Gujarat High Court
Ravjibhai Nathabhai Ghevariya vs State Of Gujarat on 10 July, 2025
NEUTRAL CITATION
C/SCA/9805/2024 JUDGMENT DATED: 10/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9805 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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RAVJIBHAI NATHABHAI GHEVARIYA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ADITYA T PANCHOLI(13067) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
MS POOJA CHOUDHARY, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 10/07/2025
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Ms.Pooja
Choudhary waives service of Rule on behalf of respondent No.1
and learned advocate Mr.Kaushal Pandya waives service of
Rule on behalf of respondent Nos.2 and 3.
2. This petition is filed challenging the Notices dated
19.10.2023, 20.10.2023 and 26.10.2023 (Annexure "A" Page-
20 to 36), issued under section 48-A,67 and 68 of Gujarat
Town Planning and Urban Development Act, 1976 ("TP Act"
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for short) read with Rule 33 of Gujarat Town Planning and
Urban Development Rules, whereby the petitioners are directed
to give peaceful and vacant possession of subject premises,
failing which appropriate action under the provisions of the TP
Act has been indicated.
3. It is further prayed that respondents- Corporation may be
directed to reconsider the Preliminary Town Planning Scheme
No.3 (Karanj) by varying it qua revenue survey No.38 and
Final Plot No.83 of Village: Karanj, as provided under sections
70 and 71 of the Act. Thus, variation in sanctioned
Preliminary Town Planning Scheme qua petitioners' property is
also prayed.
4. Brief facts referred in the petition, are as under:
4.1 The petitioners herein are residents of Javaharnagar
society situated at Karanj, District: Surat. The premises, on
which the petitioners are residing, fall within the limit of Surat
Municipal Corporation. It is case of the petitioners that the
said premises were constructed prior to intention of Town
Planning Scheme No.3 (Karanj). The Corporation declared
intention of Draft Town Planning Scheme No.3 (Karanj), vide
publication dated 02.09.1978.
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4.2 Thereafter, Draft Town Planning Scheme No.3 (Karanj)
was sanctioned by Notification dated 29.06.1983. Upon
sanctioning of Draft Town Planning Scheme No.3, the same
was sent for approval of the State Government on 04.05.1991
and thereafter the State Government Sanctioned the
Preliminary Town Planning Scheme vide its Notification dated
14.07.1993, with effect from 16.08.1993. The Final Town
Planning Scheme No.3 (Karanj) was sanctioned on 09.09.1997.
It is case of the petitioners that prior thereto, no Notices were
served to the petitioners for their alleged unauthorized
construction on Creek 'Khadi' land. The petitioners are in
possession of the said premises and paying property taxes to
the Municipal Corporation since long. Therefore, aggrieved by
the Notices, this petition is filed.
5. Heard learned advocate Mr.Aditya Pancholi for the
petitioners, learned AGP Ms.Pooja Choudhary for the
respondent No.1 and learned advocate Mr.Kaushal Pandya for
respondent Nos.2 and 3.
6. Learned advocate for the petitioner submitted that since
the procedure as provided under the Act was not followed
prior to the sanctioning of Preliminary Town Planning Scheme
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No.3 (Karanj) vide Notification dated 14.07.1993, the entire
Town Planning Scheme deserves to be quashed and set-aside.
6.1 Further, the action taken under the provisions of T.P. Act
is bad in law and if any action is required to be initiated,
than it ought to have been initiated under the provisions of
The Gujarat Public Premises Eviction of Unauthorized
Occupants Act 1972, therefore Notice deserves to be quashed
and set aside.
6.2 Further, though the petitioners are owners of subject
premises, they do not have sale deed in their favour, however,
the respondent- corporation had erred in not recognizing
possession (kabja) receipt, which the petitioners have produced.
For their long continuous occupation on the subject land,
learned advocate for the petitioners relied upon property tax
bills, electricity bills and other taxes paid to Municipal
corporation.
6.3 Learned advocate for the petitioners submitted that till
date affidavit is not filed by the State stating that the land in
question for which the Notices were issued, is ' Khadi' land.
Without any demarcation done by the State and without any
evidence, respondent- Corporation in its reply has stated that
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land on which the premises of the petitioners are situated is
'Khadi' land and there is encroachment on 'Khadi' land. Thus,
the encroachment is mere allegation. Therefore, the Notices
issued deserve to be quashed and set aside.
6.4 Learned advocate further submitted that since the
petitioners are coming from poor strata of the society, having
their residential premises on alleged 'Khadi' land, and if no
variation is considered, they would render homeless.
Therefore, Corporation may be directed to send proposal for
variation of Town Planning Scheme No.3 (Karanj), to the State
Government and State Government may further be directed to
appropriately considered the same for variation of Town
Planning Scheme No.3 (Karanj) for revenue survey No.38 and
Final Plot No.83.
6.5 Learned advocate submitted that thus the petition
deserves consideration by directing the State Government to
consider the application of the petitioners seeking variation. In
support, learned advocate relied upon order of this court dated
27.10.2023 passed in Special Civil Application No.19105 of
2023, wherein stay against coercive action has been granted by
this court, at the time of Notice.
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6.6 Moreover, premises in question is the source of livelihood
of the petitioners and if residences of the petitioners got
demolished, they would face tremendous hardship and
therefore in the alternative, appropriate compensation may be
directed to be paid to the petitioners.
7. Opposing the petition, learned advocate Mr.Kaushal
Pandya for respondent Nos.2 and 3 - Surat Municipal
Corporation by placing reliance on affidavit-in-reply dated
29.07.2024 submitted that by way of this petition, the
petitioners have challenged the Notice dated 19.10.2023 under
which, they have been directed to vacate the premises. The
petitioners have also prayed to quash and set aside Notification
dated 09.07.1997 of State Government sanctioning the Final
Town Planning Scheme No.3 (Karanj) qua Final Plot No.83. It
may be considered that Surat Municipal Corporation is
implementing the project called "Remodeling and
Reconstructing of Koyli Creek including Vehicle Track" from
Saketdham Society to Mamta Park Society and Laxman Nagar
Market to Karanj Sewerage plant. The subject 'Khadi' (Natural
creek) is passing from area situated between different Town
Planning Schemes. The said Creek ' Khadi' land is not forming
part of any Town Planning Scheme, however, to implement the
project, Notices were issued to remove their illegal structures.
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The road of 20 meters is to be developed by Surat Municipal
Corporation by protecting 'Khadi' by cement (concrete
material) so the 'Khadi' can be saved from encroachment,
Garbage dumping and water flow can be smoothly moved.
Therefore, encroachment on 'Khadi' land is required to be
removed.
7.1 In this case, the petitioners are residents of Jawahar
Nagar Society falling on 'Khadi' land, situated adjacent to
Final Plot No.83 of Town Planning Scheme No.3 (Karanj).
Since the 'Khadi' is passing through area located between final
plot boundary of two different Schemes i.e. Town Planning
Scheme No.3 (Karanj) and Town Planning Scheme No.11
(Puna), Surat at Jawahar Nagar Society, a need arose to
remove encroachment.
7.2 Undisputedly, the petitioners have done construction on
'Khadi' land, that too, without any development permission
from any competent authority and most of the premises are
used for commercial purposes and not for residential purposes.
The waste being thrown in 'Khadi' creates water logging in
monsoon season and therefore, 'Khadi' is required to be
cleared. Further, on account of the said encroachment water
flow get obstructed, which needs to be flow freely. Learned
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advocate relied upon Map at Annexure R-1 and photographs,
to justify the encroachment of the petitioners.
7.3 Learned advocate further submitted that considering the
submission on behalf of the petitioners that they were not
heard prior to the Notice dated 19.10.2023 and 26.10.2023,
this court vide order dated 03.07.2024, directed the
respondent- corporation to provide an opportunity of hearing
before passing an order under Section 68 read with Rule 33 of
the Rules. Accordingly, the petitioners were served with the
Notices and provided with an opportunity of hearing. The
order dated 09.07.2024, records order of this Court dated
03.07.2024 and opportunity of personal hearing granted to the
representative of petitioners on 07.07.2024.
7.4 After having detailed hearing, an order dated 09.07.2024
(Annexure "R-5" Page-62) was passed. From the order, it is
evident that a well-reasoned order is passed dealing with the
objections raised by the petitioners. The order refers earlier
opportunities granted to the petitioners to produce relevant
documents in support of their ownerships. Though contended
that the petitioners are not encroachers, not a single document
has been produced to justify their rights over the property. No
development permission was placed on record. It is ascertained
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that majority of subject premises are commercially used. Most
of the properties are used for embroidery units and further
most of the structures are in dilapidated conditions and
accordingly the order dated 09.07.2024 was passed. Further,
dumping of waste, is not permitting water to flow freely from
creek 'Khadi'. Therefore, the order passed under section 68 of
the T.P. Act read with Rule 33 of the Gujarat Town Planning
and Urban Development Rules, is appropriate and deserves no
interference.
8. Considered the submissions and documents on record.
Facts, as referred hereinabove, are not in dispute and
therefore, they are not repeated. The petition challenges the
Notices dated 19.10.2023 and 26.10.2023. Under the said
Notices, the petitioners were directed to remove the
encroachment and Notices also refer to sanctioning of Final
Town Planning Scheme No.3 (Karanj) by Notification dated
09.07.1997. Prior to finalization of Town Planning Scheme
No.3, sanctioning of Draft Town Planning Scheme No.3
(Karanj) vide Notification dated 19.06.1983 and sanctioning of
Preliminary Town Planning Scheme No.3 (Karanj) vide
Notification dated 14.07.1993, is not in dispute. Thus, upon
sanctioning of Draft Town Planning Scheme No.3, the land in
question as per Section 48-A of the T.P. Act, vest with
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appropriate authority free from all encumbrances.
9. It is reiterated by the petitioners that they are in
possession of the subject premises since many years.
Accordingly, time was granted by the authority earlier and
thereafter vide notice dated 04.07.2024 to produce necessary
documents in relation to their sanctioning of lay out plan or
development permission in relation to their construction.
However, despite opportunities granted to produce documents
of ownership or of development permission, not a single
document was produced by the petitioners. Only reliance
placed is on taxes paid by the petitioners to the Municipal
Corporation. Moreover, possession receipt or payment of taxes
or electricity bills, will not justify title of the property.
Further, in absence any development permission, the
petitioners do not have vested right to retain the unauthorised
construction. Along with this petition, several documents by
way of paper-book have been produced and upon perusal, it is
found that they are the bills of property tax of electricity. The
possession (kabja)receipts, in the opinion of this Court would
not make the construction authorized. These facts in the
opinion of this court justifies nature of construction as
unauthorized.
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10. On the aspect of providing opportunity of hearing to the
petitioners, it is noticed that before passing the order dated
09.07.2024 (Annexure-R5 page 62), under section 67 of the
T.P. Act read with Rule 33 of the Town Planning Rules, as
directed by this court under order dated 03.07.2024 in Special
Civil Application No.9442 of 2024, all the stake holders were
given time to raise their objections. The petitioners thus
participated in the proceedings, however, could not establish
their cases by producing necessary document in relation to
their ownership and construction. Therefore, the contention of
breach of principles of natural justice also does not merit
acceptance. Further, finalization of Town Planing Scheme No.3
(Karanj) vide Notification dated 09.09.1997 cannot be ignored.
The photograph produced suggest the use of premises as
commercial.
11. In view of the above and in absence of any valid
document produced by the petitioners in relation to their
ownership and of construction carried out after due permission,
in the opinion of this court, the contentions on behalf of
petitioners does not merit acceptance. Therefore, the Notices
issued to remove encroachment appears to be just and legal.
Since the petitioners are encroachers on subject land, they
shall not have any vested rights over the subject land and they
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can not be permitted to use the unauthorised construction
indefinitely.
12. At this stage, it would be opposite to refer decision of
Hon'ble Supreme Court rendered in the case of Kaniz Ahmed
V/s. Sabuddin and others in Special Leave to Appeal (C)
No.12199-12200 of 2025, wherein it is held as under:
"7. Thus, the Courts must adopt a strict approach while dealing
with cases of illegal construction and should not readily engage
themselves in judicial regularisation of buildings erected without
requisite permissions of the competent authority. The need for
maintaining such a firm stance emanates not only from inviolable
duty cast upon the Courts to uphold the rule of law, rather such
judicial restraint gains more force in order to facilitate the well-
being of all concerned. The law ought not to come to rescue of
those who flout its rigours as allowing the same might result in
flourishing the culture of impunity. Put otherwise, if the law were
to protect the ones who endeavour to disregard it, the same would
lead to undermine the deterrent effect of laws, which is the
cornerstone of a just and orderly society. [See: Ashok Malhotra v.
Municipal Corporation of Delhi, W.P. (c) No. 10233 of 2024 (Delhi
High Court)."
13. Moreover, in the case of Rajendra Kumar Barjatya and
another V/s. U P Avas Evam Vikas Parishad and others
reported in 2024 INSC 990, it is held as under:
"19. In a catena of decisions, this Court has categorically held
that illegally of unauthorized construction cannot be perpetuated. If
the construction is made in contravention of the Acts / Rules, it
would be construed as illegal and unauthorized construction, which
has to be necessarily demolished. It cannot be legitimized or
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protected solely under the ruse of the passage of time or citing
inaction of the authorities or by taking recourse to the excuse that
substantial money has been spent on the said construction. The
following decisions are of relevance and hence cited herein below
to drive home the point that unauthorized constructions must be
dealt with, with an iron hand and not kid gloves.
(i) In K. Ramadas Shenoy v. Chief Officers, Town Municipal
Council, 1974 2 SCC 506 after having found that the impugned
resolution sanctioning plan for conversion of building into a cinema
was in violation of the Town Planning Scheme and hence, it has
no legal foundation, this Court held that the High Court was
wrong in not quashing the resolution on the surmise that money
might have been spent. The relevant passage reads as follows:
"29. The Court enforces the performance of statutory duty by
public bodies as obligation to rate payers who have a legal right to
demand compliance by a local authority with its duty to observe
statutory rights alone. The scheme here is for the benefit of the
public. There is special interest in the performance of the duty. All
the residents in the area have their personal interest in the
performance of the duty. The special and substantial interest of the
residents in the area is injured by the illegal construction.
xxx xxx xxx"
14. In view of the above, the present petition being devoid
of merits, deserves to be dismissed and the same is hereby
dismissed. Interim relief earlier granted stands vacated
forthwith. Rule discharged. No cost.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL...
