Excerpt
A single-judge Bench of Gujarat High Court consisting of Honorable Justice Bhargav D. Karia had been hearing submissions of the applicant to exercise writ jurisdiction. The Bench perused the record of the case and dismissed the petitions as those were devoid of any merit in the case of Modi Nareshkumar Ramanlal v. the State of Gujarat.
Facts of the Case
The issues and the facts were common in both the petitions filed by the Petitioners; hence they were heard together by this Court and would be disposed of by a common order.
The brief facts of the present case state the Petitioners having a shop of readymade garments at Visnagar, within the Visnagar Municipality. He had been running the shop in the name of Nilkanth at Maya Bazar.
The case of the Petitioners was that earlier, some third party had made an application to the Municipality for taking an action against the Petitioners due to illegal encroachment. Pursuant thereto, notices had been issued to them which were later replied to by the Petitioners. The Petitioners had challenged such notices by preferring Regular Civil suits before the Court of Principal Senior Civil Judge, Visnagar along with an injunction application which was pending before the said Court. It was the case of the Petitioners that during the pendency of that Civil Suit, impugned notice dated 30.12.2020 came to be issued by the Respondent No.2 and henceforth, being aggrieved by it, the Petitioners had preferred the present petitions with certain prayers.
Submissions before the Court
Applicant’s Submissions
The prayers made in the petitions by the Petitioners were that to issue a writ of mandamus or any other such appropriate writ, order or direction in the nature of mandamus to quash and set aside the notice dated 30.12.2020, which was issued by the Respondent No.2 (AnnexureA). Further, pending the admission, hearing and final disposal of the present petitions, the Honourable Court might be pleased to put a stay on the further operation, implementation and execution of the said notice passed by the Respondent no.2.
Mr Gadhavi, learned advocate for the Petitioners had stated that the impugned notices were issued by the Respondent Nagar Palika on account of failure by the Petitioners in complying with the earlier notices. He had further submitted that the Petitioners had also filed an online application before the Urban Development Authority for permission. Moreover, Mr Gadhavi had relied upon the decision of this Court in the case of Jiteshkumar Kanchanlal Gandhi v. State of Gujarat 2020(1) GLH (UJ) 5 to show that how without giving any opportunity of hearing to the Petitioners, the respondent Nagar Palika could not seal the premises under Section 36 of the Gujarat Urban Town Planning and Urban Development Act, 1976.
Consideration by Court
The Court perused the materials on record, from which it appeared that the earlier notices were already challenged by the petitioners by filing Regular Civil Suits in the Court of Senior Civil Judge at Visnagar and the Court had seized the matter concerning the earlier notices. The impugned notices were issued for not complying with those earlier notices. Therefore, impugned notice was in continuance and consequential to the said earlier notices.
Earlier notices as issued by the Nagar Palika were not placed on record. Moreover, even what orders were passed by the Civil Court were also not placed on record for perusal.
Having gone through the aforesaid judgment as pointed out by the learned Advocate for the Petitioner, it appeared that the said judgment was covered under the provisions of Gujarat Town Planning and Urban Development Act, 1976. In absence of the earlier notices issued by the Respondent Nagar Palika being placed on record, it was tough to know as to under which provisions of the Act, the said earlier notices had been issued. On the perusal of averments made in the memo of the plaint, as placed on record, it appeared to the Court that the notices dated 20.9.2018, 30.11.2018 and 31.7.2019 were issued by the Respondent Nagar Palika but under which provisions of the law such notices were issued had not been stated in the entire plaint. So, in such circumstances, it wasn’t possible to apply the judgment relied upon by the learned Advocate for the Petitioners, considering the facts of the present case.
Court’s Directions
Keeping in view the aforesaid facts and circumstances of the present case, the petitions were dismissed. This was because the petitions were devoid of any merit, as the matter was subjudice before the Civil Court and as the Petitioners had already availed an alternative remedy, no interference was required to be made in exercise of the writ jurisdiction.
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