IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8531 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE D.C.SRIVASTAVA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- NIRUBEN NARMADASHANKER BHATT Versus A'BAD URBAN DEVELOPMENT AUTHORITY -------------------------------------------------------------- Appearance: MR BA SURTI for Petitioners MR RC JANI for Respondent No. 1 MS. MANISHA LAVKUMAR for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE D.C.SRIVASTAVA Date of decision: 14/10/1999 ORAL JUDGEMENT The prayer of the petitioners in this writ petition is to quash the show cause notice annexure-D issued by the respondent No. 1 inasmuch as it is illegal, null and void and bad in law. List has been revised twice. None appears for the petitioners. As such, learned A.G.P. has been heard. The petition has examined so also the counter-affidavit. An objection has been taken by the learned A.G.P. that the writ petition has been filed against the show cause notice and that the petitioners had equally efficacious remedy by approaching the authority who issued notice annexure-D and there they could have satisfied the authorities that the notice is uncalled for or illegal and since this has not been done, the petition deserves to be dismissed. It may however be mentioned that the petition was straightway admitted on 8.10.1998 and at that time the respondents were not heard. Consequently, this objection can be permitted to be raised by the learned A.G.P. at the stage of final hearing. Examination of annexure-D shows that it is nothing but a show cause notice which was issued to the petitioners in which certain informations were sought from the petitioners. One was sanctioned plan, raja chitti and the other was the present position of the construction according to the map. Instead of furnishing these informations, the petitioners chose to file this writ petition. Normally when the petitioners had opportunity to appear before the authority issuing the show cause notice annexure-D there is no reason why they should be permitted to approach this court without availing of the alternative remedy. It is not the case that in response to the show cause notice they did not approach the respondents. On the other hand in para 4.7 of the writ petition it is admitted that the petitioners approached the respondent No. 1 and they have been orally informed that if sanctioned plan and raja chitti are not placed before him then he may take high handed action of demolition as per the provisions of the Gujarat Town Planning Act. In view of this apprehension which is ill-conceived that the petitioners have filed this writ petition. Oral threat of the respondent No. 1 is hardly believable. If the petitioners would have filed the sanctioned plan and raja chitti they could be heard by the respondent No. 1. On the other hand they were taking lame excuses that the sanctioned plan and the raja chitti are not with them and that the same may be with the original owner. From the counter affidavit of D.U. Prajapati it appears that the records were destroyed and burnt in the year 1990 for which a criminal complaint was also filed. In this counter affidavit it is further stated that there is no evidence available with the respondents from which it can be said that the plans were sanctioned. Thus, in these circumstances, if the records were burnt in the office of the respondent No. 1, the best person to furnish secondary evidence would have been the petitioners. They should have approached the original owner to help them in the matter. Instead of doing that, they have rushed to this court and were successful in obtaining interim order on 8.10.1998. Thus, in the first place, the writ petition against the show cause notice is not maintainable and as such it has to be dismissed as not maintainable. Even if the contents of show cause notice annexure-D are examined it can be said that no decision adverse to the petitioners was ever taken by the respondents and that the petitioners were asked only to furnish two informations which they declined to furnish on lame excuse. Since no decision was taken in the impugned notice annexure-D by the respondents against the petitioners the same cannot be said to be illegal nor it can be said to have been issued without application of mind. The question of application of mind would have arisen only when the show cause notice would have been issued after taking some decision. There is also no merit in the plea contained in para 4.6 of the writ petition that the respondent No. 1 has wrongly exercised powers under Section 36 of the Gujarat Town Planning Act and as such the show cause notice is invalid. The petitioners plea in para 5 of the petition that they have no alternative efficacious remedy is also incorrect. The alternative remedy is to approach the respondent No. 1 who has issued the show cause notice and satisfy the said respondent No. 1 and obtain necessary orders and then the petitioners should have approached this court if the orders were passed against them. Thus, I do not find any merit in this petition as well. The writ petition has therefore to be dismissed as not maintainable and also on merits. The petition is dismissed. Interim order dated 8.10.1998 is vacated. No order as to costs. 00000 [pkn]