SCA/21226/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21226 of 2007 with SPECIAL CIVIL APPLICATION No. 21227 of 2007 to SPECIAL CIVIL APPLICATION No. 21230 of 2007 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= BHARVAD JASABHAI NAGJIBHAI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR NIRAV C THAKKAR for Petitioners MS MINI M NAIR, AGP for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 3. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 01/07/2008 ORAL JUDGMENT 1. This group of petitions deal with similar issues and are therefore, being disposed of by a common SCA/21226/2007 2/5 JUDGMENT order. Reference is being made to Special Civil Application No.21226 of 2007 only, for the sake of convenience. 2. By filing this petition, the following prayers have been made: (A) To admit this petition; (B) To issue appropriate writ, order or direction directing the respondents (i) To fix the rent to be charged from the petitioner pursuant to the decision of giving the land on rent to the petitioner being land of City Survey No.1972 Chalta No.268 Sheet No.13 situate in Dhrol forthwith and (ii) Not to dispossess or evict the petitioner from the land being land of City Survey No.1972 Chalta No.268 Sheet No.13 situate in Dhrol more particularly on basis of communication/ order of the respondent No.3 dated 26.7.2007; (BB) Alternatively, it is prayed that if the siad land being City Survey No.1972 Chalta No.268 Sheet No.13 situate in Dhrol is absolutely required by the respondents for some public purpose, then the petitioner may be accomodated on some different land by the respondent authorities considering the facts and circumstances of the case; SCA/21226/2007 3/5 JUDGMENT (D) During pendency and final hearing of this petitoin, be pleased to direct the respondents not to dispossess or evict the petitioner from the land of City Survey No.1972 Chalta No.268 Sheet No.13 situate in Dhrol...” 3. It is submitted by Mr.Nirav C.Thakker, learned counsel for the petitioners that during the pendency of these petitions, the Collector has passed order dated 25.9.2007 under the provisions of Section 258(1) of the Gujarat Municipalities Act, 1963 (“the Act” for short), which is annexed as Annexure-M to Special Civil Application No.21226 of 2007. The learned counsel for the petitioners has drawn the attention of this Court to interim order dated 21.8.2007 (Coram: Ravi R.Tripathi, J.), the operative part of which reads as under: “4. It is clarified that it will be open for the Collector to take the matter for consideration and pass a fresh order. However, fresh order passed, if any, shall not be acted upon without prior permission of this Court. Direct service is permitted.” 4. It has been submitted that the order dated SCA/21226/2007 4/5 JUDGMENT 25.9.2007 has been passed by the Collector without giving the petitioners an opportunity of hearing and, therefore, the same may not be acted upon, as directed by this Court vide order dated 21.8.2007. 5. A perusal of the order dated 25.9.2007 makes it clear that it has been passed under the provisions of Section 258(1) of the Act, whereby the Collector has set aside the Resolution dated 23.3.2005 of the respondent No.2-Municipality. Section 258(3) of the Act provides that the Municipality may prefer an appeal to the State Government against the order of the Collector. It is represented by Ms.Mini M.Nair, learned Assistant Government Pleader that it is open to the petitioners to file a revision under the provisions of Section 264 of the Act, if they are aggrieved by the order dated 25.9.2007. 6. In view of the above provisions of law and without going into the merits of the case, it is open to the respondent No.2-Municipality to file SCA/21226/2007 5/5 JUDGMENT an appeal against the order dated 25.9.2007 under the provisions of Section 258(3) of the Act. Similarly, it is open to the petitioners to take recourse to the statutory remedy under Section 264 of the Act. In view of the direction of this Court contained in interim order dated 21.8.2007, that the order of the Collector shall not be acted upon, without prior permission of the Court, it is directed that, if the petitioners file a revision under Section 264 of the Act, the competent authority will hear and decide the same after giving them an opportunity of hearing, and in accordance with law. Till the decision is taken on the said revision, the order of the Collector dated 25.9.2007 shall not be acted upon. 7. The petitions are disposed of, accordingly. Rule is made absolute to the above extent. There shall be no orders as to costs. (Smt.Abhilasha Kumari, J.) (sunil)