Gujarat High Court
Umesh Pravinbhai Makwana vs State Of Gujarat on 26 September, 2025
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Reserved On : 28/05/2025
Pronounced On : 26/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7325 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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UMESH PRAVINBHAI MAKWANA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR D S GADHVI(11310) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,
30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,6,
7,8,9
MS. KINJAL A PATEL(17706) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,
30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,6,
7,8,9
MR SAHIL B TRIVEDI ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR G H VIRK(7392) GOVERNMENT PLEADER & MR
SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 2
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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,
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in issuing the notices dated 24.04.2025, under the provisions of
Gujarat Town Planning and Urban Development Act, 1976,
(hereinafter, "the Town Planning Act") calling on the Petitioners
to vacate the subject premises, located at Subhash Nagar,
situated on Final Plot Nos. 486 of Survey No. 193, Original Block
194, within the limits of village Acher, Sabarmati Taluka,
Ahmedabad, have preferred the present Special Civil Application.
2. The prayer clause to the Special Civil Application No.
7325 / 2025 reads thus:
(A) This Hon'ble Court may be pleased to issue a writ, or, issue
a writ of Mandamus or Certiorari, or any other appropriate
writ, order or direction quashing and setting aside the eviction
notices dated 24.04.2025 issued by Respondent No. 2
(Annexure A Colly);
(B) Declare that the Petitioners, being residents of a duly
declared slum area, are entitled protection under Section 17 of
The Gujarat Slum Areas (Improvement, Clearance and
Redevelopment) Act, be 1973, and cannot evicted without
following the procedure prescribed therein;
(C) Pending this petition, stay implementation and execution of
notice dated 24.04.2025 (Annexure A) and restrain the
Respondents from taking any coercive action pursuant to the
said notices, including eviction or demolition, in respect of the
Petitioners' premises;
(D) This Hon'ble Court may be pleased to grant such other and
further relief and/or order in the interest of justice in favour of
the petitioner.
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(E) Your Lordships May be pleased to Quash and set aside the
orders dated 21.05.2025 (Annexure H) passed by the
respondent authority under Section 68 of the Gujarat Town
Planning and Urban Development Act, 1976 and Rule 33 of the
Gujarat Town Planning and Urban Development Rules, 1979,
as being arbitrary, mechanical, without application of mind,
and in violation of Section 17 of the Gujarat Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1973 and
further Hold and declare that the petitioners are protected
occupants under Section 17 of the Gujarat Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1973 and
no eviction order can be passed against them without following
due process as prescribed under the said Act;
(F). Pending the admission, hearing and final disposal of the
present petition, stay the operation, implementation and
execution of the impugned orders dated 21.05.2025 issued by
the respondent authority directing the petitioners to vacate the
residential premises situated on Final Plot No. 486.
3. The relevant facts, in so far the Special Civil Application
No. 7325 / 2025 are concerned, the same read as follows:
a. The petitioners, 49 in number, claim to be the
permanent residents of Subhash Nagar, situated on Final
Plot No. 486 of Survey No. 193, original Block number
194, within the limits of village Acher, Sabarmati Taluka,
Ahmedabad District.
b. Vide Government Gazette Notification dated
11.02.2020, published in Part-2 of the Gujarat Gazette,
the aforesaid locality, whereof which, the petitioners claim
1Prayer Clauses E and F have been added vide subsequent amendment to the
plaint.
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to be permanent residents, had been declared as a Slum
Area under the provisions of Gujarat Slum Areas
(Improvement, Clearance and Development) Act, 1973
(hereinafter, "the Slums Act").
c. The petitioners claim that within the said Slum Area,
are situated their aforesaid residential premises, which
are of their independent ownership, possession and
residential use for the last 20-30 years. That they, except
for the petitioners no. 9, 27, 31, 36, 37, 45 and 48,
regularly pay their light bills to the respondent authority -
Ahmedabad Municipal Corporation. And that they, except
for the petitioners no. 10 & 45, regularly pay their taxes to
the respondent authority - Ahmedabad Municipal
Corporation.
d. That notices, dated 24.04.2025, under section 68 and
rule 33 of the the Town Planning Act, have been issued by
the Respondent Number 2 to the petitioners, calling upon
the latter to vacate their respective residential premises,
within 10 days. In the notice2, it was stated as follows:
i. That the Original Plot No 194 has been allotted
Final Plot No.s 484 and 486. And vide SUG, the Final
2For illustrative purpose, the notice that was issued to Umesh Pravinbhai Makwana
and Shri Jatin Pravinbhai Makwana has been referred to.
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Plot No.s 484 and 486 have been acquired ( સંપ્રાપ્ત ) by the
AMC.
ii. That the land belonging to the Original Plot No. 194
has been merged with Final Plot No. 611/1, 485. 486.
iii. That the 24.38 Meter and 12.18 Meter Road have
been merged into the roads under the Town Planning
Scheme.
iv. That the Town Planning Officer has laid put in
stones indicating the area of the Final Plots.
v. That the area marked and denoted as A150 in the
map, is in possession of the concerned petitioners No. 1
&2. The said land has been vested in the Ahmedabad
Municipal Corporation and that on the same, no rights
remain on the said land, either of the original owner or of
any of the Petitioner No. 1 & 2.
vi. That the structures (i.e., the residences of the
Petitioners), falling on the Yellow Area shown in the map
(accompanying to the notice), is vested in the said
Respondent Authority and it be vacated and handed over
to the Ahmedabad Municipal Corporation within a period
of 10 days of the receipt of this notice.
e. Apparently, the Respondent Authority had granted
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only seven days to the Petitioners to respond to the said
notices. At this stage it is clarified that where the
petitioners are living on a joint property, they were given
common notices.
f. In response to the aforesaid notices, the petitioners,
through their advocate, issued a legal representation
dated 01.05.2025, objecting to the notices and asserting
protection under the Slums Act. In the said
representation, There is a vague reference that an attempt
is being made by using the name of Saraswati Nagar in
malafide manner and that after denoting wrong house
numbers, an attempt is made to wriggle the possession of
these houses. It has also been stated as to what would be
the alternative which would be provided by the AMC to
the concerned aggrieved individuals (who are the
petitioners before this Court) - i.e., an alternative property
or compensation? That apart, certain other sympathetic
considerations were also raised, namely, that the said
individuals are uneducated persons, many of whom are
senior citizens, widows etc.
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g. That thereafter, yet another notice dated 02.05.2025,
came to be issued to the petitioners, whereunder the
petitioners were called for personal hearing on
06.05.2025.
h. The petitioners remained present and made their
representation to the Respondent Number 2 authority.
However, no action has been taken by the respondent to
withdraw or stay the eviction process and that the
petitioners, thus, are facing imminent evictions, without
any lawful procedure having been followed.
i. Post the filing of the present petition on 09.05.2025
with the Registry of this Court, but before it could be
registered and before a final number could be allotted to
it, it appears that, final orders dated 21.5.2025 [Annexure
H (Colly) to the Petition], came to be passed by
Respondent No. 2 under section 68 of the the Town
Planning Act and Rule 33 of the Town Planning Rules,
directing the petitioners to vacate the residential premises
situated on final plot number 486, within seven days.
Subsequently, on 23.5.2025, this Petition came to be
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registered as R/SCA/7325/2025.
4. Heard, learned advocates for the parties.
5. Learned Advocate Mr. D S Gadhavi, appearing for the
petitioners has submitted that the eviction notices have been
invoked under section 68 and rule 33 of the the Town Planning
Act, which do not override the protection granted under the
special statute, namely, the Slums Act. It was submitted that
this was more so when under section 17 of the Slums Area Act,
no persons can initiate any execute proceedings in respect of any
property situated in a declared Slum Area without the prayer
permission of the Prescribed Authority. It was vehemently
submitted that in the present case neither was such permission
sought or granted. It was submitted that directions for issuance
of summary eviction, without following the procedure under the
Slums Act, including providing of a hearing, conducting enquiry
and permission in terms of the provisions of the Slums Act
constitute grave violation of the principles of natural justice. It
was further submitted that final plot number 486 has been
reserved for slum upgradation, and that, therefore also, the said
plot may please be protected.
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6. It was submitted that the impugned notices constitute
violation of the fundamental rights of the petitioners, more
particularly, the Articles 19(1)(e) and 21 of the Indian
Constitution; that the impugned notices are arbitrary, illegal and
liable to be quashed as a petitioners have been in continuous
possession of the said land for more than 20 years, thereby
establishing their lawful possession and interest over the said
land / residential premises.
7. It was also submitted that the orders dated 21.05.2025,
passed by the AMC, the Respondent No. 2 herein, are arbitrary
mechanical and without application of mind. That the said
orders are stereotyped orders, issued identically to all the
petitioners without considering their individual facts
circumstance or the legal protections.
8. It was thus urged that the petition be allowed.
9. On the other hand, learned Government Pleader Mr. G H
Virk for the respondent no.2 and learned Asst. Government
Pleader Mr. Sahil B Trivedi for the State has submitted that in
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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, 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.
10. Having heard the learned advocate for the parties, this
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Court proceeds to decide the present petition in terms appearing
hereinafter.
11. At the outset, as is plain, the emphasis placed by the
petitioners by and large on the provisions of the Slums Act,
especially on section 17 of the said Act. For the ease of reference,
the said provision is quoted hereinbelow:
17. Proceedings for eviction of tenants not to taken without
permission of the prescribed authority.
(1) Notwithstanding anything contained in any other law for
the time being in force no person shall, except with the
previous permission in writing of the prescribed authority,-
(a) institute, after the commencement of this Act, any
suit or proceeding for obtaining any decree or order for
the eviction of a tenant from any building or land in a
slum area;
or
(b) where any decree or order is obtained in any suit or
proceeding instituted before such commencement for
the eviction of a tenant from any building or land in
such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred in
sub-section (1) shall make an application in writing to the
prescribed authority in such form and containing such
particulars as may be prescribed.
(3) On receipt of such application, the prescribed authority
after giving an opportunity to the parties of being heard and
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after making such summary enquiry into the circumstances
of the case as it thinks fit, shall by order in writing, either
grant or refuse to grant such permission.
(4) In granting or refusing to grant permission under sub-
sec. (3), the prescribed authority shall take into account the
following factors, namely:-
(a) whether alternative accommodation within the
means of the tenant would be available to him if he
were evicted;
(b) whether the eviction is in the interest of
improvement and clearance of the slum area;
(c) such other factors, if any, as may be prescribed.
(5) Where the prescribed authority refuses to grant the
permission it shall record a brief statement of the reasons
for such refusal and furnish a copy thereof to the applicant.
(6) Any person aggrieved by an order of the prescribed
authority refusing grant the permission under sub-section
(3) may, within such time as may be prescribed, prefer an
appeal to the to State Government and the State
Government may, after hearing the appellant, decide such
appeal and its decision shall be final.
12. The Slums Act does not define a "tenant". It only defines an
"occupier" and an "owner", respectively at Section 2(g) and 2(h)
of the Slums Act. The cursory look at the said provision indicates
that the term "occupier" inter alia includes the persons who, for
the time being are paying or liable to pay to the owner, rent or
any portion of the rent of the land or building in respect of which
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such rent is paid or payable. It also includes the owner in
occupation of or otherwise using his land and building; It further
provides for inclusion of a rent-free tenant of the land or
building. Similarly, the definition of owner under the Slums Act
at section 2(h) over defines owner, which inter alia includes a
person who is receiving or entitled to receive rent of any land or
building whether on his own account or on behalf of himself and
others.
13. What is thus apparent from the foregoing is that the
protection, under section 17, from eviction is only afforded to a
tenant, as opposed to owners or occupiers per se. Again, the
protection under section 17 of the Slums Act is only from
instituting proceedings for eviction of tenant. And where, in such
proceedings instituted before coming into effect of the Slums Act,
the tenant has already been evicted, in such case, the protection
is against the execution of such decree, without requisite
permission envisaged under section 17. Thus, it is plain that not
every dweller, rather not every occupant or owner are protected
in terms of section 17.
14. Moreover, it may be noted that any remedy available to
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such aggrieved person, for the reason of grant or otherwise of the
permission under section 17, is to approach the State
Government.
15. In the present case, there is no question of any alleged
proceedings taken out by the concerned owner of a land or a
building against any tenant for eviction. In such circumstances,
clearly, the provisions of objection 17 cannot be invoked.
16. What remains now are the authorities relied on by the
State, namely Vimlaben (supra). The paragraph 7 of Vimlaben
(supra), which was relied upon by the State, is quoted here in
below for the ease of reference:
7. Now so far as the contention on behalf of the plaintiffs that
in the draft town planning scheme properties of the appellants
- original plaintiffs were not affected and were not going under
18 meter wide town planning road and thereafter, without
giving any opportunity to appellants, notice under Section 68
of the Act and Rule 33 of the Rules have been issued and
therefore, same is in breach of section 19 of the Act is
concerned, first of all, section 19 of the Act would not be
applicable at all as it is with respect to variation in the draft
development plan and not with respect to town planning
scheme. It is also required to be noted that there is final
planning scheme which has become final under the provisions
of the Act and town planning scheme has become final after
following due procedure of law i.e. after draft town planning
scheme, preliminary town planning scheme and final town
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planning scheme. At this stage it is required to be noted that
appellants herein - original plaintiffs have not challenged town
planning scheme which has become final. As stated above,
notice under Section 68 of the Act and Rule 33 of the Rules is
for implementation of the town planning scheme which has
become final and the properties in question are going under 18
meter wide town planning road under the aforesaid final town
planning scheme. Once town planning scheme has become
final and land/properties is required for the purpose of 18
meter wide town planning road under the finalized town
planning scheme, in absence of challenge to the town planning
scheme, the consequences are inevitable. The persons who are
in occupation of the land are required to hand over peaceful
and vacant possession of the land which is needed for the
purpose of implementation of the town planning scheme and
the only thing which was required to be done was service of
notice as contemplated under Section 68 of the Act and Rule
33 of the Rules and such notices are served upon the
appellants. As the notices are in consequence of the town
planning scheme which has become final the appellants have
no right to continue to be in possession and occupation of the
land in question which is required for the purpose of
implementation of the town planning scheme, which is not
challenged by the appellants. When for the purpose of
implementation of the town planning scheme the notices are
issued upon the appellants as contemplated under Section 68
of the Act and Rule 33 of the Rules and the appellants are
called upon to hand over peaceful and vacant possession of the
land in question, it cannot be said that the action of the
respondent is in any way illegal and/or contrary to the
provisions of the Act.
17. Undisputedly, the Town Planning Scheme has become final
after following due process of law. There is no challenge to the
said Scheme. In the circumstances, notice under section 68,
read with rule 33 is inevitable, rather a procedural consequence
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and on receipt of the same, the petitioners are required to
handover vacant and peaceful possession, as called for under
the notice. That being the legal position, it cannot be stated that
the petitioners' case has any merits on this count. The other
case laws relied on by the State are following the same dictum of
law, and that therefore, without adverting to them, it may be
noted that the same do not support the stand taken by
petitioners in the present petition. Thus the question of quashing
and setting aside the impugned order dated 21.05.2025
(Annexure-H of the Petition) does not arise.
18. In so far as argument of the learned advocate for the
petitioner that the final plot number 486 having been reserved
for slum upgradation, the learned advocate for the State had
made a categorical statement before this Court that the said final
plot 486 shall not be disturbed to the extent that it is not
overlapping over 24.38 m or the 12.19 m TP Scheme Road; and
that anything beyond such road line, the said area reserved for
slum upgradation, is not going to be disturbed. It was also the
statement of the learned advocate of the State that the parties
forming part of final plot number 486 have been surveyed and
that they may even be given alternate accommodation, if they
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qualify under the Slums Act. Liberty is thus reserved in favour of
the petitioners in respect of agitating their cause for
upgradation of the slums, for which the petitioners may
approach the competent authority.
19. Subject to the liberty reserved as aforesaid, there being no
merits in the present petition, it is hereby disposed of as
rejected.
(J. L. ODEDRA, J)
Further Orders:
1. After pronouncement of this judgment, the learned
advocate for the petitioners has prayed that the Judgment be
stayed for a period of ten days so as to enable them to approach
appellate forum.
2. On the other hand, the learned Asst. Government Pleader
Mr. Sahil Trivedi for the State and Mr. Jagat Shah for Mr. S H
Virk appearing for the respondent no.2 has submitted that the
road in question insofar as the present petition i.e., 24.38 meters
or 12.19 meters road has been cleared, except for the portion
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where the plots or premises of the petitioners are concerned;
that staying the Judgment of this petition at this stage, would
result in unimaginable hardships in implementing the Final
Scheme.
3. Having heard the both sides on the question of staying this
Judgment, this Court has come to a conclusion to not stay the
same, more so when the applicable case-laws, more particularly,
the judgment in the case of Vimlaben Ramsagar Mishra and Anr.
Vs. Ahmedabad Municipal Corporation reported at 2009 SCC
Online Gujarat 6413 has categorically held that Notice under
Section 68 read with Rule 33 are the inevitable consequence
upon finalization of a TP Scheme and upon the finalization, the
recipient of Notice under Section 68 (read with Rule 33) has no
option but to hand over vacant and peaceful possession of the
area comprised in such Notice.
4. In view of the aforesaid, as indicated hereinabove, this
Court hereby rejects the request for stay of this Judgment.
(J. L. ODEDRA, J)
JIGAR J RABARI
