Mohammad Saeed Kajimuddin Shaikh vs State Of Gujarat
2023 Latest Caselaw 1443 Guj

     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.

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."

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.

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:

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

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