Gujarat High Court
Pushpaben Pravinbhai Vaniya vs State Of Gujarat on 14 November, 2025
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Reserved On : 28/05/2025
Pronounced On : 14/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7357 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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PUSHPABEN PRAVINBHAI VANIYA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PRIYANK V PANDYA(10705) 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,
4,5,6,7,8,9
MR VIKRAM J THAKOR(2221) 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,
4,5,6,7,8,9
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
1. The petitioners herein, having been aggrieved by the action
of the respondent no.2, the Ahmedabad Municipal
Corporation, inter alia, in issuing the order dated
21.05.2025 of the respondent no.3, the Assistant Estate
Officer, calling on the petitioners to vacate the subject
premises, situated on Original Plot Nos.181 and 182 of
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Survey No.156 and 181 (original Revenue Survey No.156
and 181) of Village Acher, Sabarmati Taluka, Ahmedabad,
have preferred the present Special Civil Application.
2. The prayer clause of the Special Civil Application No.
7357 / 2025 reads thus:
(A) Your Lordships may be pleased to admit and allow this
petition.
(B) Your Lordships may be pleased to issue writ of
certiorari or writ of mandamus or any other appropriate
writ, order or direction quashing and setting aside the
impugned order dated 21.05.2025 (Annexure-A) and
notice dated 19.04.2025 (Annexure-B) issued by the
respondent no. 3 to the petitioners and be pleased to
quash and set aside the entire exercise of evicting the
petitioners and removing /demolishing the properties
occupied by the petitioners situated on land mentioned in
sketch overleaf the impugned notice dated 19.04.2025
(Annexure-B).
(C) Your Lordships may be pleased to quash and set aside
the impugned T.P. Scheme being Final T.P. Scheme No.
23(Sabarmati) being illegal and unconstitutional so far as
it affects and relates to properties occupied by the
petitioners mentioned in the sketch with notice dated
19.04.2025.
(D) During the pendency and till final disposal of the
petition, by way of interim relief, Your Lordships may be
pleased to stay the operation, implementation and
execution of the the impugned order dated 21.05.2025
(Annexure-A) and notice dated 19.04.2025 (Annexure-B)
issued by the respondent no. 3 and be pleased to restrain
the respondents from taking any further action against
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the petitioners in pursuance of order and notice
Annexure-A and B and be pleased to direct the
respondents to maintain the status quo in respect of the
properties of the petitioners.
(E) Any other relief deemed fit to meet the ends of justice
may be granted.
3. The factual narration, as is forthcoming from the pleadings
in the present Special Civil Application, is as follows:
a. The petitioners, who are occupants, having their
residences and small space for their livelihood, allegedly
since last many decades, have received impugned order
dated 21.05.2025, whereby the petitioners have been
called upon to handover vacant and peaceful possession
of the land mentioned in the said order within seven days
to the Ahmedabad Municipal Corporation, the respondent
no.2 herein. That vide the said order, passed by
respondent no. 3, Assistant Estate Officer, Ahmedabad
Municipal Corporation, it has been stated that failing the
handing over of the possession as aforesaid, the eviction
of the petitioners shall follow, including the demolition of
the properties of the petitioners.
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b. Before the passing of the impugned order dated
21.05.2025, notices dated 19.04.2025, under Section 68
of the Gujarat Town Planning and Urban Development
Act, 1976 (hereinafter, the Town Planning Act), read with
Rule 33 under the Rules framed thereunder, were served
up on the petitioners, calling upon the petitioners to
submit their objections.
c. In the response to the said notice dated 19.04.2025,
the petitioners had filed their objections dated
25.04.2025, inter alia, stating specifically that the
respondent no.3 does not have authority, power or
jurisdiction to initiate proceedings under Section-68 of the
Town Planning Act. In addition to the said objections, the
petitioners also submitted their written submissions on
06.05.2025, in pursuance of the notice for hearing, dated
02.05.2025. In the said written submissions also, it was
agitated that authority, respondent no.3, the Assistant
Estate Officer, did not have power or jurisdiction to
initiate proceedings under Section-68 of the Town
Planning Act; that the TP scheme had been formulated in
respect of a fully constructed area; that the Town
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Planning Scheme was sought to be being implemented
after a period of 41 years; that the petitioners have
purchased part of the land of survey no.156 from its
original owner and have constructed their residential
property in the said TP scheme and that they (the
purchaser-petitioners) were not given any opportunity of
hearing thereby not allowed to participate in the process
of TP Scheme, even when the impugned eviction
proceedings have the effect of rendering the petitioners
homeless, etc.
d. The petitioners are individuals who claim to have
purchased plot(s) of land in the very area, referred to
hereinabove and claim to be living there for more than 60
years. That they are now being sought to be displaced on
the ground of implementation of TP Scheme, after
approximately 40 years of the said TP Scheme coming into
force. As per the petitioners, initially, the original revenue
survey number 156 of the village Acher, Taluka
Sabarmati, District, Ahmedabad, belonged to one
Amarsinh Thakor, and after his death, the names of his
heirs were recorded in the Village Form No. 7/12. The
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petitioners / their predecessors-in-title were tenants of
the original owner, whose names have allegedly been
mutated in the said Village Form-F, issued in the name of
Somaji Amarsinh and others and that the concerned area
was known as Baldevnagar. Later on, the original owners
sold certain plots, by dividing the area into smaller plots
and sold such plots to different persons, i.e., to various
existing tenants and also others, including petitioners /
their predecessors-in-title and received full consideration.
The Petitioners and other purchasers, who were original
tenants, claim that they have spent their life's earnings in
constructing their residences, to have a shelter over their
heads. All the petitioners claim that they have such
documents, i.e., Sale Agreement, but at the time of filing
the petition, the said papers had not been produced.
Albeit, the petitioners have averred that they undertake to
produce documents, as and when required. A sample of
such Sale Agreement, dated 20.04.1987, in favour of
father of the petitioner no.2, has been annexed to the
petition as Annexure-G. Earlier, it was alleged, the very
individual owner had also issued a rent receipt to the
father of the petitioner no.2, evidencing that the latter was
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a tenant of the former for the premises concerned. Of
course, for evidencing possession, the said petitioner has
produced an electricity bill (annexed to the Petition at
Annexure-J), of Torrent Power Limited for the said
premises concerned. Similarly, for further buttressing the
said petitioner's case as regards the possession, the
petitioner has produced a tax bill issued by the
Ahmedabad Municipal Corporation - respondent no.2
herein, wherein the father of the petitioner no.2 has been
shown as the person in possession.
e. It is alleged by the petitioners that during the process
of framing the Town Planning Scheme - the Ahmedabad
Town Planning Scheme No.26, neither the petitioners, nor
their predecessors-in-title, or occupants of existing
constructions, have been given any personal notice.
Rather, a public notice dated 01.09.2023 was issued by
the Respondent No. 2 for declaring various areas,
including part of Baldevnagar, as Slum Clearance Area.
The petitioners allege that as per their knowledge, the
area covering the petitioners' residential area of
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Baldevnagar was not included in the Slum Clearance
Area1. That there are certain Redevelopment Schemes
undertaken in the surrounding area of the petitioners'
residential area, under which the occupants of existing
constructions are given benefit of Redevelopment Scheme.
But the petitioners have not been given any benefit of any
Redevelopment Scheme.
f. That in Baldevnagar, there are about 200 people who
have constructed a shelter over their heads. That the
street light, drainage-lines and water connections,
together with road facilities have been provided in the said
area.
g. That the TP scheme number 23 (Sabarmati) was
finalised on 09.01.1984. The area occupied by the
petitioners, is where a 24 m wide TP Road falls. Thus, as
per the Petitioners, the said TP Road is to be constructed
on an already fully constructed area, because of which, as
per the petitioners, about a hundred odd properties in the
said area is likely to be affected. Thus, the said proposal is
not logical or feasible and was not implemented till now,
Note by this Court:- This part has nothing to do with the Town Planning Act, as declaration
of Slum Clearance Zone is under a distinct Act.
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even when the said Scheme was finalised on 09.01.1984.
Now, as per the petitioners, after a period of 40 years, in
the year 2025, the said finalised TP Scheme is being
implemented by impugned proceedings, initiated by the
respondent no.3 under Section-68 of the Town Planning
Act, read with Rule 33 of the Town Planning Rules, 1979.
h. Hence the petitioners have approached this Court
under the present proceedings.
4. Heard Ld. Advocates for the Parties.
5. Learned Advocate Mr. Priyank V Pandya and Mr. Vikram J
Thakor appearing for the petitioners has contended that
the impugned order and notices are in gross violation of
Articles-14, 21 and 300A of the Constitution of India. That
summary eviction proceedings initiated by the Assistant
Estate Officer is without authority, power and jurisdiction
and therefore, are not sustainable. That such proceedings,
if any, can be initiated only by the Appropriate Authority
and not by the Assistant Estate Officer. In any case, such
an Assistant Estate Officer cannot be stated to be an
Appropriate Authority, which has been defined at section
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2(iii) of the Town Planning Act. Thus, according to the Ld.
Advocate, the Appropriate Authority could be either the
Area Development Authority or the Urban Development
Authority in terms of said section. Again, the said Area
Development Authority and Urban Development Authority
have respectively been defined at section 2(vi) and 2(xxviii)
of the Act. It was submitted that the Area Development
Authority, in terms of the aforesaid definition includes
Local Authority, which, in turn, have been defined under
section 2(xiv) of the Town Planning Act. As per the said
definition at Section 2(xiv), the Local Authorities would
include a Municipal Corporation. Thus, an Asst. Estate
could not have exercised those powers.
6. It was further submitted that section 23(2) of the Town
Planning Act provides for delegation of powers and
functions of Area Development Authority to the Local
Authority, which includes the Municipal Corporation.
Thus, according to the learned advocate, the power to
frame and implement the Town Planning Scheme is
delegated to Municipal Corporation for the area included in
the territorial limits of the Corporation. Thus, for preparing
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and implementing the Town Planning Scheme, the power
can be exercised only by the Municipal Corporation. It was
submitted that the section 68(1) of the Gujarat Provincial
Municipal Corporation Act provides for exercise of power of
Corporation exercisable under any other law, to be
exercised by the Municipal Corporation, subject to
provisions of such law, i.e., The Town Planning Act.
However, submitted the Ld. Advocate, the Town Planning
Act does not provide for delegation of power of appropriate
authority to any officer, and therefore, the power of
summary eviction is not excisable by the Commissioner. It
was submitted that in the instant case, the power of
summary eviction has been exercised by the Assistant
Estate Officer, who is subordinate to the Commissioner. It
was urged that neither Corporation nor Commissioner has
any authority or power to delegate the power of Appropriate
Authority to the Assistant Estate Officer. Therefore, it was
submitted that the impugned order and the notices issued
by Respondent No. 3 is without authority and jurisdiction.
7. The learned advocate, relying on the decision dated
13.11.2024 in the case of Writ Petition No. 295/2022,, i.e,
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In Re: Directions in the matter of demolition of structures,
submitted that the Hon'ble Apex Court in the said Writ
Petition has held that right to shelter is a fundamental
right, guaranteed under Article 21 of the Constitution. It
was submitted that therefore, in the present case, the
action of removing the shelter from the heads of the
Petitioners, (citizens) is unconstitutional. It was also
submitted by the Ld. Advocate that the Hon'ble Apex Court
in the case of State of Karnataka v. Narasimha Murthy
reported in 1995 (5) SCC 524 and in the case of Chameli
Singh and others v. State of UP reported in 1996 (2) SCC
549 has also held that the right of residence is a
fundamental right. The learned advocate has relied on
paragraph 77 and 78 of the judgment in the case of Writ
Petition No. 295/2022, decided by the Apex Court and had
contended that the Hon'ble Supreme Court is
unequivocally holding that the right to shelter is a
fundamental right of the citizen.
8. Emphasizing the facts in the present matter, it was
submitted that undisputedly, in the present case, the Town
Planning Scheme had been finalised and it has come into
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force since 09.01.1984. He submitted that under the
Scheme, the original survey number 156 and 181 were
renumbered as plot number 181 and 182, in lieu whereof,
the final plot number 436 is allotted to original owners.
Further, as per the sketch, overleaf the notice dated
19.04.2025, the land occupied by petitioners is stated to be
marked for a 24 meter wide Town Planning Road and on
that basis, the petitioners have been called upon to vacate
and demolish their residential properties. That the
proposal of TP Scheme, which came into force with effect
from 09.01.1984, is sought be implemented in the year
2025, after a period of 41 years. It was submitted that such
period cannot be stated to be a reasonable period and
therefore such power cannot be exercised. It was also
submitted that as per the sketch produced along with
notice dated 19.04.2025, 24 m wide road is proposed as
passing through a fully constructed area, which is not only
illogical, but is contrary to the basic object of town
planning, since implementation of such proposal would
result in destruction of about a hundred properties and
eviction of about 1000 people rendering them homeless
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and / or jobless, which is violative of fundamental right of
life, including their right of residence.
9. It was submitted that as such, the petitioners are not
encroachers and that the petitioners have purchased their
respective plots by paying consideration and thereafter,
have constructed their residences and properties for
earning their livelihood. The petitioners, it was submitted,
are entitled for alternative accommodation as per the policy
of the State Government. It was also submitted that the
surrounding area has been declared as Slum Clearance
Area and even certain Redevelopment Schemes have been
undertaken to accommodate the occupants of existing
constructions in surrounding areas. But the petitioners
have not given been given benefit of any Redevelopment
Scheme, and therefore, the petitioners have been
discriminated in respect of rehabilitation and resettlement
of the occupants. This is more so when the petitioners are
residing in these properties for more than 60 years and
hence, there is all the more reason for them to be entitled
to be allotted alternative accommodation. It was thus,
urged that the Respondent authority may kindly be
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directed to allot alternative land to the petitioners before
implementing the impugned notice and order.
10. On the other hand, the learned Government Pleader G. H.
Virk appearing for the State and Mr. Deep Vyas, learned
advocate for the Respondent Nos. 2 and 3 have vehemently
urged the Court to reject the petition as lacking merits.
Their submissions, overlapping on many aspects have been
recorded collectively. It was submitted that the present
scheme is progressively being implemented and that it is
not unusual that such progressive Scheme takes about a
decade or so for it to be implemented post its sanction. It
was submitted that at present, a 24 m Road is what is
sought to be constructed in terms of the finalised Town
Planning Scheme, to which the petitioners are objecting. It
was submitted that as such the petitioners have no right to
object at this Stage for the reason that they have not
objected to the Town Planning Scheme per se, till it was
finalized. It was submitted that if it was the contention of
the present petitioners that they are residing at the said
plot since past 60 years, nothing prevented them from
objecting to the scheme when it was in the process of
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finalisation. It was submitted that there is no contention
that the Scheme was approved without following due
process. It was submitted that in terms of the applicable
case law, being the case in Kanjibhai Dahyabhai Malsattar
and Ors. Vs. State of Gujarat reported at 2005 (2) GLR
1649, duly reiterated in the case of Liyakatbhai Usufbhai
Sikarwala & Ors. Vs. Town Planning Officer & Ors., being
the decision dated 18.02.2014, in Special Civil Application
No.8479 of 1997, this Court has held that it is not possible
to give individual notices to each resident of a vicinity when
the Scheme is sought to be sanctioned. It was submitted
that initially in a scheme, the alignment of plots gets
settled and subsequently, the finances under the scheme
are finalised. It was submitted that the petitioners' petition
is bereft of any details, as to any objection taken to the
framing notification or to the entire process of Town
Planning Scheme and therefore relying on judgments of
Hon'ble Apex Court does not further their case. It was
submitted that they have consciously not participated or
challenged the Town Planning Scheme at any stage and
today, with such advanced stage of the scheme, it has
become irreversible situation. It was submitted that
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therefore, balancing the public interest vis-a-vis, the
individual interest, this Court may please lean in favour of
the implementation of the Scheme, more so, when the
Petitioners have not uttered a word of them having taken
objections to the sanction of the Scheme at the stage of the
final Sanction of the Scheme.
11. It was also submitted that in terms of the decisions of this
Court, especially the one reported at 2009 SCC Online
Gujarat 6413, being the decision in Vimlaben Ramsagar
Mishra and another v. Ahmedabad Municipal Corporation,
it has been stated that once a Town Planning Scheme has
become final under the provisions of the Act, and the fact
that the Petitioners have not challenged such Town
Planning Scheme, then at the stage of implementation of
such Scheme under Section 68, read with rule 33, in
absence of any challenge to the Town Planning Scheme,
the consequences are inevitable and the persons who are
in occupation of the land are required to handover,
peaceful and vacant possession of the land. It was thus,
submitted that the petitioners have no case and that the
present petition may kindly be dismissed. In the same vein,
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it was submitted are the decisions in the case of Varahi
Cooperative Housing Society Limited V. State of Gujarat
reported at 2018 SCC Online Gujarat 1416 and the
decision in the case of Bhupendrabhai Mathurbhai Patel v.
State of Gujarat being the decision in Special Civil
Application Number 16287 of 2020. It was submitted that
the present petition may kindly be dismissed.
12. It was submitted that in a similar fact situation, in the
case of Ramanbhai Hargovind Das Limbachia v. State of
Gujarat, being a judgment reported in 2016 (3) GLR 2695 :
2016 (2) GCD 1792, the Division Bench of this Court,
concerning construction of 36 meter road, it was held that
it was for the petitioner or even for the court to consider
whether there was any justification of having 36 m road or
otherwise. And that construction of such road or otherwise
is best left to the wisdom of the expert body and the
appropriate authority, considering the public interest. It
was further held by the Hon'ble Court that objections could
have been raised at the time before the sanctioning of the
Draft Planning Scheme. But having not raised such
objections by the persons who claim to be in possession
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prior to the sanctioning, they could not possibly raise
objections belatedly. And in so far as those who
purchased / constructed land thereafter, they were
stopped by section 41 from carrying out any development
unless such persons have applied for and obtained the
necessary permission for doing so from the appropriate
authority.
13. Having heard the learned advocates for the parties, this
Court proceeds to decide the present writ petition in terms
appearing hereinafter.
14. The issue which this Court is required to decide in the
present proceedings is that whether the petitioners are
entitled to have quash and set aside the impugned
communication dated 21.05.2025 and the Notice dated
19.04.2025 issued by the respondent no.3 and to set-aside
the entire exercise of evicting the petitioners and
removing/demolishing their properties, situated on the
land mentioned in the sketch overleaf the impugned Notice
dated 19.04.2025?
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15. At the outset, the impugned order dated 21.05.2025
needs to be examined. The said order specifically records
that the approved scheme in question was approved on
29.11.1965, the preliminary scheme was approved on
12.12.1980, the final scheme was approved on 22.11.1983
and the date of implementation of the final scheme was
09.01.1984. The said fact remains uncontroverted.
16. Again, what is apparent is none of the petitioners have
ever challenged the scheme at any of the aforesaid stages.
It is only when they have been sought to be removed from
possession under the impugned order dated 21.05.2025
that they have approached this Court.
17. It is their first contention that the Assistant Estate Officer,
Paschim Zone-05, who has issued the impugned order
dated 21.05.2025, does not have any power to implement
the said scheme. It was their contention that he does not
constitute to be a Municipal Corporation nor the
Appropriate Authority, as defined under the provisions of
the Town Planning Act, and that therefore, he could not
have exercised the powers of a Municipal Corporation in
terms of issuing the impugned communication under
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Section 68 of the Town Planning Act read with Rule 33 of
the rules framed thereunder.
18. This Court believes that the said contention is baseless.
For the said purpose, firstly, the definition of the
Appropriate Authority needs to be perused. In terms of
Section 2(iii) of the Town Planning Act, the Appropriate
Authority in relation to the development area has been
defined to mean an Area Development Authority or an
Urban Development Authority. Now, an Area Development
Authority is an authority constituted under Section 5 of
the Town Planning Act which includes, inter alia, a local
authority, designated as such under Section 6(1) of the
Town Planning Act. Again, Section 5(1) of the Town
Planning Act provides for creation of an Area Development
Authority for certain area, for carrying out functions
assigned to an area development authority under the Act.
Additionally, in terms of Section-6(2), such area
development authority is to set up a Planning Committee
consisting of members, as provided in that Section, and it
shall have all the powers, responsibilities and status, as is
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given to a Standing Committee, if any, appointed under the
Act under which the Local Authority is constituted.
19. Again, the Local Authority referred to hereinabove means
a Municipal Corporation constituted under the Bombay
Provincial Municipal Corporations Act, 1949, as in force in
the State of Gujarat or a Municipality constituted or
deemed to be constituted under the Gujarat Municipality
Act, 1963 or a committee appointed for a notified area
under the Gujarat Municipality Act, 1963 or a Gram/Nagar
Panchayat or deemed to be constituted under the Gujarat
Panchayats Act.
20. Furthermore, the other limb of the Appropriate Authority,
in terms of Section 2(iii) would be the Urban Development
Authority, which is defined under Clause-2 (xxviii) of the
Town Planning Act. The said Section-2(xxviii) provides that
the Urban Development Authority would be the Urban
Development Authority constituted under Section 22 of the
Town Planning Act. The said Section, in turn, provides that
on receipt of proposal from the Urban Development
Authority or otherwise, the State Government may, by
notification in official gazette, delegate any of the powers
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and functions of the Urban Development Authority to the
local authority or the authorities or an officer within its
jurisdiction.
21. Again, the impugned order, at internal page-2 states the
following:
"નામદાર સરકારશ્રી દ્વારા મંજૂર કરાયેલ ટી.પી. સ્કીમની અમલીકરણ એજન્સી
સમુચિત સત્તામંડળ તરીકે અમદાવાદ મ્યુનિસિપલ કોર્પોરેશન ના એસ્ટેટ વિભાગ
દ્વારા કરવામાં આવેલ છે."
22. The closest English translation to the aforesaid is that the
Town Planning Scheme approved by the Government has
been implemented by the Estate Department of the
Ahmedabad Municipal Corporation as the Appropriate
Authority.
23. At this juncture, Section-68 and 69 of the Gujarat
Provincial Municipal Corporations Act, 1949, (hereinafter
referred to as "the Corporation Act") provides as follows:
".....
68. Commissioner to exercise powers and perform duties
of Corporation under other laws.- (1) Any powers, duties
and functions conferred or imposed upon or vested in the
Corporation by any other law for the time being in force
shall, subject to the provisions of such law and to such
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restrictions, limitations and conditions as the Corporation
may impose, be exercised, performed or discharged by the
Commissioner.
(2) The Commissioner may with the approval of the
Standing Committee by order in writing, empower any
municipal officer to exercise, perform or discharge any
such power, duty or function under the control of the
Commissioner and subject to his revision and to such
conditions and limitations, if any, as he shall think fit to
prescribe.
69. Municipal officers may be empowered to exercise
certain of the powers, etc. of the Commissioner or the
Transport Manager.- (1) Subject to the provisions of sub-
sections (2) and (3) any of the powers, duties or functions
[including powers, duties or functions of a judicial or a
Quasi judicial nature], conferred or imposed upon or
vested in the Commissioner or the Transport Manager by
or under any of the provisions of the Act may be
exercised, performed or discharged, under the control of
the Commissioner or the Transport Manager, as the case
may be, and subject to his revision and to such conditions
and limitations, if any, as may be prescribed by rules, or
as he shall think fit to prescribe in a manner not
inconsistent with the provisions of this Act or rules, by
any municipal officer whom the Commissioner or the
Transport Manager generally or specially empowers by
order in writing in this behalf; and to the extent to which
any municipal officer is so empowered the word
"Commissioner" and the words "Transport Manager"
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occurring in any provision in this Act, shall be deemed to
include such officer.
[Provided that nothing in this sub-section shall be deemed
to empower-
(i) the Commissioner or the Transport Manager to exercise
control over, or
(ii) the State Government, the Corporation, the
Commissioner or the Transport Manager to prescribe any
conditions or limitations in regard to, the exercise,
performance or discharge of powers, duties or functions of
a judicial or Quasi-judicial nature, by a municipal officer
under this sub-section.]
(2) The Commissioner shall not, except with the prior
approval of the Standing Committee, make an order under
sub-section (1) affecting his powers, duties or functions
under any of the following sections, sub-sections and
clauses, namely:-
10(1)(h), 12(1), 18(1), 26(2), 43(2), 43(4), 43(5), 51(2), 67(3)
(b), 67(3)(c), 67(3)(d), 71(2), 73, 77, 78(1), 85, 86, 87, 90,
92(2), 94, 95, 121, 122, 125, 126, 130(1)(b), 131(1), 134,
137, 144, 152, 154, 160, 174, 176, 177, 188, 195, 196,
197, 201, 205, 207, 208, 209, 210, 212, 213, 214, 216,
220, 224, 232, 243, 268, 269, 270, 272(2), 273, 274,
275(1), 277, 278, 281, 298, 300, 301, 303, 304, 305, 310,
317, 319, 321, 322, 323, 324, 325, 328, 329, 330, 331,
332, 363, 364, 371(2), 373, 386(2), 439(3), 439(4), 441,
442, 445, 466, 481 except clause (a) of sub-section (1).
(3) The Transport Manager shall not except with the prior
approval of the Transport Committee, make an order
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under sub-section (1) affecting his powers, duties or
functions under any of the following provisions, namely:-
43(5), 67(4)(b), 67 (4)(c), 71(2), 73, 97, 344, 346, 348, 354,
355, 356, 358, 362, 481 except clause (a) of sub-section
(1)."
24. Thus, the Commissioner is empowered under sub-clause-
(1) of Section 68 to exercise, perform or discharge any
powers, duties and functions conferred or imposed upon or
vested in the Corporation, by any other law for the time
being in force, subject to the provisions of such law and to
such restrictions, limitations, and condition as the
Corporation may impose. The Commissioner, in turn,
under Sub-clause (2) of Section-68, by an order in writing
and with approval of the Standing Committee, empower
any Municipal Officer to exercise, perform, or discharge
any such power, duty, or function under the control of the
Corporation subject to his revision and to such conditions
and limitations, as it shall think fit to prescribe. Broadly,
under Section 69, the Commissioner's power per se, could
also be permitted to be exercised by Municipal Officers. So
much so that the Commissioner could not exercise control,
nor could the Corporation etc. are to prescribe any
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conditions or limitations in regard to the exercise,
performance or discharge of powers.
25. At this juncture, the Office Order No.003731 dated
24.12.2018 may be perused. The same is of Office Order
issued by the local authority i.e. Ahmedabad Municipal
Corporation. The contents of the said Office Order are
reproduced herein below for the ease of reference:
"Whereas A.M.C new west zone is devided in to
North West zone & south west zone as per G.D.Est Letter
No.2985 Dt.29.08.2018 St.Committee Res. No.595
Dt.29.08.2018 Municipal Corporation Res. No.769
Dt.26.09.2018.
Therefore, in continuation of all previous office
orders & in exercise of powers vested in him under
section-69 (1) of the G.P.M.C Act 1949 the Municipal
commissioner of the city of Ahmedabad is pleased to
delegate his powers & functions as mentioned as per
annexure- A attached in column-B, in respect of the
provisions of the Gujarat town planning & urban
development act-1976. Mentioned in column-c to
Municipal officers designated in column-d of the schedule
attached herewith, in respect of the zone or wards put in
his charge.
The Approval of Standing Committee as required
under Sec. 69(2) of the G.P.M.C. Act-1949 is obtained
previously vide standing Committee Resolution No.628
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dt.12.07.91 to delegate and said powers to the said
officers."
26. On perusal of the same, it is clear that the Municipal
Commissioner of the Ahmedabad Municipal Corporation
has in exercise of powers vested him under Section-69(1) of
the Corporation Act, 1949 has been pleased to delegate its
powers and functions as mentioned in the Annexures to
the said Order. In respect of the provision of the Gujarat
Town Planning and Urban Development Act, 1976 to the
Municipal Officers stated in column-C of the Schedule of
the said Order. Apparently, there is an effective delegation
of the powers under Section 69(1) of the Corporation Act.
Hence, the contention of the petitioners that the Asst.
Estate Officer could not have exercised powers to issue the
impugned order dated 21.05.2025, is not sustainable.
27. The petitioners have relied on a number of authorities in
respect of various contentions raised by them. One of the
decisions is a decision dated 13.11.2024 in Writ Petition
No. 295 of 2022, titled, IN RE Directions in the Matter of
Demolition of Structure passed by the Hon'ble Apex Court.
In the said matter, grievance was on behalf of the various
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citizens whose residential and commercial properties had
been demolished by the State machinery, allegedly, without
following due process of law on the grounds of them being
involved as an accused qua criminal offences. In the said
matter, the Hon'ble Supreme Court issued certain
directions, albeit, with a clarification that the directions
will not be applicable if there was an unauthorised
structure in any public place as such street, footpath,
butting railway line or any river body or any water bodies
and also to certain whether there is order of demolition
made by the Court of Law. The directions, inter alia,
provided that before such demolition, at least 15 days time
(or a larger time provided by the local municipal laws) -
Show Cause Notice be issued with a time computable from
the date of such Notice. The Notice to be both served by the
RPAD and be affixed conspicuously on the outer portion of
the structure. A copy thereof by e-mail was also to be sent
to the Collector/District-Magistrate of the district with an
auto-generated reply acknowledging receipt of the e-mail by
the concerned Collector/District Magistrate of the district.
Furthermore, the directions provide for assigning of a
digital portal, within 3 months from the date of the
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judgment wherein details regarding service/affixing of the
notice, the reply, the show cause notice and the order
passed thereon would be available. Additionally, the notice
was to mandated to contain the nature of the unauthorized
construction, specific violation by the addressee and
ground of demolition and the list of documents that the
noticee is required to furnish along with its reply. A date of
personal hearing is also required to be mentioned together
with the designated authority who shall conduct such
hearing. After the personal hearing, the minutes of the
same shall be made available. The final order as has been
mandated to contend the contents of the notice and the
reasons if the designated authority disagrees with the
same, where the unauthorized construction is
compoundable and if not the reasons thereon. Again, if the
authorities find that only part of the construction is
unauthorized or non-compoundable then the order is to
reflect the details thereon and why the extreme step of
demolition is the only option available, along with the
reasons as to why the partial demolition or compounding
are not feasible. The Hon'ble Supreme Court also provides
for an opportunity of an appeal in judicial scrutiny of the
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final order and lastly that the demolition shall be
videographed etc.
28. In the present case before this Court, however, there is
Show Cause Notice and a personal hearing has been
granted to the petitioners, and therefore, there being any
breach of the directions in the aforesaid matter does not
arise. In any case, the proposed demolition is not for the
reason of the petitioners being involved in criminal offence
but for the account of the petitioners' properly falling on
the T.P. Road. Hence, the said judgment is of no aid to the
petitioners.
29. The next judgment relied upon by the petitioner is
Rajendra Kumar Barjatya vs U.P. Avas Evam Vikas
Parishad decided on 17.12.2024 by the Hon'ble Supreme
Court reported at MANU/SC/1351/2024: AIR 2025 SC
259. It may be noted that in the said case, the Hon'ble
Apex Court was considering the case where the structures
were erected in complete violation of the nature of
permission as regards its usage, namely, that instead of
the residential usage, the premises constructed were of
commercial usage. Not only that, the commercial shops so
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constructed, had been transferred to various individuals. It
appears that in those proceedings, certain officers of the
Corporation were hand in glove with the transgressors. The
Hon'ble Supreme Court was highly critical of not only the
initial construction but even the purchaser of such
construction who, admittedly were the writ petitioners,
alleging that they are most affected parties. It was held that
the purchasers were required to make sufficient enquiries
before effecting purchase of an immovable property. The
provision under Section 55(1)(a) of the Transfer of
Properties Act was also relied upon by the Hon'ble
Supreme Court to reiterate that when a buyer, with
ordinary care, is not able to ascertain material defect in the
property, or in the seller title, it becomes the duty of the
seller to disclose the same, though it is the primary
responsibility of the buyer to ascertain defects in the
property and its title. In view of the overall circumstances,
the Hon'ble Supreme Court was pleased to issue certain
directions, over and above, the directions issued by the
Hon'ble Apex Court in IN RE Direction in the matter of
demolition of structure. The additional directions in
Rajendra Kumar Barjatya (supra) were as follows:
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"(i) While issuing the building planning permission, an
undertaking be obtained from the builder/applicant, as
the case may be, to the effect that possession of the
building will be entrusted and/or handed over to the
owners/beneficiaries only after obtaining
completion/occupation certificate from the authorities
concerned.
(ii) The builder/developer/owner shall cause to be
displayed at the construction site, a copy of the approved
plan during the entire period of construction and the
authorities concerned shall inspect the premises
periodically and maintain a record of such inspection in
their official records.
(iii) Upon conducting personal inspection and being
satisfied that the building is constructed in accordance
with the building planning permission given and there is
no deviation in such construction in any manner, the
completion/occupation certificate in respect of
residential/commercial building, be issued by the
authority concerned to the parties concerned, without
causing undue delay. If any deviation is noticed, action
must be taken in accordance with the Act and the process
of issuance of completion/occupation certificate should be
deferred, unless and until the deviations pointed out, are
completely rectified.
(iv) All the necessary service connections, such as,
Electricity water supply, sewerage connection, etc., shall
be given by the service provider/Board to the buildings
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only after the production of the completion/occupation
certificate.
(v) Even after issuance of completion certificate
deviation/violation if any contrary to the planning
permission brought to the notice of the authority
immediate steps be taken by the said authority
builder/owner/occupant; and the official, who is
responsible for against concerned, in accordance with law,
the issuance of wrongful completion/occupation
certificate shall be proceeded departmentally forthwith.
(vi) No permission/licence to conduct any business/trade
must be given by any authorities including local bodies of
States/Union Territories in any unauthorized building
irrespective of it being residential or commercial building.
(vii) The development must be in conformity with the zonal
plan and usage. Any modification to such zonal plan and
usage must be taken by strictly following the rules in
place and in consideration of the larger public interest
and the impact on the environment.
(viii) Whenever any request is made by the respective
authority under the planning department/local body for
co-operation from another department to take action
against any unauthorized construction, the latter shall
render immediate assistance and co-operation and any
delay or dereliction would be viewed seriously. The
States/UT must also take disciplinary action against the
erring officials once it is brought to their knowledge.
(ix) in the event of any application/appeal/revision being
filed by the owner or builder against the non-issuance of
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completion certificate or for regularisation of unauthorised
construction or rectification of deviation etc., the same
shall be disposed of by the authority concerned, including
the pending appeals/revisions, as expeditiously as
possible, in any event not later than 90 days as statutorily
provided.
(x) If the authorities strictly adhere to the earlier
directions issued by this court and those being passed
today, they would have deterrent effect and the quantum
of litigation before the Tribunal/Courts relating to
house/building constructions would come down
drastically. Hence, necessary instructions should be
Issued by all the State/UT Governments in the form of
Circular to all concerned with a warning that all directions
must be Scrupulously followed and failure to do so will be
viewed seriously, with departmental action being initiated
against the erring officials as perlaw
(xi) Banks/financial institutions shall sanction loan
against any a security only after verifying the building on
a building as completion/occupation certificate issued to
production of the same by the parties concerned.
(xii) The violation of any of the directions would lead to
initiation of contempt proceedings in addition to the
prosecution under the respective laws."
30. Ultimately, the Hon'ble Supreme Court was pleased to
affirm the Order of the Hon'ble High Court, with a direction
that the appellants (the current owners/third party to the
proceedings before the Hon'ble High Court) shall hand over
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the premises to the respondent authorities who shall take
efforts to demolish the unauthorized construction within a
period of two weeks therefrom.
31. As is apparent, even this authority is of no aid to the
petitioners, as it was rendered in a different factual
background.
32. In Jasbirsingh Didaarsingh Whala vs State Of Gujarat and
Ors., being the judgment rendered in the case of R/Special
Civil Application No.10684 of 2024, the issue was whether
power of Sections 36 and 37 of the Town Planning Act
could be pressed for removing unauthorized structure?
There, instead of statutory notice period of 15 days, only a
period of 7 days was granted. The Hon'ble Single Judge,
considering that the petitioners had not produced any
document regarding his title, and that the construction
was contrary to permission, held that the petitioner was in
breach of conditions imposed by Authority. Even the "show
room" put up, amounting to commercial use, was contrary
to construction permission by the Authority. Thus, it was
held that the petitioner had no valid right.
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33. In such circumstances, the contention that the
Corporation had committed certain folly in taking action,
was not upheld. However, looking to the issue in the
present matter, the facts being drastically different, the
authority does not help the case of the present petitioners.
34. Again, in R/Special Civil Application No.14454 of 2016
and allied matters, decided on 25.11.2022, this Court,
considering that the petitioners did not have valid title, the
Court did not grant any prayer against impugned Notice of
Section 68 and Rule 33 of the Act. This decision thus aids
the respondent as the petitioners have merely Agreement to
Sell, as has been specifically averred in the present
petition.
35. In Ramanbhai Hargovindbhai Limbachiya Vs. State of
Gujarat, the Division Bench of the High Court of Gujarat
was dealing with the issue that once a Draft Town Planning
Scheme is approved, but the consequent Preliminary Town
Planning Scheme was refused to be given a sanction,
whether the whole gamut is to be started from the
beginning or whether the scheme continued at the stage of
draft Planning Scheme. There, the challenge was to the
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implementation of the said Scheme under Section 48A, 67
and 68 of the Town Planning Act, more particularly, in
respect of eviction of 36 meters Scheme Road. Apparently,
the draft Scheme sanctioned was under Section 48 of the
Town Planning Act. The Court relied on Section 48(A) to
hold that consequent to the draft scheme being sanctioned
by the State Government, all lands required by the
Appropriate Authority for the purposes specified in Clause
(c), (f), (g) or (h) of Section 40(3) shall vest absolutely in
appropriate authority, free from all cumbrances.
Ultimately, the Court relied on Section 49 pertaining to
restriction of usage of development of land after declaration
of the scheme that before draft Planning Scheme none of
the petitioner had objected. It was held that those who
were perused it to the sanction of the draft Planning
Scheme did not have valid titled that land in question had
vested absolutely with appropriate authority for
implementing the Town Planning Scheme. Again, those
who had titled prior thereto, were estopped from
contending otherwise as they had not raised any objection
at the time when objections were invited in respect of the
Town Planning Scheme.
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36. Thus, the crux is that once the draft Town Planning
Scheme is sanctioned, in terms of Section 48(A), the lands
vest in the appropriate authority and that no development
in such area could be made unless such person have
applied for and obtained necessary permission from the
appropriate authority.
37. On perusal of the petition, it appears that none of the
petitioners have procured any permission as required
under Section 49 of the Town Planning Act. Therefore, their
contention that they have purchased ( sic, under Agreement
to Sell and not by an Conclusive Sale) the said land and
that they have Agreement to Sell is of no aid to the said
petitioners.
38. Lastly, the petitioners appear to be contending that their
right to have alternative accommodation. It appears that
the said issue has been kept open in the impugned Notice.
The specific clause, reads as follows:
"પરંતુ સદરહું જગ્યાના અસરગ્રસ્તો ઘણા વર્ષોથી આ જ જગ્યાએ વસવાટ
કરતા હોય તથા આવાસો ફાળવવા અંગે તેઓની રજૂઆત અંગે સદરહું
અસરગ્રસ્તોને પ્રોજેક્ટ અફેકટેડ ગણવા બાબતે સક્ષમ સત્તાના નિર્ણયાનુસાર
આગળની આનુષંગિક કાર્યવાહી હાથ ધરવાની થાય."
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39. The closest English translation of the aforesaid clause is
that that as the affected persons are staying there for so
many years and for allocating alternative accommodation
in terms of their representation, further incidental
proceedings shall be conducted in terms of the decision
(sic., that may be taken) of the competent authority for
holding them "Project Affected". Thus, the petitioners are at
liberty to approach the competent authority for inviting
decision of the competent authority in this respect.
40. To conclude, the Town Planning Scheme has become final,
it having reached upto the stage of implementation way
back in Year-1989. That there was no challenge at any
point in time by the present petitioners to the said Scheme.
Indeed, the petitioners have stated that none of them have
received any notice up till the finalization and
implementation of the Scheme. However, the judgment in
the case of Kanjibhai (supra) and Liyakatbhai (supra)
categorically hold that it is not possible to give notices to
individuals to each residence of a vicinity when a Scheme
is sought to be sanctioned and, therefore, on that count
also, the petitioners drawn no success.
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41. In view of the foregoing, this Court holds that the
petitioners are required to hand over the vacant and
peaceful possession as called for in the impugned
communication.
42. The petitioners shall, however, at liberty to make
appropriate application for availing the alternative
accommodation to the competent authority as provided in
the impugned communication dated 21.05.2025. The
present petition thus being devoid of merits is liable to be
disposed of, as rejected, subject to the aforesaid liberty
reserved to the petitioners. Accordingly, the petition stands
disposed of, as rejected.
(J. L. ODEDRA, J)
JIGAR J RABARI
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FURTHER ORDERS:
After this Judgment was pronounced, learned advocate Mr.
Priyank Pandya, appearing for the petitioners, has requested for
stay of the operation of this Judgment to enable his clients to
approach the higher forum.
Considering the peculiar facts and circumstances of the
present case, the operation of this Judgment is stayed for a
period of two weeks.
(J. L. ODEDRA, J)
JIGAR J RABARI
