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2019 DIGILAW 1026 (GUJ)

Jiteshkumar Kanchanlal Gandhi v. State of Gujarat

2019-10-22

V.M.PANCHOLI

body2019
ORDER : V.M. Pancholi, J. 1. Looking to the issue involved in the present petition, the same is taken up for final disposal, with the consent of the learned advocates appearing for the parties. Hence, Rule. Mr. K.M. Antani, learned Assistant Government Pleader, waives service of notice of Rule for respondent No. 1 and Mr. Vishrut Jani, learned advocate, waives service of notice of Rule for respondent No. 2. 2. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed for the following reliefs: "(A) Your Lordships may be pleased to admit and allow this appeal; (B) Your Lordships may be pleased to issue writ in the nature of mandamus, certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 31/8/2019 passed by the respondent no. 2 -authority No. BAUDA/GEKABA/Seal/Vashi/1114 to 1116 and be pleased to direct the respondent no. 2 authority to remove the seal from the property in question of the petitioner and further be pleased to direct the respondent no. 2 authority to decide a case of the present petitioner de-novo after giving an opportunity of hearing to the petitioner. (C) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authority to remove the seal from the property in question of the petitioner and be allowed the petitioner to use the property in question. (D) Any other relief deemed just and proper may please be granted in the interest of justice." 3. Learned advocate for the petitioner submitted that the petitioner had filed a petition being Special Civil Application No. 3344 of 2019 challenging the order dated 01.02.2019 before this Court. The said petition was disposed of vide order dated 22.07.2019 with a direction to the respondent authority to decide the issue after giving an opportunity of hearing to all concerned. 3.1. The grievance of the petitioner in the present petition is that though this Court has specifically directed the respondent authority to give an opportunity of hearing to the petitioner, the impugned order dated 31.08.2019 is passed by the respondent authority, by which, the premises in question of the petitioner has been sealed. 3.1. The grievance of the petitioner in the present petition is that though this Court has specifically directed the respondent authority to give an opportunity of hearing to the petitioner, the impugned order dated 31.08.2019 is passed by the respondent authority, by which, the premises in question of the petitioner has been sealed. It is the specific case of the petitioner that notice issued by the respondent authority was not served to the petitioner and hearing was fixed on 20.08.2019 and on the very same day, the decision was taken. However, the said decision was communicated to the petitioner vide impugned order dated 31.08.2019. It is, therefore, urged that the impugned order be set aside only on the ground of violation of principles of natural justice. 3.2. At this stage, learned advocate for the petitioner has referred the provisions contained in Section 36 of the Gujarat Town Planning and Urban Development Act, 1976 ('the Act' for short). After referring to the said decision, it is submitted that as per the said provision, the respondent authority is empowered to demolish the construction or prosecute the owner for not complying with the notice. However, there is no provision for sealing of the premises. It is further contended that the procedure prescribed under Section 36 of the Act is not followed by the respondent authority and, therefore, the impugned order be set aside and the matter be remitted back to the respondent authority for deciding the issue afresh. 3.3. Learned advocate for the petitioner pointed out that in the first round of litigation, this Court has initially passed an order directing the parties to maintain status-quo and at the relevant point of time, the premises of the petitioner was not sealed. However, because of the impugned order dated 31.08.2019, now the premises of the petitioner has been sealed by the respondent authority. 4. On the other hand, Mr. Vishrut Jani, learned Assistant Government Pleader, has referred the averments made in the affidavit-in-reply filed by respondent No. 2 and more particularly, referred Paragraph-7 thereof. As per the said averment, advocate of the petitioner was informed to remain present on 20.08.2019. On 20.08.2019, the petitioner or his advocate did not remain present and, therefore, the impugned order was passed. It is, therefore, urged that this Court may not interfere with the impugned order passed by the respondent authority. 5. As per the said averment, advocate of the petitioner was informed to remain present on 20.08.2019. On 20.08.2019, the petitioner or his advocate did not remain present and, therefore, the impugned order was passed. It is, therefore, urged that this Court may not interfere with the impugned order passed by the respondent authority. 5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that initially, notice was issued by the respondent authority to the petitioner and passed an order on 01.02.2019. At the relevant point of time, the premises of the petitioner was not sealed as contended by the learned advocate for the petitioner and, therefore, this Court has passed an order of status-quo with regard to the property in question. Thereafter, vide order dated 22.07.2019, this Court disposed of the said petition with a direction to the respondent authority to give an opportunity of hearing to all the concerned. 6. Now, it is a case of respondent No. 2 that notice was issued to the advocate for the petitioner. However, he did not remain present on 20.08.2019 and, therefore, with an immediate effect, the property was sealed. Thus, it is not in dispute that the impugned order has been passed by the respondent authority without giving reasonable opportunity of hearing to the petitioner. 7. At this stage, the provisions contained in Section 36 of the Act is required to be referred to. Thus, it is not in dispute that the impugned order has been passed by the respondent authority without giving reasonable opportunity of hearing to the petitioner. 7. At this stage, the provisions contained in Section 36 of the Act is required to be referred to. Section 36 of the Act provides as under: "Section 36: Power to require removal of unauthorised development or use (1) Where any development has been carried out in any of the circumstances referred to in sub-section (1) of section 35, or any use of land or building or work is continued so as to constitute an offence punishable under sub-section (2) of that section, the appropriate authority may, subject to the provisions of this section and within three years of such development, or continuance of use so made, serve on the owner a notice requiring him, within such period, being not less than one month as may be specified therein, after the service of the notice, to take such steps as may be specified in the notice,- (a) to restore the land or building to its condition existing before the said development took place, in cases specified in clause (a) or clause (c) of sub-section (1) of section 35; (b) to secure compliance with the conditions or with the permission as modified, as the case may be, in cases specified in clause (b) or clause (d) of sub-section (1) of section 35; (c) to discontinue such use of building or land or work: Provided that where the notice requires the discontinuance of any use of land or building, the appropriate authority shall also serve a notice on the occupier. (2) The steps that may be specified in the notice under sub- section (1) may include the following, namely:- (a) the demolition or alteration of any building or work; (b) the carrying out on land of any building or other operations. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply to the appropriate authority for withdrawal of the notice. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply to the appropriate authority for withdrawal of the notice. (4) If, after hearing the applicant, the appropriate authority directs that the notice shall be withdrawn as respects any of the matters specified therein in relation to any building, or work or land, the notice shall stand withdrawn to that extent and thereupon the owner shall be required to take steps specified in the notice under sub-section (1) as respects the other matters and as respects the building, work or the land with respect to which the notice may not have been withdrawn. (5) If within the period specified in the notice under sub- section (1), or, as the case may be, within such period as may be prescribed, after disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the appropriate authority may. (a) prosecute the owner for not complying with the notice and, where the notice requires the discontinuance of any use of land or building any other person also who uses the land or building or causes or permits the land or building to be used in contravention of the notice; and (b) where the notice requires the demolition or alteration of any building or work or the carrying out of any building or other operations, itself cause the restoration of the building to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the appropriate authority may consider necessary, including demolition or alteration of any building or work or carrying out of any building or other operations, and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue. (6) Any person prosecuted under clause (a) of sub-section (5) shall, on conviction, be punished with fine which may extend to 39 "fifty thousand rupees", and in the case of a continuing offence, with a further fine which may extend to 40 "one thousand rupees" for every day during which such offence continues after conviction for the first offence." 8. From the aforesaid provision, it is revealed that the respondent authority has no power to seal the premises. From the aforesaid provision, it is revealed that the respondent authority has no power to seal the premises. In the present case, without giving reasonable opportunity of hearing to the petitioner, the premises in question is sealed by the respondent authority with immediate effect and, therefore, the impugned order is required to be set aside. Accordingly, the same is quashed and set aside. Respondent No. 2 is directed to open the seal of the premises in question with immediate effect. The matter is remitted back to respondent No. 2 for deciding the issue afresh. Respondent No. 2 shall give reasonable opportunity of hearing to the petitioner and, thereafter, pass an appropriate order, in accordance with law. 9. The petition is, accordingly, allowed. Rule is made absolute, to the aforesaid extent. Direct Service, today, is permitted.