for short "the T.P. Rules"). He has referred to the provisions of Sections 68 and 69 of the T.P. Act and has submitted that before such action is taken, the respondent - Corporation is Page 2 of 9 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:44:03 IST 2025 NEUTRAL CITATION C/LPA/341/2025 ORDER DATED: 28/02/2025 undefined required to examine their grievance and objection to the removal of construction since it is beyond the permissible demarcation of the Town Planning Scheme. Reference is also made to the judgment of the Supreme Court in the case of Babubhai And Company vs. State of Gujarat, 1985 (2) S.C.C. 732.
6. Learned Senior Advocate Mr.Shah, while referring to the aforesaid judgment of the Supreme Court, has submitted that in case of summary eviction also, the respondent - Corporation is required to give notice and hearing to them and only after considering their objections, the said construction, which is subject of matter of the notice, is required to be removed.
7. It is also submitted by learned Senior Advocate Mr.Shah that all of a sudden, after a period of 25 years, the respondent-Corporation has taken the step of removing the construction in view of widening of 12 mtrs. Town Planning Road and before undertaking such exercise of removing the construction, the respondent - Corporation is required to give hearing. Thus, it is urged that the order passed by the learned Single Judge as well as the notice are required to be quashed and set aside.
8. Vehemently opposing the present appeal, learned advocate Mr.G.H.Virk appearing for the respondent- Corporation has submitted that the present appeal deserves to be dismissed with exemplary cost, as the appellants - original petitioners have mislead the learned Single Judge as Page 3 of 9 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:44:03 IST 2025 NEUTRAL CITATION C/LPA/341/2025 ORDER DATED: 28/02/2025 undefined well as this Court. He has referred to the observations recorded by the learned Single Judge and also the judgment dated 13.09.2005 passed in Special Civil Application No.2462 of 2005, wherein the very society of the present appellants- original petitioners had assailed the final Town Planning Scheme.
9. Learned advocate Mr.Virk has submitted that by placing reliance on the said judgment, a contention was raised in the said writ petition by the appellants - original petitioners with regard to 12 mtr. Town Planning Road and has submitted that in fact 12 mtr. Town Planning Road is not the road, which is mentioned in the notice dated 02.01.2025, whereas the road mentioned in the oral judgment dated 13.09.2005 passed in Special Civil Application No.2462 of 2005, refers to the service lane parallel to Sarkhej-Gandhinagar Highway. It is submitted that the issue, as mentioned in Special Civil Application No.2462 of 2005, refers to the Original Plot Nos.205, 206, 208 and 209/1, which have been vested with Muni Hemchandra Acharya Cooperative Housing Society Ltd., as Final Plot Nos.205, 206, 208 and 209/1, in which the land of Original Plot No.210 is vested forming the said 378 sq. yards land and 12 mtr. road abetting thereto (which the road parallel to Sarkhej-Gandhinagar Highway).
10. It is submitted that in view of the provisions of Section 69 of the T.P. Act, the respondent authorities are empowered to move, remove, pull down, or alter any building or other work after finalization of the Town Planning Scheme. It is thus, urged that the present appeal may not be entertained.
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11. We have heard the learned advocates appearing for the respective parties at length. The matter has been taken up today on the request of the appellants-original petitioners, as they were facing the demolition of the construction.
12. The appellants - original petitioners before us have never contended that the construction, which is sought to be removed by the respondent-Corporation, as suggested in the notice dated 02.01.2025, is legal and authorized. By the notice dated 02.01.2025, the respondent-Corporation had asked the appellants-original petitioners to remove the unauthorized construction on the Town Planning Road within a period of three days, instead of doing so, they filed the aforesaid writ petition before this Court. The learned Single Judge, by the order dated 16.01.2025, adjourned the captioned matter on the request made by the learned advocate for the appellants- original petitioners to produce the demarcation, which was earlier done by the Ahmedabad Urban Development Authority (AUDA), as recorded in the earlier petition. Again the matter was listed on 27.01.2025 and the learned Single Judge passed the following order:
"After having heard the matter for some time, learned advocate for the petitioners requested for one week's time to produce the earlier demarcation done prior to sanctioning of Draft Twon Planning Scheme.
As a last chance, stand over to 03.02.2025."
13. Despite the aforesaid opportunities, available to the appellants-original petitioners, they did not produce any demarcation. It is also not in dispute that the Town Planning Scheme, which lays down the Town Planning Road, has been Page 5 of 9 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:44:03 IST 2025 NEUTRAL CITATION C/LPA/341/2025 ORDER DATED: 28/02/2025 undefined finalized in the year 2002. The said T.P. Scheme was subject matter of challenge before this Court in Special Civil Application No.2462 of 2005, in which the society was also a party. By the order dated 13.09.2005, this Court directed the respondent No.2-AMC, to fully implement the Town Planning Scheme, which has become final, by handing over peaceful and vacant possession of the entire Final Plot Nos.205, 206, 208, 209/1 and 209/2 inclusive of the land, which is allotted to the society from original Plot No.210, which is in possession of the respondent No.4-Society.
14. Thus, all the issues were finalized and laid quietus in the year 2005. The Town Planning Scheme has become final in the year 2002, after considering the objections of all the stakeholders. Today, the appellants-original petitioners are objecting that the activity of road widening, which is undertaken in view of the Town Planning Scheme, is deleterious to the construction, which has been put by them. It is the case of the appellants-original petitioners that the respondent authorities are removing the construction, which is beyond the Town Planning Scheme and hence, they are required to be issued notices and are required to be heard.
15. The entire case of the appellants-original petitioners hinges on the measurement or the demarcation which, as per their say, the respondent-Corporation is acting in excess of the measurement. As mentioned hereinabove, though the opportunities were provided to the appellants-original petitioners, they did not produce any demarcation. Be that as it may, the Town Planning Scheme having become final as per the settled proposition of law, even the preliminary Scheme Page 6 of 9 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:44:03 IST 2025 NEUTRAL CITATION C/LPA/341/2025 ORDER DATED: 28/02/2025 undefined becomes part of the Act, it cannot be questioned since it partakes the character of statute.
16. The present appellants-original petitioners by taking the excuse of measurement have tried to question the action of the respondent-Corporation of demolishing the unauthorized construction. They have tried their level best to see that the respondent-Corporation fails in implementing the Town Planning Road and their unauthorized construction is saved. They have failed before the learned Single Judge and ultimately, they have filed the Letters Patent Appeal raising the very same questions without there being any supportive material produced before us also.
17. The action of the appellants-original petitioners in challenging the Show-Cause Notice dated 02.01.2025, before this Court, is not only misleading but a sheer wastage of time and they want to resurrect the issues, which have become settled in the year 2002 in view of finalization of the Town Planning Scheme and, when the order was passed by the learned Single Judge directing them to handover the peaceful possession in the year 2005.
18. The judgments, on which the reliance is placed by the learned Senior Advocate Mr.Shah, will not come to the rescue of the appellants-original petitioners, as they would not apply to the facts of the present case. The provisions of Section 69 of the T.P. Act, empowers the respondent - Corporation to enforce the scheme and remove, pull down or alter any building or other work in the area included in the scheme, which has contravened the scheme.
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19. In the present case, the respondent-Corporation is only implementing the scheme, which has been finalized before two decades. Hence, the present proceedings are not only misdirected but an abuse of process of law resulting into sheer wastage of judicial time. Hence, we have no option but to dismiss the present appeal with exemplary costs.
20. At this stage, learned Senior Advocate Mr.Shah, has submitted that the appellants-original petitioners are ready and willing to give the undertaking to remove the unauthorized constructions within a period of 01 (one) week, which has been vehemently opposed by learned advocate Mr.Virk. It is submitted that such undertaking would give rise to further litigation, in case, they do not abide with the undertaking. The suggestion made by learned Senior Advocate Mr.Shah, is rejected by this Court, as the appellants- original petitioners were supposed to undertake necessary exercise of removal of unauthorized construction pursuant to the notice dated 02.01.2025. They were already given three days' time by the respondent-Corporation. By now, we have reached the end of February, 2025, however nothing has been done and only looking to the approach of this Court, today a statement is made that they would be voluntarily removing the unauthorized construction, as per their measurement. Hence, we reject such request.
21. The respondent - Corporation shall do the needful and undertake necessary exercise for demolishing the unauthorized construction. The appellants are directed not to create any hurdle in exercise of the respondent-Corporation of Page 8 of 9 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:44:03 IST 2025 NEUTRAL CITATION C/LPA/341/2025 ORDER DATED: 28/02/2025 undefined demolishing the unauthorized construction / encroachment on the land in question.
22. The appeal is dismissed with exemplary costs of Rs.25,000/- (Rupees Twenty Five Thousand). The same shall be deposited before the Registry within a period of 02 (two) weeks, failing which, the Registry shall list the matter before the Bench assigned the present Roster.
23. As a sequel, the connected Civil Application stands disposed of.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(GITA GOPI,J)
Pankaj/2
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