Madresa-E-Islamiya Sarvajanik Trust vs Bhavnagar Municipal Corporation

Nirzar S. Desai, J

By way of this petition, the petitioner has prayed for following reliefs:

(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned notice dated 27.02.2023 issued by respondent no.2 authority (Annexure ‘A’) under the provisions of Sec. 48(1) of the Gujarat Town Planning & Urban Development Act, 1976 Rules framed there under thereby directing the petitioner trust to open the land occupied by the petitioner trust and hand over the possession the Respondent Corporation, as being illegal, arbitrary, unreasonable, unjustified, dehors the provisions of the Act as also violative of Art.14 and 19 of the Constitution of India.

(B) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned notice dated 27.02.2023 issued by respondent no.2 authority (Annexure ‘A’) and further be pleased to direct the respondents to maintain status quo qua the subject land pending the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS be pleased to direct the respondent authorities to take a decision on the representation / reply dated 01.03.2023 (Annexure ‘B’) submitted by petitioner trust to Respondent no.1 in reply to the impugned notice, within such stipulated time as may be deemed fit by this Hon’ble Court after affording an effective opportunity of hearing to the petitioner and till such time respondents may be directed to maintain status quo qua the subject land in the interest of justice and equity.

(D) YOUR LORDSHIPS be pleased to pass such other and further order as the nature and circumstances of the case may be required, in in the interest of justice;”

When the matter was mentioned for urgent circulation, this Court had instructed learned advocate Mr.Munshaw to accept the advanced copy on behalf of Bhavnagar Municipal Corporation and to take instructions. Accordingly, learned advocate Mr.Munshaw appeared.

The matter was listed before this Court yesterday i.e. on 13.03.2023 and as learned advocate Mr.Munshaw requested for time to take further instructions, the matter was listed today in per court board at serial no.5 and accordingly the matter was taken up.

4.1 The grievance of the petitioner is that while implementing the Draft Town Planning Scheme, the petitioner Madresa – E- Islamiya Sarvajanik Trust which runs school, orphanage and hostel at Gogha Road, Akwada will be affected as Town Planning Road is proposed in such a way that for implementing aforesaid Draft Town Planning Scheme, either the compound wall or some portion of the building owned and occupied by the said trust would be required to be demolished.

4.2 The principle grievance of learned advocate Mr.Rachh, as canvassed on behalf of the petitioner, is that before implementing the Draft Town Planning Scheme, at the stage of Section 48 of the Gujarat Town Planning and Urban Development Act, 1976, the petitioner is not heard and hence without following principles of natural justice, the scheme is being implemented.

Learned advocate Mr.Munshaw took instructions and submitted that the process in respect of town planning road is going on and Bhavnagar Municipal Corporation is ready and willing to hear the petitioner. Hence, upon agreement of learned advocate Mr.Rachh and learned advocate Mr.Munshaw, who, in turn, have taken consent from their respective clients, the parties have reached to the following agreement.

5.1 The petitioner shall appear before Commissioner, Bhavnagar Municipal Corporation and Chief Town Planner of Bhavnagar Municipal Corporation on 21.03.2023 at 12:00 in the afternoon along with the representation and other documentary evidences, which they are relying upon and the Commissioner, Bhavnagar Municipal Corporation and / or any other authority to whom powers are delegated will hear the petitioner and a decision will be taken on 27.03.2023 at 11:00 a.m.

5.2 Learned advocate Mr.Rachh undertakes on behalf of the petitioner that the petitioner shall remain present on 27.03.2023 at 11:00 a.m. before the Commissioner, Bhavnagar Municipal Corporation and there the decision that may be taken shall be delivered to the petitioner through hand-delivery and the said decision shall also be communicated to the petitioner through R.P.A.D.;

5.3 The Commissioner, Bhavnagar Municipal Corporation, after hearing the petitioner shall pass a reasoned order;

5.4. the decision that Bhavnagar Municipal Corporation may take on 27.03.2023 shall not be acted upon till 2:30 p.m. on 28.03.2023 if it is against the present petitioner.

In view of above broad consensus arrived at between the parties, without going into the merits of the matter, the present petition is disposed of. Rights and contentions of all the parties are kept open.