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SCA/11935/2009 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11935 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JAICHAND
SIDDHNATH VISHWAKARMA & 37 - Petitioner(s)
Versus
MUNICIPAL
CORPORATION OF CITY OF AHMEDABAD & 1 - Respondent(s)
=========================================================
Appearance
:
MS
AMEE YAJNIK for
Petitioner(s) : 1 - 38.
MR ASIM PANDYA FOR HL PATEL ADVOCATES for
Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/02/2010
ORAL
JUDGMENT
Rule.
Mr.Asim Pandya, learned advocate for H.L. Patel Advocates waives the
service of notice of rule on behalf of the respondents.
In
the facts and circumstances of the case and with the consent of the
learned advocates appearing on behalf of the respective parties,
present petition is taken up for final hearing today.
By
way of this petition under Article 226 of the Constitution of India,
the petitioners have prayed for appropriate writ, order and/or
direction restraining the respondents, their agents, servants etc.
permanently from evicting and dispossessing any of the petitioners
from the subject premises i.e. from Plot Nos.252 and 253 of Town
Planning Scheme No. 29, Ward No.11 of Ahmedabad City, popularly
known as Bhaiyaji ni Chali , Naranpura, Ahmedabad. It is also
prayed for appropriate writ, order and/or directions to quash and
set aside the notice issued under sec.212(2) of the BPMC Act.
Ms.Ami
Yajnik, learned advocate appearing
on behalf of the petitioners has heavily relied upon the
decision of the Division Bench of this Court in the case of Killol
V. Shelat Vs. Municipal Corporation of City of Ahmedabad and Anr.
reported in 2009(1) GLH 13.
It is submitted that as held by the Division Bench, before
Commissioner can prescribe a street line under clause (a) of
sub-section 1 of Section 210 of the Act, which is likely to be
adversely affected to any citizens i.e. land owner, or occupier with
or without building thereon, the Commissioner must give a fair
hearing to such persons. It is submitted that in the aforesaid case
when a street line was prescribed which resulted into road widening
without following principles of natural justice, without inviting
and considering the objections of the persons who are likely to be
adversely affected by a such road widening, the Division Bench
quashed and set aside the same by further quashing and setting aside
the consequent eviction notice. It is submitted that in the present
case also the street line has been prescribed which resulted
into road widening, without following principles of natural justice
and without inviting and considering the objections of the
petitioners who are likely to be adversely affected by such road
widening. Therefore, it is requested to allow the present Special
Civil Application and quash and set aside the impugned order/
notice.
The
petition is opposed by Mr.Asim Pandya, learned
advocate appearing on behalf of the respondents.
It is submitted that as such the impugned notices/orders issued
passed after giving opportunity to the petitioners and after
considering their objections and therefore, it cannot be said that
impugned notices/orders are in breach of principles of natural
justice.
Having
heard the learned advocates appearing on behalf of the respective
parties and considering the facts and circumstances of the case, the
controversy raised in the present petition is now not res-integra.
In view of the decision of the Division Bench in the case of
Killol V. Shelat
(supra) as well as the decision dtd.29/12/2009 rendered by this
Court in Special
Civil Application No.12980
of 2009 and other allied matters, it was suggested that let the
notices dtd.23/9/2008 issued under sec.212(1)(a) of the BPMC Act be
treated as show cause notice and to that the petitioners can
submit their objections and suggestions before the Commissioner,
Ahmedabad Municipal Corporation. To that, the learned advocate
appearing on behalf of the respective petitioners have no
objection.
Ms.Amee
Yajnik, learned advocate appearing on behalf of the petitioners
and Mr.Asim Pandya, learned
advocate appearing on behalf of the respondents have agreed
and jointly submitted that let the notices dtd.23/9/2008 be treated
as notices for hearing while prescribing the road line under clause
(a) of sub-section 1 of Section 210 of the Act and let the
petitioners appear before the Commissioner, Ahmedabad Municipal
Corporation on 22/3/2010 as agreed and submit their objections and
suggestions and let the Commissioner, Ahmedabad Municipal
Corporation give fair hearing and consider the objections of the
petitioners and pass an appropriate order in accordance with law.
Ms.Amee
Yajnik, learned advocate appearing
on behalf of the petitioners has submitted that the
petitioner Nos.1 and 2
shall represent and/or appear before the Commissioner, Ahmedabad
Municipal Corporation for themselves and for and on behalf of other
petitioners.
Accordingly
and in view of the above and considering the decision of the
Division Bench in the case of Killol
V. Shelat
(supra) as well as the decision dtd.29/12/2009 rendered by this
Court in Special Civil Application No.12980 of 2009 and other allied
matters, the impugned notices/orders issued under sec.212(1)(a)
dtd.23/9/2008 is hereby required to be quashed and set aside and the
same is required to be treated as notice for hearing while
prescribing the
road line under clause (a) of sub-section 1 of Section 210 of the
Act and let the petitioner Nos.1 and 2 appear before the
Commissioner, Ahmedabad Municipal Corporation on 22/3/2010 as agreed
and submit their objections and suggestions for themselves and for
other petitioners and let the Commissioner, Ahmedabad Municipal
Corporation give fair hearing and consider the objections of the
petitioners and pass an appropriate order in accordance with law.
For
the reasons stated above, the petition succeeds in part. As
agreed between the learned advocates appearing on behalf of the
respective parties, the impugned notices/orders be treated as show
cause notice for prescribing
the road line under clause (a) of sub-section 1 of Section 210 of
the BPMC Act while widening the road in question.
Ms.Amee
Yajnik, the learned advocate appearing on behalf of the petitioners
has submitted that the petitioner Nos.1 and 2 for themselves and
for and on behalf of the remaining petitioners shall appear before
the Commissioner, Ahmedabad Municipal Corporation for hearing on
22/3/2010, as held by the Division Bench in the case of Killol
V. Shelat
(supra) and thereafter, the Commissioner, Ahmedabad Municipal
Corporation to pass appropriate order with respect to prescription
and/or widening of the road line in question as per sec.210(1)(a) of
the BPMC Act, after considering the objections and submissions to be
made by the respective petitioners. The said exercise to be
completed on or before 8/4/2010 and thereafter the Commissioner,
Ahmedabad Municipal Corporation to follow the procedure as required
under secs.211 to 216 of the BPMC Act, 1949 on the basis of the
decision that may be taken by the Commissioner, Ahmedabad Municipal
Corporation at the earliest.
With
these present Special Civil Application is allowed.
Rule is made absolute to the aforesaid extent. In
the facts and circumstances of the case, there shall be no order as
to costs.
[M.R.
SHAH, J.]
rafik
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