Vinodbhai N Bhimani vs Ahmedabad Municipal Corporation and Others

Honourable Mr. Justice R.M. Chhaya

The present petition is filed by one of the members of the society who is resident of respondent No. 5 society and has prayed for the following reliefs:-

a. Your Lordships may be pleased to admit and allow this writ petition;

b. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent No. 1 to remove the illegal construction made on the common plot of the Respondent No. 5 society by the Respondent No. 3 and 4, forthwith.

c. By way of interim relief, be pleased to direct the Respondent No. 1 to submit the report about the illegal construction made by the Respondent No. 3 and 4 on the common plot of the Respondent No. 5 Society.

d. To pass such other and further order/s necessary in the interest of justice.

Mr. A.V. Prajapati, learned advocate for the petitioner has pointed out that respondent Nos.3 and 4 herein have carried out construction in the land, which as per the layout of the society, is a common plot (block). It further appears from the record that on a complaint filed, a notice as provided u/s 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act") was issued by the respondent Corporation on 6.9.2011 and after considering the reply filed by respondent No. 5 society, the same has culminated into an order/notice as provided u/s 260(2) of the Act dated 2.12.2011. On bare perusal of the aforesaid order/notice dated 2.12.2011, it appears that the respondent Corporation has found the construction over the common open plot to be unauthorized. Mr. A.V. Prajapati, learned advocate for the petitioner states that inspite of such a specific order has been passed on 2.12.2011, no actions are yet taken by the respondent Corporation. The learned advocate for the petitioner has also invited attention of this Court to the representations filed by the society itself to the Collector as well as the Commissioner of the respondent Corporation.

The learned advocate for the petitioner candidly submits that in fact the construction which is held to be unauthorized by order dated 2.12.2011 is made by respondent Nos.3 and 4 herein, but from the record, it appears that no notice has been issued by the respondent Corporation to respondent Nos.3 and 4 and therefore, no direction as prayed for can be granted by this Court. Respondent No. 1 is duty bound to follow the principles of natural justice and put respondent Nos.3 and 4 to notice even while implementing the order dated 2.12.2011 as the show cause notice indicates that it was issued to respondent No. 5 society.

In view of the above, this petition is not entertained. However, respondent No. 1 Corporation is hereby directed to consider the representation filed by the petitioner and after giving an opportunity of being heard to the real affected persons i.e. respondent Nos.3 and 4, take appropriate action in accordance with law and as per the provisions of the Act as well as general development regulations that are applicable, as expeditiously as possible. With these observations, this petition is disposed of at this stage with no order as to costs. Direct service is permitted.