Gujarat High Court
Modi Nareshkumar Ramanlal vs State Of Gujarat on 25 January, 2021
Bench: Bhargav D. Karia
C/SCA/1284/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1284 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1281 of 2021
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MODI NARESHKUMAR RAMANLAL
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 2
MR ISHAN JOSHI AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 25/01/2021
ORAL ORDER
Heard learned advocate Mr. Jigar Gadhavi for the
petitioners and learned Assistant Government Pleader
Mr. Ishan Joshi for the respondentState through
video conference.
1. Since the issues involved in both the petitions
are common, they have been heard together and
would be disposed of by this common order.
2. For the sake of convenience, prayers made in
Special Civil Application No.1284/2021 are
reproduced hereinbelow :
"(A) Your Lordships may be pleased to issue writ
of mandamus and/or any other writ, order or
direction in the nature of mandamus quashing and
C/SCA/1284/2021 ORDER
setting aside the notice dated 30.12.2020 issued
by the respondent no.2 (AnnexureA).
(B) Pending admission, hearing and final
disposal of the present petition the Honourable
Court may be pleased to stay the further
operation, implementation and execution of the
notice dated 30.12.2020 passed by respondent
no.2 (AnnexureA).
(C) To pass such other further order as deemed
fit in the facts and circumstances of the case."
3. Facts are identical in both the petitions and
therefore, facts are recorded from Special Civil
Application No.1284/2021 which are as under :
3.1) The petitioners are having shop of ready
made garments in the Visnagar town within the
Visnagar Municipality in City Survey No. 140 and
are running shop in the name of Nilkanth at Maya
Bazar.
3.2) It is the case of the petitioners that
earlier application was made to the Municipality
by some third party to take action against the
petitioners for illegal encroachment and
pursuant thereto notices were issued to the
petitioners which were replied to by the
petitioners.
3.3) It is the case of the petitioners that the
petitioners have challenged such notices by
preferring Regular Civil Suit No. 54/2019 and
Regular Civil Suit No. 53/2019 before the Court
C/SCA/1284/2021 ORDER
of Principal Senior Civil Judge at Visnagar
along with injunction application which are
pending before the said Court. It is the case of
the petitioners that during the pendency of the
Civil Suit, impugned notice dated 30.12.2020
came to be issued by respondent no.2 and
therefore, being aggrieved by the same, the
petitioners have preferred the present petitions
with the aforesaid prayers.
4. Learned advocate Mr. Gadhavi states that the
impugned notices are issued by the respondent
Nagar Palika for failure of complying with the
earlier notices by the petitioners.
5. From the materials on record, it appears that
the earlier notices are already challenged by
the petitioners by filing Regular Civil Suit
No.53/2019 and Regular Civil Suit No.54/2019 in
the Court of Senior Civil Judge at Visnagar and
the Court is seized of the matter with regard to
earlier notices. The impugned notices are issued
for not complying with earlier notices.
Therefore, impugned notice is in continuance and
consequential to the earlier notices.
6. Earlier notices which were issued by the Nagar
Palika are not placed on record. Moreover, what
orders are passed by the Civil Court are also
not placed on record. Learned advocate Mr.
Gadhvi submitted that the petitioners have filed
C/SCA/1284/2021 ORDER
an online application for permission before the
Urban Development Authority. Mr. Gadhavi relied
upon the decision of this Court in case of
Jiteshkumar Kanchanlal Gandhi v/. State of
Gujarat reported in 2020(1) GLH (UJ) 5 to point
out that without giving an opportunity of
hearing to the petitioners, respondent Nagar
Palika cannot seal the premises under section 36
of the Gujarat Urban Town Planning and Urban
Development Act, 1976.
7. Having gone through the aforesaid judgment, it
appears that the said judgment was under the
provisions of Gujarat Town Planning and Urban
Development Act, 1976. In absence of earlier
notices issued by the respondent Nagar Palika
being placed on record, it is difficult to know
as to under which provisions of the Act, earlier
notices were issued. On perusal of the averments
made in the memo of the plaint which is placed
on record, it appears that notices dated
20.9.2018, 30.11.2018 and 31.7.2019 were issued
by respondent Nagar Palika but in the entire
plaint under which provisions of law such
notices were issued is not stated. In such
circumstances, it is not possible to apply the
judgment relied upon by the learned advocate for
the petitioners in facts of the case.
8. In view of aforesaid facts and circumstances,
the petitions being devoid of any merit, as the
C/SCA/1284/2021 ORDER
matter is subjudice before the Civil Court and
as the petitioners have already availed
alternative remedy, no interference is required
to be made in exercise of writ jurisdiction. The
petitions are accordingly dismissed.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
