Chandanmala Ajaybhai Padvi vs State Of Gujarat
2021 Latest Caselaw 5440 Guj

       C/SCA/16438/2020                                              CAV JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 16438 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

======================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the judgment ?

4     Whether this case involves a substantial question of law as to the

interpretation of the Constitution of India or any order made thereunder ?

====================================== CHANDANMALA AJAYBHAI PADVI Versus STATE OF GUJARAT ====================================== Appearance:

MR KUNAL S SHAH(5282) for the Petitioner(s) No. 1 for the Respondent(s) No. 2,3,4 MR. K.M. ANTANI, AGP PP(99) for the Respondent(s) No. 1 ======================================

CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 07/05/2021

CAV JUDGMENT

Heard learned advocate Mr. B.A. Surti appearing for the petitioner and learned Assistant Government Pleader Mr. K.M. Antani for the respondent - State through video conference.

1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. K.M. Antani waives service of notice of rule on behalf of the respondent - State. By consent of both the learned advocates for the parties, matters are taken­up for final hearing.

2. By this petition, under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

               "a.       To admit and allow this petition;

               b.    To quash and set aside the Notification

No.KV/46 of 2020/SMN/902019/9933/P dated 18­6­2020 at Annexure­A as being illegal, unconstitutional and unsustainable in eye of law qua the inclusion of the villages falling within the area of Khator Gram Panchayat as mentioned in Schedule­2 of the Notification which figures at Sr. No.21 and Also the impugned order No. SMN/902020/HC­98/P dated 15­10­2020 passed by the respondent no.2 at Annexure­B;

c. Pending admission, hearing and final disposal of this petition, be pleased to restore the position ante with respect to Khator Gram Panchayat and hand over the same to its members, in the interest of villagers;

d. Pending admission, hearing and final disposal of this petition, be pleased to stay the impugned Notification No.KV/46 of 2020/SMN/902019/9933/P dated 18­6­2020 at Annexure­A and the impugned order No.SMN/902020/HC­98/P dated 15­10­2020 passed by the respondent no.2 at Annexure­B;

e. Pass any such other and/or further orders

that may be thought just and proper, in the facts and circumstances of the present case."

3. The petitioner is resident of Khator Village situated in Surat District. The petitioner is an Ex­sarpanch of Khator Gram Panchayat and has filed this petition in his individual capacity and on behalf of the villagers of the Khator village.

3.1 It is the case of the petitioner that the villages falling in the area of Khator Gram Panchayat have already been well developed by the Gram Panchayat having infrastructures for the benefit of villagers including tar roads, drainage lines, water supply etc.

3.2 It is the case of the petitioner that 80% of the area of Khator village is covered in the green zone having various agriculture lands situated in the area. It is the case of the petitioner that there was no occasion for the respondent to include the Khator village within the limits of Municipal Corporation, Surat.

3.3 The petitioner made a representation on 23rd June, 2020 to the respondent authorities objecting the Notification dated 18th June, 2020 issued by the State Government including the village of the petitioner within the limits of the Surat Municipal Corporation under Article 243Q of the Constitution of India. The petitioner thereafter, filed Special Civil Application no.8399 of 2020, which was disposed of by this Court vide order dated 26th August, 2020 directing the respondent authorities to decide the representation of the petitioner and all other points as canvassed by the petitioner after affording an opportunity of hearing and take appropriate decision.

3.4 Accordingly, the hearing was given to the petitioner by the

Additional Chief Secretary, Urban Development and Urban Housing Department on 29th September, 2020 and detail order was passed on 15th October, 2020 rejecting such representation. The petitioner being aggrieved by such order has approached this Court.

4. Learned advocate Mr. B.A. Surti appearing for the petitioner submitted that the main grievance of the petitioner is similar to the grievances raised before this Court in Special Civil Application no.7002 of 2020 and allied matters and by order dated 6th January, 2021 passed by this Court, this petition was ordered to be heard with Special Civil Application no.7002 of 2020 and allied matters. Accordingly, this petition was heard on 11th January, 2021 along with the aforesaid matters. Learned advocate Mr. Surti submitted that he adopts the arguments and submissions made in the aforesaid group of matters by the learned advocates. Reliance was placed on the decision of the Supreme Court in case of Champalal Vs. State of Rajasthan and others, reported in 2018 (16) SCC 356 to submit that as per the provisions of Article 243Q(2) of the Constitution of India the Governor is not free to notify "AREAS" in his absolute discretion but is required to fix the parameters necessary to determine whether particular AREA is a transitional area or a smaller urban area or a large urban area with due regard to the factors mentioned in the said article. It was submitted that the Apex Court has held that the parameters must be uniform for the entire State and it is only after determination of the parameters, various municipal bodies contemplated under Article 243Q(1) could be constituted.

5. On perusal of the impugned order dated 15th October, 2020 passed by the Additional Chief Secretary of Urban Development and Urban Housing Department, State of Gujarat at Annexure­D to

the petition, it is not in dispute that all the factors, which are prescribed in the Article 243Q are considered by the authorities and after effective consultation, the impugned Notification dated 18th June, 2020 was issued by including the limits of Khator Gram Panchayat within the limits of Surat Municipal Corporation. The opportunity of hearing was also granted to the petitioner pursuant to the order passed by this Court. Moreover, similar Notification dated 18th June, 2020 issued in respect of the Vadodara Municipal Corporation is not interfered with by this Court in similar matters being Special Civil Application no.7002 of 2020 and other allied matters by order of the even date, the said petitions are dismissed.

6. Following the reasons given in the order of the said matters, this petition is also dismissed. Rule is discharged.

(BHARGAV D. KARIA, J.) AMAR RATHOD...