Gujarat High Court
Mukesh Manubhai Shah vs State Of Gujarat on 16 July, 2025
NEUTRAL CITATION
C/SCA/4146/2025 JUDGMENT DATED: 16/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4146 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 4251 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 4258 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 4256 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 4241 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 4242 of 2025
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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MUKESH MANUBHAI SHAH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DIGANT B KAKKAD(6523) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/07/2025
ORAL JUDGMENT
1. RULE. Learned Assistant Government Pleader Mr. Sahil
Trivedi waives service of notice of rule on behalf of respondent
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No. 1 and learned advocate Mr. Nandish Chudgar waives
service of notice of rule on behalf of respondent No. 2 -
Ahmedabad Municipal Corporation.
2. These petitions are filed challenging the notices dated
14.02.2025 and 17.02.2025 served to respective petitioners,
whereby they have been directed to remove encroachment on
a water body (lake land). The notices refer that Survey Nos.
538 and/or 539 are situated at East - West Zone, Ward No.
33, Sarkhej and on the said land the State Government has
authorized respondent No. 2 - Corporation, to develop a lake
for public use. The development of lake is to be done where
'Badar talav' is located and for the development of Lake,
powers are assigned to respondent No. 2 - Corporation by the
State Government.
3. Since all these petitions are filed either challenging the
notice dated 14.02.2025 or 17.02.2025, and the issue involved
being common, with the consent of learned advocates for
respective parties, all these petitions are heard together and
decided by this common judgment.
4. Heard learned advocate Mr. Digant Kakkad for the
petitioners, learned Assistant Government Pleader Mr. Sahil
Trivedi for respondent No. 1 - State and learned advocate Mr.
Nandish Chudgar for respondent No. 2 - Corporation.
5. Learned advocate Mr. Digant Kakkad for the petitioners
submitted that all these petitions are filed challenging the
notices dated 14.02.2025 or 17.02.2025, issued for removal of
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encroachment on Survey Nos. 538 and/or 539, situated at
South-West Zone, Ward No. 33(Sarkhej), Village Sarkhej. The
purpose of removal of encroachment is for the development
and beautification of lake- a water body for public use. It is
case of the petitioners that they their premises are situated on
Survey Nos. 540, 553, 541 and 265, either on joint survey
numbers or on individual survey numbers. Further, all these
Survey numbers are adjacent to each other/ forming part of
Survey Nos. 538 and/or 539, which is subject matter of present
petitions.
5.1 By refereeing to the notices issued either dated
14.02.2025 or 17.02.2025, Learned advocate for the petitioners'
submitted that only 7 days' time has been given for removal
of encroachment on Survey Nos. 538 and/or 539. The
petitioners herein are in possession of the premises situated on
Survey Nos. 540, 553, 541 and 265, as referred in their
respective petitions, since many years and the payment of tax
bills supports their long possession. Moreover, in the tax bills
reference of respective Survey Nos. 540, 553, 541 and 265, is
made in respective petitioners' case. Despite that, either notice
dated 14.02.2025 or 17.02.2025 was issued, which is in the
nature of order. The Notice/ order dated 14.02.2025 or
17.02.2025 was served without providing any opportunity of
hearing or without putting the petitioners to prior notice.
Since, the notices dated 14.02.2025 or 17.02.2025 are in
breach of principles of natural justice, the same deserves to be
quashed and set aside. Moreover, the notices do not refer to
any provision or the Act under which the same were issued.
Thus, the notices being vague in nature deserve to be quashed
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and set aside.
5.2 Further, considering the issue involved, this Court by
order dated 01.04.2025, directed for fresh measurement and
demarcation to be carried out by District Inspector Land
Record (DILR) for Revenue Survey Nos. 538 and 539, on which
encroachment is alleged. Pursuant thereto the measurement
and demarcation were done and the map is produced at Page
No. 162. From the map, it is evident that all the petitioners
are adjacent and covering only some portion of Revenue
Survey Nos. 538 and/or 539 and hence before taking any
action, they are required to be served with notice.
5.3 Learned advocate for the petitioners also placed on record
additional affidavit dated 16.07.2025 and submitted that a
Draft Town Planning Scheme No. 87 (Sarkhej - Okaf -
Fatehvadi) was sanctioned vide notification dated 10.09.2012.
Pursuant to sanctioning of Draft Town Planning Scheme No. 87
(Sarkhej - Okaf - Fatehvadi), a plan was prepared by the
authority and as referred in Form F (Page No. 190), the
measurement of Survey Nos. 538 and 539 remained same.
From the map prepared (pursuant to TP Scheme), it is evident
that some portion of Survey Nos. 540, 553, 541 and 265 is
forming part of Town Planning Scheme. Therefore, once the
petitioners Survey Numbers are forming part of the Town
Planning Scheme, the petitioners are required to be put to
notice to raise their objections and till then, they may not be
dispossessed and respondents may be restrained to act upon
their notices dated 14.02.2025 or 17.02.2025. Learned advocate
therefore submitted that present petition deserves consideration
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by quashing and setting aside notices dated 14.02.2025 or
17.02.2025.
6. Learned Assistant Government Pleader Mr. Sahil Trivedi
for respondent No. 1 - State submitted that from the tenure of
notices dated 14.02.2025 or 17.02.2025, it is evident that
Revenue Survey Nos. 538 and 539 is a notified water body,
given to respondent No. 2 - Ahmedabad Municipal Corporation
for development of lake. The said lake is to be developed for
the use of public. Since, encroachment was there on water
body, respondent - Corporation issued notices dated
14.02.2025 or 17.02.2025, directing the respective petitioners
to remove encroachment within the stipulated time. Since, no
construction is permitted on water body (lake land), the
notices dated 14.02.2025 or 17.02.2025 are in accordance with
the provisions of the Act and hence, these petitions deserve to
be rejected on this ground alone.
7. Learned advocate Mr. Nandish Chudgar for respondent
No. 2 - Corporation referring to the reply on behalf of
respondent No. 2 - Corporation submitted that from the
notices dated 14.02.2025 or 17.02.2025, it is evident that they
were issued to remove encroachment on Survey Nos. 538 and/
or 539. After filing of these petitions, noticing the confusion
with regard to encroachment on Survey Numbers, this Court
vide order dated 01.04.2025 directed DILR to carry out fresh
measurement and demarcation basis the Revenue Survey
numbers. Accordingly, a report was prepared by DILR. From
DILR report dated 06.05.2025 (Page No. 162), it is evident that
though Survey Nos. 538 and 539 are demarcated as water
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body (lake land), portion of same is covered with
encroachment and notices were issued to remove
encroachment. Learned advocate submitted that if the
petitioners are situated on Survey Nos. 540, 553, 541 and 265
the respondent - Corporation is not concerned with their
survey Nos. because no notices have been issued to remove
encroachment on the Survey Numbers other than Survey Nos.
538 and/or 539. If the petitioners are situated on Revenue
Survey Nos. 540, 553, 541 and 265, their grievance is
misconceived and this petition deserves to be rejected on this
ground alone.
7.1 In relation to development of lake, learned advocate
submitted that respondent No. 2 being the implementing
authority, the State Government directed to develop the lake
for public purpose and respondent No. 2 had issued notices for
removal of encroachment. Therefore, since the notices are very
clear indicating the nature of encroachment on Survey
numbers, the argument canvased that notices are vague is not
correct. In relation to Draft Town Planning Scheme No. 87
(Sarkhej - Okaf - Fatehvadi) sanctioned on 12.09.2012,
learned advocate submitted that the plan and Form F supports
the case of respondent that the measurement of Survey Nos.
538 and/or 539 has not been disturbed and the said area is
required to be developed as a lake. If for any reason,
petitioners are situated in Survey numbers other than Survey
Nos. 538 and/or 539, the authority will follow the provisions
under the Gujarat Urban Development and Town Planning Act,
1976 (for short 'the TP Act').
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7.2 Learned advocate also relied upon Section 37 of the
Gujarat Land Revenue Code, 1879 (for short 'the Code, 1879')
to submit that as per Section 37 of the Code, 1879 the lake
land or water body is a property of Government and the State
Government is empowered to dispose the same in a manner
which it may deem fit.
8. Considered the submissions. It is noticed that the
challenge in these petitions are the notices dated 14.02.2025
and/or 17.02.2025 issued to the respective petitioners
individually directing them to remove the encroachment on
Revenue Survey Nos. 538 and/or 539. The land of Revenue
Survey Nos. 538 and/or 539 is the lake land and the
Government has directed respondent No. 2 - Corporation to
develop the lake and to beautify the area for public use. The
notices refer to removal of encroachment and the notices do
not refer to Survey numbers other than Survey Nos. 538
and/or 539. Therefore, the submissions of learned advocate on
behalf of respondent No. 2 that if the petitioners are situated
on other Survey Numbers than Revenue Survey Nos. 538
and/or 539, they are not affected by the said notice, merits
acceptance.
9. Admittedly as referred in the notices, the petitioners are
situated on Revenue Survey Nos. 540, 553, 541 and 265 and
their tax bills also refer to Survey numbers other than Survey
Nos. 538 and/or 539. Therefore, it is true that if the
petitioners are not concerned with Survey Nos. 538 and/or
539, they would not be affected by the notices. Moreover,
as per Section 37 of the Code, 1879 the water body belongs to
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the Government and no construction is permissible on a water
body.
10. Further, this Court is also conscious of its order dated
01.04.2025, pursuant to which DILR has carried out fresh
measurement and demarcation. The said measurement and
demarcation done by independent authority refers to some
encroachment on Survey Nos. 538 and/or 539. Therefore, in
the opinion of this Court, if portion of Survey Nos. 538 and
539 is encroached, the said encroachment is to be removed
and therefore the notices dated 14.02.2025 and 17.02.2025 are
legally issued directing removal of encroachment calling for no
interference.
11. In relation to submissions that the Draft Town Planning
Scheme No. 87 (Sarkhej - Okaf - Fatehvadi) is sanctioned vide
notification dated 12.09.2012 and the Form-F refers to same
measurement of Survey Nos. 538 and/or 539 as earlier was,
supports the case of respondents, that it shall not be used for
any other purpose than water body. If other Survey Nos. 540,
553, 541 and 265 are forming part of sanctioned Draft Town
Planning Scheme No. 87 (Sarkhej - Okaf - Fatehvadi), then
the Town Planning Authority is duty bound to strictly act in
accordance with the Act, 1976.
12. Thus, in the opinion of this Court the impugned notices
were issued to remove encroachment on Survey Nos. 538 and/
or 539, for development of lake, to be used for public at large
and therefore, no interference is called for. Hence, the
petitions are dismissed. Interim relief granted earlier stands
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vacated. Rule is discharged. No order as to costs.
13. After dictation was over, learned advocate Mr. Digant
Kakkad for the petitioners requested for continuation of interim
relief earlier granted for further period of 2 weeks. However, in
view of the reasons stated hereinabove, the request made by
learned advocate for the petitioners is rejected.
sd/-
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
