Gujarat High Court
Kishorebhai Jarambhai Malviya vs State Of Gujarat on 10 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21202 of 2023
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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KISHOREBHAI JARAMBHAI MALVIYA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DIVYESH Y PATEL(11830) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR SIKANDER SAIYED(3458) for the Petitioner(s) No. 1,2,3,4,5,6,7
MS NALANDA ACHARYA, 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.Nalanda
Acharya 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 (Annexure "A" Page- 24 to 30), issued under
section 48-A, 67 and 68 of Gujarat Town Planning and Urban
Development Act, 1976 ("TP Act" for short) read with Rule 33
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of Gujarat Town Planning and Urban Development Rules,
whereby the petitioners are directed to give peaceful, vacant
possession of subject premises, failing which appropriate action
under the provisions of the T.P. Act has been indicated.
3. It is further prayed that respondents- Corporation may be
directed to reconsider the Preliminary Town Planning Scheme
No.20 (Puna) by varying it qua revenue survey Nos.374, 371/2-
A, 372 and 373 and Final Plot Nos.15, 18, 20 and 22 of
Village: Puna, 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, as referred in the petition, are as under:
4.1 It is case of all seven petitioners that they are owners of
respective residential houses since long and they have
constructed houses on the land bearing revenue survey
Nos.374, 371/2-A, 372 and 373 at Village: Puna. Earlier the
land in question was divided into various residential plots and
original owner of plots applied for development permission
before Puna Village Panchayat. Accordingly, lay-out plan was
sanctioned by Puna Village Panchayat, and thereafter
residential houses were constructed.
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4.2 Subsequent to that, original owner through his power of
attorney executed possession receipt and thus, the subject
premises were sold to the petitioners on payment of sale
consideration. It is case of the petitioners that original owner
executed sale agreement with possession with each purchaser,
however, on account of plot size being meager and since the
amount of consideration was just Rs.3,000/-, registered sale
deeds were not executed in favour of the petitioners. However,
they are owners of the premises and at present, they are using
the said premises, which is evident from the property taxes
and electricity bills paid by them. It is further case of the
petitioners that thereafter, village Puna was included in the
limits of Surat Municipal Corporation and accordingly
properties in question were assessed by Surat Municipal
Corporation from the year 2022 to 2024. Thus, the ownership/
possession of the subject premises with the petitioners is not in
dispute.
4.3 It is case of the petitioners that the premises in
question were constructed prior to sanctioning of Draft Scheme.
The Corporation declared intention of Draft Town Planning
Scheme No.20 (Puna), vide publication dated 21.07.2000.
Thereafter, Draft Town Planning Scheme No.20 (Puna) was
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sanctioned by Notification dated 15.10.2008. Upon sanctioning
of Draft Scheme, the same was sent for approval of the State
Government and the State Government Sanctioned the
Preliminary Town Planning Scheme No.20(Puna) vide its
Notification dated 10.06.2019. The Final Town Planning
Scheme No.20 (Puna) is pending. However, prior to sanctioning
of Preliminary Town Planning Scheme No.20(Puna), no Notices
were served to the petitioners for their alleged un-authorized
construction on Creek (khadi) land. The petitioners are owner
and 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.Sikander Saiyed for the
petitioners, learned AGP Ms.Nalanda Acharya for respondent
No.1 and learned advocate Mr.Kaushal Pandya for respondent
Nos.2 and 3.
6. Learned advocate for the petitioner submitted that the
Notice dated 19.10.2023, issued by the respondent- corporation
is bad in law for the following reasons:
6.1 That the said Notice refers to sanctioning of Preliminary
Town Planning Scheme No.20 (Puna) under Section 65 of
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T.P.Act on 10.06.2019. However, prior to sanctioning of
Preliminary Town Planning Scheme No.20 (Puna), the
petitioners were not provided any opportunity of hearing.
Further, prior to 10.06.2019, when the Draft Town Planning
Scheme No.20 (Puna) was sanctioned by the State, the
petitioners were not served with the Notice and accordingly,
they had not raised their objections. When no Notice was
served, the question of providing personal hearing would not
arise. Therefore, Draft Town Planning Scheme No.20 (Puna) as
well as Preliminary Town Planning Scheme No.20 (Puna) were
sanctioned without issuance of Notices to the petitioners and
without providing an opportunity of hearing to the petitioners
and therefore, the same deserve to be quashed and set aside.
Though the petitioners are owners and in occupation of the
subject premises since long they were not served with notices.
6.2 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 after following the due procedure,
therefore notice deserves to be quashed and set aside.
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.
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Without any demarcation done by the State and without any
evidence, respondent- Corporation in its reply has stated that
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 Further, there is no subjective satisfaction by the State
authorities before sanctioning the Draft Town Planning Scheme
No.20 (Puna). The authorities have not taken cognizance of
existing construction over revenue survey Nos.374, 371/2-A,
372 and 373. In Notice dated 19.10.2023, no reasons were
given by the authority that why existing residential houses are
required to be demolished.
6.5 Moreover, from the map available, it is evident that
Khadi can be covered adjacent to Final Plot Nos.15, 18, 20
and 22 and therefore, the petitioners' houses are not required
to be removed. Moreover, the authority varied the Draft Town
Planning Scheme No.20 (Puna) and after variation the
Preliminary Town Planning Scheme No.20 (Puna) was
Sanctioned by the State. However, the variation was done
without any application for variation under section 70 of the
Act. Since the variation was done without following the
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procedure, Surat Municipal Corporation may be directed to
seek variation as per the provisions of the T.P.Act from Draft
Town Planning Scheme No.20 (Puna) and therefore the notice
is bad in law.
6.6 Further, submission of water logging because of Khadi
and Khadi being used for garbage purposes is beyond facts. In
these cases, the subject premises came within limits of Surat
Municipal Corporation as city limits have been extended.
Earlier, the houses were belonging to Village Panchayat and
they were recorded in Village Panchayat register. Merely the
petitioners do not possess sale deed justifying their titles, they
may not be treated as encroachers. Learned advocate submitted
that other documents like property tax bills, electricity bills
and possession receipts are valid documents, which the
respondents have failed to consider and therefore appropriate
direction may be issued to quash and set aside the Notice
dated 19.10.2023. Accordingly, Notification dated 10.06.2019
also deserves to be quashed and set aside.
6.7 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.
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Therefore, Corporation may be directed to send proposal for
variation of Town Planning Scheme No.20 (Puna), to the State
Government and State Government may further be directed to
appropriately considered, the same for variation of Town
Planning Scheme No.20 (Puna) for revenue survey No 372 and
373 and Final Plot Nos.15, 18, 20 and 22 of Village: Puna.
6.8 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.
6.9 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.
6.10 It is case of the petitioners that when Draft Town
Planning Scheme No.20 (Puna) was sanctioned by Notification
dated 15.10.2008, in the draft Scheme the petitioners' houses
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were not required to be demolished for development of road.
However, when the Notification dated 10.06.2019 sanctioning
Preliminary Town Planning Scheme No.20 (Puna) was
published and as per part plan of Preliminary Town Planning
Scheme No.20 (Puna), several residences of petitioners have
been demolished for development of 20 mtrs. road. The action
of demolition of several residential houses from Final Plot
No.15 was taken to cover the Khadi land, as also the create 20
mtrs. wide road, which is pursuant to sanctioning of
Preliminary Town Planning Scheme No.20 (Puna) vide
Notification dated 10.06.2019. This action was done without
issuance of any notice or intimation. Since variation has been
made in Draft Town Planning Scheme No.20 (Puna) to
Preliminary Town Planning Scheme No.20 (Puna) without
hearing the petitioners, who are in possession of the subject
land. Intimation of publication vide Notification dated
10.06.2019 needs to be quashed and set aside.
7. Opposing the present petition, learned advocate
Mr.Kaushal Pandya for the respondent- Surat Municipal
Corporation placed reliance on affidavit to submit that the
petitioners have prayed to quash and set aside the Notice
dated 19.10.2023, challenge is also made with regard to
Notification dated 10.06.2019, whereby the State Government
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has sanctioned the Preliminary Town Planning Scheme No.20
(Puna) qua Final Plot Nos.15, 18, 20 and 22. Out of seven
petitioners, petitioner Nos.1 to 4 are from Prabhukrupa
Society, petitioner Nos.5 and 6 from Ishwarkrupa Society and
petitioner No.7 is from Gurukrupa Society.
7.1 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 water being thrown in Khadi creates water logging
in monsoon season and therefore, Khadi is required to be
removed. Learned advocate relied upon Map and photographs,
to justify the encroachment of the petitioners.
7.2 From the order, it is amply clear that earlier
opportunities being provided 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 by the petitioners to justify their
occupancy rights. Construction is without development
permission and the petitioners failed to provide development
permission. All the premises have been used for commercial
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purposes and waste being dumped, causes water block and
water logging in the monsoon and therefore, the order passed
under section 68 of the 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 petitioners are
challenging Notice dated 19.10.2023. Under the said Notice,
the petitioners were directed to remove the encroachment and
Notices also refer to sanctioning of Town Planning Scheme
No.20 (Puna) by Notification dated 10.06.2019. Thus, upon
sanctioning of Draft Town Planning Scheme No.48 of the T.P.
Act, the land in question as per Section 48-A of the T.P. Act,
vest with Appropriate Authority free from all encumbrances.
On behalf of the petitioners, it was reiterated that they are in
possession of the subject premises since many years. It is
noticed that despite opportunities granted in relation to
produce documents of ownership, not a single document was
produced by the petitioners. Only reliance placed is on taxes
paid by the petitioners to the Municipal Corporation.
Moreover, unregistered agreement to sale or payment of taxes
or electricity bills, will not create any title over the property
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and there is no vested right with the petitioners to retain the
said property for many years. Moreover, along with this
petition no documents were produced of their ownership or
development permission.
9. On the aspect of providing opportunities of hearing to
the petitioners, it is noticed that before passing the order
under section 67 of the Act read with Rule 33 of the Town
Planning Rules, all the stake holders were given time to raise
their objections on 08.07.2024 and the petitioners though
participated in the proceedings, could not establish their cases
by producing necessary document in relation to their
ownership and of having constructed the property after
development permission. Most importantly, reliance placed on
pending contempt proceedings is of no help since the same
was disposed as not pressed. Accordingly, opportunity was
provided to the petitioners to produce necessary documents,
which they failed to produce. In the opinion of this court,
contention of breach of principles of natural justice does not
merit acceptance.
10. Further, sanctioning of Town Planning Scheme No.20
(Puna) pursuant to Notification dated 10.06.2019 cannot be
ignored. Further, the land in question is creek land wherein
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water if not permitted to flow freely, would cause water
logging in monsoon. Submission on part of respondents that
the creek is used to throw the garbage, cannot be ignored.
11. In view of the above and in absence of any valid
document produced by the petitioners in relation to their
ownership on land in question, in the opinion of this court,
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 may not be permitted to use the same
indefinitely.
12. 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
can not be permitted to use the unauthorised construction
indefinitely.
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13. 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)."
14. 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
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
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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"
15. In view of the above, the present petition being devoid
of merits, deserves to be dismissed and the same is hereby
dismissed. The Interim Relief earlier granted stands vacated
forthwith. Rule discharged. No cost.
sd/-
(MAUNA M. BHATT,J)
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