Gujarat High Court
Mohmmad Sarifvisad Purvala vs Ahmedabad Municipal Corporation on 24 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2374 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2257 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2259 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2291 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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Approved for Reporting Yes No
Yes
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MOHMMAD SARIFVISAD PURVALA & ORS.
Versus
AHMEDABAD MUNICIPAL CORPORATION & ORS.
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MR S.I. NANAVATI, SENIOR ADVOCATE with
MS HETVI H SANCHETI (5618) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,3
2,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,6,7,8,9
MR G H VIRK (7392) for the Respondent(s) No. 1
MR SIMRANJITSINGH H VIRK (11607) for the Respondent(s) No. 1
MR SAHIL TRIVEDI for the Respondent Nos.2 and 3.
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/07/2025
ORAL JUDGMENT
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1. Captioned writ petitions are filed seeking to quash and set
aside execution and implementation of the notices issued by
respondent Nos.1, 2 and 3, dated 11.01.2021; whereby the
petitioners were directed to vacate their respective dwelling units
within a period of four days, failing which, action in accordance
with Law has been indicated. Respondent No.1 herein is
Ahmedabad Municipal Corporation, Respondent No.2 is
Commissioner of Police, Ahmedabad and Respondent No.3 is Police
Inspector, Jamalpur, Ahmedabad. It is also further prayed that
respondents may be directed to provide Legal Security of
Tenure/Right to Adequate Housing recognized under Article 11 of
International Covenant on Economic, Social and Cultural Rights and
other rights narrated in Part III of Constitution of India. The prayer
with regard to decision on representation of the petitioners is also
made. From earlier orders dated 17.02.2021, 13.03.2021, 15.03.2021
and 23.03.2021 in the captioned writ petitions, it is noticed that
after filing of these petitions, time was sought either by petitioners'
advocate or by respondents' advocate however, till date no notice
has been issued in these cases. Thereafter, urgent circulation was
sought submitting that a coercive action by demolition of properties
of the petitioners, situated at Rangwala Challi, now known as
"Shana Apartment" situated at Rangwali Chali, Purbiyawa, Astodia
Kot ni rang, Jamalpur, Ahmedabad (hereinafter referred to as
'property in question') has started by demolishing 6th floor and
onwards and, therefore, this petition may be heard on priority
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basis. Considering the request, these petitions were taken up for
hearing on 15.07.2025.
2. Rule returnable forthwith. Learned advocate Mr. G.H.Virk
waives service of rule on behalf of respondent No.1 and learned
AGP Mr.Sahil Trivedi waives service of rule on behalf of respondent
Nos.2 and 3.
3. For the sake of convenience, facts referred in Special Civil
Application No.2374 of 2021 are considered for adjudication of all
petitions. All these petitions, challenge the notices issued to
respective petitioners dated 11.01.2021, whereby, they have been
directed to vacate the property in question.
4. Facts in brief as referred in the petition are as under:
4.1. The petitioners herein are residents of Rangwala Chali,
Jamalpur Area, Ahmedabad; for more than 50 years as
tenants/owners, belonging to poor strata of the society. All the
petitioners are either unorganized labourer, fruits and vegetable
vendors, drivers, rickshaw pullers, daily wagers, foremen, butchers,
ac-repairers or small shop owners etc. The petitioners along with
their families totaling to more than 250 to 300 people are currently
residing in redeveloped Rangwala Challi, now known as "Shana
Apartment" situated at Rangwali Chali, Purbiyawa, Astodia Kot ni
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rang, Jamalpur, Ahmedabad (hereinafter referred to as 'property in
question'). It is case of the petitioners that the property in question
was in extremely dilapidated condition and on account of its
dilapidated condition, notices from Corporation were issued to
vacate the same. At that time, the tenants occupying the property
were not sure of their possession if they had decided to vacate their
respective dwelling units, hence they had filed a suit seeking
restrain orders that original owners may not sell the properties to
the developer, for redevelopment. However, upon a compromise
having been arrived at between the parties, the suit was withdrawn.
The petitioners withdrew the suit upon assurance given by the
developer of giving them the possession of their dwelling units back
at no additional cost. Accordingly, sale deeds were executed
between the petitioners and the developer and therefore petitioners
are owners of the property in question having registered sale deed
in their favour. Despite that, notices dated 11.01.2021, were issued
by respondent - Corporation, wherein the petitioners were directed
to vacate the property in question on account of the un-authorized
construction. Petitioners contend that they are owners of the
property in question, however, they are not aware about whether
the developer constructed the property without development
permission. Since the petitioners are from poor strata of the society,
it would be difficult for them to catch hold of the developer who
had cheated them and if the property in question is demolished on
account of unauthorised construction, the petitioners would be
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rendered homeless and their survival would be difficult. Therefore,
these notices are required to be quashed and set aside. It is also
case of the petitioners that they have the 'Right to Adequate
Housing and Legal Right to Secure Tenure' as guaranteed under the
Constitution of India and therefore, also the notice dispossessing the
petitioners from their property deserves to be quashed and set
aside.
5. Heard learned senior advocate Mr. Sudhir I. Nanavati assisted
by learned advocate Ms. Hetvi Sancheti for the petitioners, learned
advocate Mr. G.H. Virk for the respondent No.1 - Corporation and
learned AGP Mr. Sahil Trivedi for respondent Nos.2 and 3.
6. Since the issue involved in all these petitions is common,
challenging the Notice dated 11.01.2021, with the consent of
learned advocates appearing for respective parties, these petitions
are taken up for final hearing.
7. Learned senior advocate Mr. Nanavati for the petitioners
submitted that as referred in the facts, earlier H.R.P. Suit No. 40 of
2019 (Annexure-C- page 99) was filed by the tenants of Rangwali
Chali, seeking to restrain original purchaser (developer) from
directing the petitioners to vacate the property in question.
Thereafter, H.R.P. Suit No. 40 of 2019 was withdrawn and
compromise pursis dated 21.02.2019 was filed (page 102). The sale
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deeds were executed between the parties. The petitioners herein are
parties to the Sale deeds and they being owner of the property in
question, were served with the notices on 11.01.2021 directing
them to vacate their respective property which is subject matter of
present petitions. Learned senior advocate submitted that the said
notices refer to unauthorised construction however, the petitioners
were not aware about the unauthorised construction done by the
developer and for the fault of the developer, they may not be
penalized. Moreover, the petitioners are in possession of the
property in question and therefore they made applications under
Gujarat Regularization of Aunauthorised Development Act, 2022
("GRUDA, 2022" for short) in the year 2025 and the same were
rejected. Against rejection of GRUDA application order, appeal is
provided under GRUDA -2022 Act and till the appeal gets decided
in accordance with law, the notice dated 11.01.2021 may not be
acted upon. Moreover, the developer by an application dated
05.03.2025 has applied for permission for construction to the
National Monument Authority as per the provisions of Ancient
Monuments and Archaeological Sites and Remains Act, 1958
("AMASR Act, 1958) and the said application is still not decided by
the National Monument Authority and till the application under
AMASR Act, 1958, gets decided, the notice dated 11.01.2021 may
not be acted upon.
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7.1. Learned senior advocate Mr. Nanavati submitted that since the
property in question is within the radius of 300 meters of ancient
monument and under the provisions of AMASR Act,1958, the height
beyond 18 meters is not permissible. In this case, construction done
over and above 18 meters height has been demolished, therefore,
the petitioners' properties may not be further demolished more
particularly, in view of pending application before the Central
Government authority under the AMASR Act, 1958.
7.2. Learned senior advocate in the alternative submitted that the
ownership of the land is not in question, and therefore, since the
petitioners are owners of the property in question, at least
reasonable time of three to four months may be provided to vacate
the property in question. Learned senior advocate thus submitted
that these petitions deserve consideration by appropriately directing
the respondent - Corporation not to act upon the notices dated
11.01.2021 by taking coercive action.
7.3. Learned senior advocate Mr. Nanavati in relation to breach of
principles of natural justice has relied upon the decision of the
Hon'ble Supreme Court in the case of Ahmedabad Municipal
Corporation vs. Nawab Khan Gulab Khan and Ors. r eported in
(1997) 11 SCC 121.
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8. Opposing the petition, learned advocate Mr.G.H.Virk for the
respondent - Corporation submitted that the notice dated
11.01.2021 at page 27 refers to earlier notice dated 11.09.2019,
issued under Section 267 of the Gujarat Provincial Municipal
Corporation Act, 1949 (GPMC Act). Under notice dated 11.09.2019,
the petitioners were informed not to carry out constructions. Thus,
the restrain order for further construction of property in question is
evident from the notice dated 11.09.2019. The notice dated
11.09.2019 was followed by another notice dated 18.09.2019 under
Section 260 (1) of the GPMC Act and an order dated 10.10.2019
under Section 260(2) of the GPMC Act. Despite that, since the
petitioners have continued with the construction that too without
permission, sealing orders dated 02.09.2019, 15.09.2019 and
24.09.2019 were passed and the property in question were sealed.
However, the petitioners broke open the seal and started using the
property which was informed to the police on 11.08.2020. Thus,
the conduct of the petitioners is not bonafide. Thereafter, the notice
dated 11.01.2021 (impugned in the petition) was issued. After
issuance of the notice, the petitioners responded to the notice dated
11.01.2021 by its reply dated 31.01.2021 (page 92). In the reply it
was stated that since the officers of the Corporation were
threatening to vacate the property in question for demolition of
constructed building, the petitioners were compelled to prefer Civil
Suit seeking injunction against the Corporation. However, the said
Civil Suit was withdrawn, therefore, the contention raised of
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pendency of suit is of no consequence. Thus, there is nothing to
support that the property in question was duly constructed after
obtaining development permission. Thus, since the construction of
the property in question was unauthorised, notices dated
11.01.2021, were issued and there is no illegality in the same.
8.1. Further, the reliance placed on application preferred under
the provisions of GRUDA, 2022 on 19.02.2025 is also of no
consequence because the said applications were rejected by
respondent Corporation by order dated 01.03.2025, on the ground
that property in question is situated within radius of 300 meters of
protected monument. The aspect of property in question located
within radius of 300 meters of protected monument (in this case
187.19 meters) is not in dispute and also evident from an
application filed by the developer seeking permission under Ancient
Monuments and Archaeological Sites and Remains Act, 1958
(AMASR Act). Therefore, the rejection of GRUDA 2022, by applying
Section 8(2)(f) of GRUDA, 2022, is appropriate. When the GRUDA
application is rejected as it falls in exception clause, filing of appeal
challenging that order is inconsequential.
8.2. Further, the contention raised in the petition that the
developer had cheated the petitioners as they were not aware about
unauthorized construction is also not believable because the
developer - Salimkhan Jummakhan Pathan filed an application
under Ancient Monuments and Archaeological Sites and Remains
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Act, 1958 on 05.03.2025, and the said application is available to
the petitioners. Therefore, the petitions being devoid of merits
deserves rejection.
9. Learned advocate Mr.Virk relied upon the following decisions
in the case of (i) Kaachni Masjid Trust vs. State of Gujarat & Ors.
In Special Civil Application No.410 of 2025 dated 09.01.2025
(Paragraph Nos.7.3, 7.5, 7.6, 7.8, 7.9) and (ii) in the case of Kaniz
Ahmed vs. Sabuddin and Ors. reported in 2025 SCC Online SC 995
to submit that strict compliance is required of the Act for removal
of the un-authorized construction.
10. Considered the submissions and decisions relied upon. At the
outset, it is noticed that though the petitions are filed in the year
2021 challenging the Notices dated 11.01.2021 issued to respective
petitioners, directing them to vacate the property in question, till
date no efforts are made for hearing of these petitions. Even no
notice till date has been issued. Further, the impugned Notices
dated 11.01.2021, refers to earlier Notice dated 11.09.2019
(Annexure "A" Page-161 of the reply) informing the petitioners that
construction of the property in question is without development
permission and therefore to be stopped with immediate effect. The
notice dated 11.09.2019 (Annexure "A" Page 161 to the reply), was
also forwarded to the concerned Police Inspector for its service and
accordingly, it was served.
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11. Thereafter, Notice dated 18.09.2019 under section 260(1) of
GPMC Act was issued to the petitioners calling for their explanation
and a hearing was also fixed on 20.09.2019 at 3:30 pm (Page-163).
Notice under section 260(1) dated 18.09.2019 was followed by an
order dated 10.10.2019 under section 260(2) of GPMC Act. In the
order under section 260(2) of GPMC Act, the reason to remove
unauthorised construction was mentioned. From the reasons stated,
it is evident that the petitioners were informed that construction
was done without any development permission. Though time was
granted to produce documents justifying their construction, no
documents were produced by the petitioners. Moreover, vide Notice
dated 11.09.2011, under Section 267 of the GPMC Act, the
petitioners were restrained from further construction however, they
continued with the same. Therefore, the unauthorized construction
of the property in question without development permission resulted
into order dated 24.09.2019, of seal of property in question. The
order of seal dated 24.09.2029, was followed by two other orders of
placing seal dated 15.10.2019 and 02.09.2020. As evident from the
record, the petitioners did not challenge the orders of sealing the
property in question and therefore, action was initiated by
communication dated 16.11.2019 and 13.11.2019 informing
Gaekwad Haveli Police Station seeking police assistance for
demolition work. It appears that despite that, the work of
demolition could not be effected on account of COVID 19 pandemic
and therefore at this stage to accept the contention on behalf of
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petitioners that action taken of issuing notices dated 11.01.2021 is
beyond the provisions of the GPMC Act does not appeal to this
Court and is hence rejected.
12. In respect to the contention that petitioners were not aware
about the construction done by developer without prior permission,
it is noticed that impugned Notices were issued in the year 2021,
however, no proceedings have been initiated by the petitioners
against the developer. The ground raised of filing of suit also is
of no help because it was withdrawn by the petitioners. Thus, it
was a conscious decision by the petitioners to agree to the
settlement and to withdraw the Suit. The compromise purshis
dated 21.02.2019 is on record. Further, another Civil Suit No.1167
of 2020 was also dismissed on 04.08.2022, under Order 7 Rule 11
of CPC. Therefore, at this stage no proceedings are pending
restraining the respondent- Corporation to refrain from acting upon
the Notice dated 11.01.2021.
13. One more aspect which needs consideration is that, though
the Notice dated 11.01.2021 was served and petition was filed in
the year 2021, an application under GRUDA-2022, seeking
regularization of unauthorized construction was filed only on
19.02.2025. The said application was rejected by an order dated
01.03.2025 on the ground that property in question is situated
within the radius of 300 meters of protected Monument. Further,
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property in question is situated within radius of 300 meters of
protected Monuments is a fact and therefore, the developer has
filed an application dated 05.03.2025, before the authority under
The Ancient Monuments and Archaeological Sites and Remains Act,
1958 (for short "The AMASRA Act, 1958").
14. At this stage it is apposite to refer section 8(2) of GRUDA-
2022; which provides for the cases in which the Designated
Authority shall not regularize unauthorised development, which
reads as under:
"8(2) The Designated Authority shall not regularise
unauthorised development in respect of the following
matters, namely: -
(a) where the permissible FSI (Floor Space Index) in a zone
is less than 1.0;
(b) where FSI consumed in other than residential use, is
more than fifty percent of the maximum permissible FSI
as per CGDCR;
(c) where projections are beyond the plot boundary;
(d) where the change of use which in the opinion of the
Designated Authority may cause danger to health or
lead to health and safety hazard;
(e) where the unauthorised development falls under the
alignment of means of water supply, drainage,
sewerage, supply of electricity or gas or of any other
public utility service; and
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(f) Such unauthorised development which the State
Government may, prescribe."
15. Therefore, undisputedly, since the property in question is
situated within 300 meters of Protected Monument, the case of the
petitioners would fall under Section 8(2) of GRUDA-2022, where
regularization of unauthorised construction is not permissible. Once
the regularization is prohibited under the Act, filing of appeal is of
no help to the petitioners. Further, mandatory permission of
National Monuments Authority under AMASRA Act 1958, prior to
construction is also missing here and the application at this stage
on 05.03.2025, filed by the developer appears to be an afterthought
and to frustrate the further proceedings. The application filed by
the developer to National Monuments Authority under AMASRA Act
1958, forming part of record creates doubt on the relationship of
petitioners and developer.
16. Further, Section 19 of AMASRA Act, 1958, provides
restrictions on enjoyment of property rights in protected areas.
Section 20B of AMASRA Act 1958, provides for regulated area in
respect of every protected monument. Section 20C of AMASRA Act,
1958, provides for applications for repair or renovation in
prohibited area, or construction or re-construction or repair or
renovation in regulated area. If these provisions are read with
section 2(j) of GRUDA-2022, the designated authority is not
empowered to regularize the unauthorized development, if the same
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is prescribed "unauthorised development" by the Government. In
these cases, since property in question is situated within the radius
of 300 meters of protected Monument, which is not disputed by the
petitioners, for which no permission of construction is permissible,
therefore, pendency of appeal as contended by the petitioners,
would not have any assistance. The other documents relied upon by
the respondents against the developer inter alia the criminal
proceedings are not referred herein since they are not relevant for
the subject matter.
17. Moreover, the Hon'ble Supreme Court in the case of Kaniz
Ahmed V/s. Sabuddin and others reported in 2025 SCC OnLine SC
995, has held that each and every construction must be made
scrupulously following and strictly adhering to the Rules and
Regulations. In the event of any violation, being brought to the
notice of the courts, the same should be dealt with iron hands and
any leniency or mercy shown to the person guilty of unauthorised
construction would amount to showing misplaced sympathy.
18. Moreover, as observed by the Hon'ble Supreme Court in the
very decision, that a person, who has no regards for the law cannot
be permitted to pray for regularization after putting up
unauthorised construction of two floors. This has something to do
with the rule of law. Unauthorized construction has to be
demolished. There is no way out. Judicial discretion would be
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guided by expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law.
19. Thus, if the facts of these cases are compared, it would not
be out of place to observe that the petitioners have taken the Law
in their hands. Despite earlier intimation under notice dated
1109.2019, to stop the construction they continued with
construction breaching the directions. Thereafter, the seal put by
the respondents was broken and without challenge to the sealing
order, they started using the property in question; without Building
Use permission. Thus, once again they breached the directions.
Further, despite alleging that developer had cheated and constructed
their units without prior permission, till date no action is initiated
against developer. Therefore, in the opinion of this Court, the
citizen who has no regards to law, is not entitled to seek any relief
under Law, and in this case, it would amount to misplaced
sympathy.
20. In the opinion of this Court that the decision relied upon by
learned Senior Advocate Mr. S.I. Nanavati in the case of
Ahmedabad Municipal Corporation V/s. Nawab Khan Gulab Khan
and others reported in (1997)11 SCC 121, would not be applicable
in these cases because in the decision relied upon, the issue was
with regard to opportunity of hearing not granted before passing
the order, and the same is not the case here, the said decision
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would not applicable to the facts of the present case.
21. In view of afore-stated reasons this Court does not find any
merits in the petitions and the same are rejected. Rule discharged.
No costs. Civil Application (s) if any also stands disposed of.
22. The alternative prayer of providing three months' time to
vacate the property in question is also rejected.
(MAUNA M. BHATT,J)
NAIR SMITA V./13
