Gujarat High Court
Umesh Pravinbhai Makwana vs State Of Gujarat on 26 September, 2025
NEUTRAL CITATION
C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025
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Reserved On : 28/05/2025
Pronounced On : 26/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7325 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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UMESH PRAVINBHAI MAKWANA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR D S GADHVI(11310) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,
30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,6,
7,8,9
MS. KINJAL A PATEL(17706) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,
30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,6,
7,8,9
MR SAHIL B TRIVEDI ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR G H VIRK(7392) GOVERNMENT PLEADER & MR
SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
1. The Petitioners herein, having been aggrieved by the action of the Respondent No. 2, the Ahmedabad Municipal Corporation, Page 1 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined in issuing the notices dated 24.04.2025, under the provisions of Gujarat Town Planning and Urban Development Act, 1976, (hereinafter, "the Town Planning Act") calling on the Petitioners to vacate the subject premises, located at Subhash Nagar, situated on Final Plot Nos. 486 of Survey No. 193, Original Block 194, within the limits of village Acher, Sabarmati Taluka, Ahmedabad, have preferred the present Special Civil Application.
2. The prayer clause to the Special Civil Application No. 7325 / 2025 reads thus:
(A) This Hon'ble Court may be pleased to issue a writ, or, issue a writ of Mandamus or Certiorari, or any other appropriate writ, order or direction quashing and setting aside the eviction notices dated 24.04.2025 issued by Respondent No. 2 (Annexure A Colly);
(B) Declare that the Petitioners, being residents of a duly declared slum area, are entitled protection under Section 17 of The Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, be 1973, and cannot evicted without following the procedure prescribed therein;
(C) Pending this petition, stay implementation and execution of notice dated 24.04.2025 (Annexure A) and restrain the Respondents from taking any coercive action pursuant to the said notices, including eviction or demolition, in respect of the Petitioners' premises;
(D) This Hon'ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favour of the petitioner.Page 2 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025
NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined 1 (E) Your Lordships May be pleased to Quash and set aside the orders dated 21.05.2025 (Annexure H) passed by the respondent authority under Section 68 of the Gujarat Town Planning and Urban Development Act, 1976 and Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979, as being arbitrary, mechanical, without application of mind, and in violation of Section 17 of the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973 and further Hold and declare that the petitioners are protected occupants under Section 17 of the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973 and no eviction order can be passed against them without following due process as prescribed under the said Act; (F). Pending the admission, hearing and final disposal of the present petition, stay the operation, implementation and execution of the impugned orders dated 21.05.2025 issued by the respondent authority directing the petitioners to vacate the residential premises situated on Final Plot No. 486.
3. The relevant facts, in so far the Special Civil Application No. 7325 / 2025 are concerned, the same read as follows:
a. The petitioners, 49 in number, claim to be the permanent residents of Subhash Nagar, situated on Final Plot No. 486 of Survey No. 193, original Block number 194, within the limits of village Acher, Sabarmati Taluka, Ahmedabad District.
b. Vide Government Gazette Notification dated 11.02.2020, published in Part-2 of the Gujarat Gazette, the aforesaid locality, whereof which, the petitioners claim 1Prayer Clauses E and F have been added vide subsequent amendment to the plaint.Page 3 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025
NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined to be permanent residents, had been declared as a Slum Area under the provisions of Gujarat Slum Areas (Improvement, Clearance and Development) Act, 1973 (hereinafter, "the Slums Act").
c. The petitioners claim that within the said Slum Area, are situated their aforesaid residential premises, which are of their independent ownership, possession and residential use for the last 20-30 years. That they, except for the petitioners no. 9, 27, 31, 36, 37, 45 and 48, regularly pay their light bills to the respondent authority - Ahmedabad Municipal Corporation. And that they, except for the petitioners no. 10 & 45, regularly pay their taxes to the respondent authority - Ahmedabad Municipal Corporation.
d. That notices, dated 24.04.2025, under section 68 and rule 33 of the the Town Planning Act, have been issued by the Respondent Number 2 to the petitioners, calling upon the latter to vacate their respective residential premises, within 10 days. In the notice2, it was stated as follows:
i. That the Original Plot No 194 has been allotted Final Plot No.s 484 and 486. And vide SUG, the Final 2For illustrative purpose, the notice that was issued to Umesh Pravinbhai Makwana and Shri Jatin Pravinbhai Makwana has been referred to.Page 4 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025
NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined Plot No.s 484 and 486 have been acquired ( સંપ્રાપ્ત ) by the AMC.
ii. That the land belonging to the Original Plot No. 194 has been merged with Final Plot No. 611/1, 485. 486.
iii. That the 24.38 Meter and 12.18 Meter Road have been merged into the roads under the Town Planning Scheme.
iv. That the Town Planning Officer has laid put in stones indicating the area of the Final Plots.
v. That the area marked and denoted as A150 in the map, is in possession of the concerned petitioners No. 1 &2. The said land has been vested in the Ahmedabad Municipal Corporation and that on the same, no rights remain on the said land, either of the original owner or of any of the Petitioner No. 1 & 2.
vi. That the structures (i.e., the residences of the Petitioners), falling on the Yellow Area shown in the map (accompanying to the notice), is vested in the said Respondent Authority and it be vacated and handed over to the Ahmedabad Municipal Corporation within a period of 10 days of the receipt of this notice.
e. Apparently, the Respondent Authority had granted Page 5 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined only seven days to the Petitioners to respond to the said notices. At this stage it is clarified that where the petitioners are living on a joint property, they were given common notices.
f. In response to the aforesaid notices, the petitioners, through their advocate, issued a legal representation dated 01.05.2025, objecting to the notices and asserting protection under the Slums Act. In the said representation, There is a vague reference that an attempt is being made by using the name of Saraswati Nagar in malafide manner and that after denoting wrong house numbers, an attempt is made to wriggle the possession of these houses. It has also been stated as to what would be the alternative which would be provided by the AMC to the concerned aggrieved individuals (who are the petitioners before this Court) - i.e., an alternative property or compensation? That apart, certain other sympathetic considerations were also raised, namely, that the said individuals are uneducated persons, many of whom are senior citizens, widows etc. Page 6 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined g. That thereafter, yet another notice dated 02.05.2025, came to be issued to the petitioners, whereunder the petitioners were called for personal hearing on 06.05.2025.
h. The petitioners remained present and made their representation to the Respondent Number 2 authority. However, no action has been taken by the respondent to withdraw or stay the eviction process and that the petitioners, thus, are facing imminent evictions, without any lawful procedure having been followed. i. Post the filing of the present petition on 09.05.2025 with the Registry of this Court, but before it could be registered and before a final number could be allotted to it, it appears that, final orders dated 21.5.2025 [Annexure H (Colly) to the Petition], came to be passed by Respondent No. 2 under section 68 of the the Town Planning Act and Rule 33 of the Town Planning Rules, directing the petitioners to vacate the residential premises situated on final plot number 486, within seven days. Subsequently, on 23.5.2025, this Petition came to be Page 7 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined registered as R/SCA/7325/2025.
4. Heard, learned advocates for the parties.
5. Learned Advocate Mr. D S Gadhavi, appearing for the petitioners has submitted that the eviction notices have been invoked under section 68 and rule 33 of the the Town Planning Act, which do not override the protection granted under the special statute, namely, the Slums Act. It was submitted that this was more so when under section 17 of the Slums Area Act, no persons can initiate any execute proceedings in respect of any property situated in a declared Slum Area without the prayer permission of the Prescribed Authority. It was vehemently submitted that in the present case neither was such permission sought or granted. It was submitted that directions for issuance of summary eviction, without following the procedure under the Slums Act, including providing of a hearing, conducting enquiry and permission in terms of the provisions of the Slums Act constitute grave violation of the principles of natural justice. It was further submitted that final plot number 486 has been reserved for slum upgradation, and that, therefore also, the said plot may please be protected.
Page 8 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025
NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined
6. It was submitted that the impugned notices constitute violation of the fundamental rights of the petitioners, more particularly, the Articles 19(1)(e) and 21 of the Indian Constitution; that the impugned notices are arbitrary, illegal and liable to be quashed as a petitioners have been in continuous possession of the said land for more than 20 years, thereby establishing their lawful possession and interest over the said land / residential premises.
7. It was also submitted that the orders dated 21.05.2025, passed by the AMC, the Respondent No. 2 herein, are arbitrary mechanical and without application of mind. That the said orders are stereotyped orders, issued identically to all the petitioners without considering their individual facts circumstance or the legal protections.
8. It was thus urged that the petition be allowed.
9. On the other hand, learned Government Pleader Mr. G H Virk for the respondent no.2 and learned Asst. Government Pleader Mr. Sahil B Trivedi for the State has submitted that in Page 9 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined terms of the decisions of this Court, especially the one reported at 2009 SCC Online Gujarat 6413, being the decision in Vimlaben Ramsagar Mishra and another v. Ahmedabad Municipal Corporation, it has been stated that once a Town Planning Scheme has become final under the provisions of the Act, and the fact that the Petitioners have not challenged such Town Planning Scheme, then at the stage of implementation of such Scheme under Section 68, read with rule 33, in absence of any challenge to the Town Planning Scheme, the consequences are inevitable and the persons who are in occupation of the land are required to handover, peaceful and vacant possession of the land. It was thus, submitted that the petitioners have no case and that the present petition may kindly be dismissed. In the same vein, it was submitted, are the decisions in the case of Varahi Cooperative Housing Society Limited V. State of Gujarat reported at 2018 SCC Online Gujarat 1416 and the decision in the case of Bhupendrabhai Mathurbhai Patel v. State of Gujarat being the decision in Special Civil Application Number 16287 of 2020. It was submitted that the present petition may kindly be dismissed.
10. Having heard the learned advocate for the parties, this Page 10 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined Court proceeds to decide the present petition in terms appearing hereinafter.
11. At the outset, as is plain, the emphasis placed by the petitioners by and large on the provisions of the Slums Act, especially on section 17 of the said Act. For the ease of reference, the said provision is quoted hereinbelow:
17. Proceedings for eviction of tenants not to taken without permission of the prescribed authority.
(1) Notwithstanding anything contained in any other law for the time being in force no person shall, except with the previous permission in writing of the prescribed authority,-
(a) institute, after the commencement of this Act, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area;
or
(b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred in sub-section (1) shall make an application in writing to the prescribed authority in such form and containing such particulars as may be prescribed.
(3) On receipt of such application, the prescribed authority after giving an opportunity to the parties of being heard and Page 11 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined after making such summary enquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (4) In granting or refusing to grant permission under sub- sec. (3), the prescribed authority shall take into account the following factors, namely:-
(a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted;
(b) whether the eviction is in the interest of improvement and clearance of the slum area;
(c) such other factors, if any, as may be prescribed.
(5) Where the prescribed authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.
(6) Any person aggrieved by an order of the prescribed authority refusing grant the permission under sub-section (3) may, within such time as may be prescribed, prefer an appeal to the to State Government and the State Government may, after hearing the appellant, decide such appeal and its decision shall be final.
12. The Slums Act does not define a "tenant". It only defines an "occupier" and an "owner", respectively at Section 2(g) and 2(h) of the Slums Act. The cursory look at the said provision indicates that the term "occupier" inter alia includes the persons who, for the time being are paying or liable to pay to the owner, rent or any portion of the rent of the land or building in respect of which Page 12 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined such rent is paid or payable. It also includes the owner in occupation of or otherwise using his land and building; It further provides for inclusion of a rent-free tenant of the land or building. Similarly, the definition of owner under the Slums Act at section 2(h) over defines owner, which inter alia includes a person who is receiving or entitled to receive rent of any land or building whether on his own account or on behalf of himself and others.
13. What is thus apparent from the foregoing is that the protection, under section 17, from eviction is only afforded to a tenant, as opposed to owners or occupiers per se. Again, the protection under section 17 of the Slums Act is only from instituting proceedings for eviction of tenant. And where, in such proceedings instituted before coming into effect of the Slums Act, the tenant has already been evicted, in such case, the protection is against the execution of such decree, without requisite permission envisaged under section 17. Thus, it is plain that not every dweller, rather not every occupant or owner are protected in terms of section 17.
14. Moreover, it may be noted that any remedy available to Page 13 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined such aggrieved person, for the reason of grant or otherwise of the permission under section 17, is to approach the State Government.
15. In the present case, there is no question of any alleged proceedings taken out by the concerned owner of a land or a building against any tenant for eviction. In such circumstances, clearly, the provisions of objection 17 cannot be invoked.
16. What remains now are the authorities relied on by the State, namely Vimlaben (supra). The paragraph 7 of Vimlaben (supra), which was relied upon by the State, is quoted here in below for the ease of reference:
7. Now so far as the contention on behalf of the plaintiffs that in the draft town planning scheme properties of the appellants
- original plaintiffs were not affected and were not going under 18 meter wide town planning road and thereafter, without giving any opportunity to appellants, notice under Section 68 of the Act and Rule 33 of the Rules have been issued and therefore, same is in breach of section 19 of the Act is concerned, first of all, section 19 of the Act would not be applicable at all as it is with respect to variation in the draft development plan and not with respect to town planning scheme. It is also required to be noted that there is final planning scheme which has become final under the provisions of the Act and town planning scheme has become final after following due procedure of law i.e. after draft town planning scheme, preliminary town planning scheme and final town Page 14 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined planning scheme. At this stage it is required to be noted that appellants herein - original plaintiffs have not challenged town planning scheme which has become final. As stated above, notice under Section 68 of the Act and Rule 33 of the Rules is for implementation of the town planning scheme which has become final and the properties in question are going under 18 meter wide town planning road under the aforesaid final town planning scheme. Once town planning scheme has become final and land/properties is required for the purpose of 18 meter wide town planning road under the finalized town planning scheme, in absence of challenge to the town planning scheme, the consequences are inevitable. The persons who are in occupation of the land are required to hand over peaceful and vacant possession of the land which is needed for the purpose of implementation of the town planning scheme and the only thing which was required to be done was service of notice as contemplated under Section 68 of the Act and Rule 33 of the Rules and such notices are served upon the appellants. As the notices are in consequence of the town planning scheme which has become final the appellants have no right to continue to be in possession and occupation of the land in question which is required for the purpose of implementation of the town planning scheme, which is not challenged by the appellants. When for the purpose of implementation of the town planning scheme the notices are issued upon the appellants as contemplated under Section 68 of the Act and Rule 33 of the Rules and the appellants are called upon to hand over peaceful and vacant possession of the land in question, it cannot be said that the action of the respondent is in any way illegal and/or contrary to the provisions of the Act.
17. Undisputedly, the Town Planning Scheme has become final after following due process of law. There is no challenge to the said Scheme. In the circumstances, notice under section 68, read with rule 33 is inevitable, rather a procedural consequence Page 15 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined and on receipt of the same, the petitioners are required to handover vacant and peaceful possession, as called for under the notice. That being the legal position, it cannot be stated that the petitioners' case has any merits on this count. The other case laws relied on by the State are following the same dictum of law, and that therefore, without adverting to them, it may be noted that the same do not support the stand taken by petitioners in the present petition. Thus the question of quashing and setting aside the impugned order dated 21.05.2025 (Annexure-H of the Petition) does not arise.
18. In so far as argument of the learned advocate for the petitioner that the final plot number 486 having been reserved for slum upgradation, the learned advocate for the State had made a categorical statement before this Court that the said final plot 486 shall not be disturbed to the extent that it is not overlapping over 24.38 m or the 12.19 m TP Scheme Road; and that anything beyond such road line, the said area reserved for slum upgradation, is not going to be disturbed. It was also the statement of the learned advocate of the State that the parties forming part of final plot number 486 have been surveyed and that they may even be given alternate accommodation, if they Page 16 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined qualify under the Slums Act. Liberty is thus reserved in favour of the petitioners in respect of agitating their cause for upgradation of the slums, for which the petitioners may approach the competent authority.
19. Subject to the liberty reserved as aforesaid, there being no merits in the present petition, it is hereby disposed of as rejected.
(J. L. ODEDRA, J) Further Orders:
1. After pronouncement of this judgment, the learned advocate for the petitioners has prayed that the Judgment be stayed for a period of ten days so as to enable them to approach appellate forum.
2. On the other hand, the learned Asst. Government Pleader Mr. Sahil Trivedi for the State and Mr. Jagat Shah for Mr. S H Virk appearing for the respondent no.2 has submitted that the road in question insofar as the present petition i.e., 24.38 meters or 12.19 meters road has been cleared, except for the portion Page 17 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025 NEUTRAL CITATION C/SCA/7325/2025 CAV JUDGMENT DATED: 26/09/2025 undefined where the plots or premises of the petitioners are concerned;
that staying the Judgment of this petition at this stage, would result in unimaginable hardships in implementing the Final Scheme.
3. Having heard the both sides on the question of staying this Judgment, this Court has come to a conclusion to not stay the same, more so when the applicable case-laws, more particularly, the judgment in the case of Vimlaben Ramsagar Mishra and Anr. Vs. Ahmedabad Municipal Corporation reported at 2009 SCC Online Gujarat 6413 has categorically held that Notice under Section 68 read with Rule 33 are the inevitable consequence upon finalization of a TP Scheme and upon the finalization, the recipient of Notice under Section 68 (read with Rule 33) has no option but to hand over vacant and peaceful possession of the area comprised in such Notice.
4. In view of the aforesaid, as indicated hereinabove, this Court hereby rejects the request for stay of this Judgment.
(J. L. ODEDRA, J) JIGAR J RABARI Page 18 of 18 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Fri Sep 26 2025 Downloaded on : Sat Oct 04 07:46:05 IST 2025