ORAL ORDER

Draft amendment dated 17.5.2021 placed in the papers of the petition is granted. The same may be carried out.

2. Heard learned advocate Mr.Hemant Munshaw for the petitioner.

3. This Civil Revision Application under Section 115 of the Code of the Civil Procedure, 1908, is directed against order dated 15.2.2021 passed by the learned 5th Additional Senior Civil Judge, Gandhinagar, below Exhibit 15 in Regular Civil Suit No.205 of 2018, whereby learned Judge below dismissed the said application of the petitioner- original defendant filed under Order VII Rule 11, CPC for rejection of the plaint.

3.1 In application Exhibit 15, three grounds were broadly elaborated for rejection of the plaint. First was that the suit was barred by principle of res judicated. In support of this ground, certain proceedings in the nature of Writ Petition (PIL) No.96 of 2015 and certain decision of the Supreme Court were referred to to emphasis that in view of the principles laid down in those Public Interest Petitions before this Court and the Appellate Court, the suit was not maintainable, looking to the nature of relief prayed for therein. The second ground was that the plaintiff did not disclose the cause of action. Thirdly, it was contended that since notice under Section 487 of the Gujarat Provincial Municipal Corporations Act, 1949 was not served on the defendant No.1 -Corporation, the plaint was liable to be rejected in exercise of powers under Order VII Rule 11, CPC.

3.2 In order to appreciate the contentions about the prayer for rejection of the plaint, details of the averments in the Regular Civil Suit instituted by the plaintiff may be looked into. The suit was instituted before the Court of learned Principal Senior Civil Judge, Gandhinagar, for relief of declaration and permanent injunction. It was prayed to declare notice dated 4.9.2018 published by defendant No.2 Corporation in the newspaper to be contrary to the provisions of the Gujarat Provincial Municipal Corporations Act, 1949 and Gujarat Town Planning and Urban Development Act, 1976. The directions was prayed for against the Corporation and its officers not to demolish its construction and not to enter for occupation and use thereof. It was further prayed to direct the Corporation to comply with the General Development Control Regulations. The prayer was made to declare entire action of issuing notice in the newspaper as above and of taking action thereunder, to be bad and illegal.

3.3 It was stated that the residential property bearing Plot No.548 in the Gayatri nagar, Gandhinagar contracted by Gujarat Housing Board under the Lower Income Group Housing Scheme was allotted to one Bhartiben Pushkarray Shukla, from whom plaintiff purchased the same under sale deed dated 19.10.2002. It was the case that in the year 2002, certain alterations were made in the construction of the house. The plaintiff had constructed shops running hair salon, medical store and milk dairy parlour, it was averred. Since the residential property was put to non residential use, proceedings under Section 12 of the Gujarat Regularization of Unauthorized Development Act, 2011 for regularizing the said construction came to be initiated. It is stated that these proceedings are pending only for No Objection Certification from respondent No.3- Gujarat Housing Board.

3.4 It was further the case that despite above facts, defendant No.2 Corporation issued public notice in the local daily on 4.9.2018 by which it is instructed that all unauthorized construction and with changed user whether residential, commercial or industrial, shall be discontinued and such construction shall be removed restoring the original position. It was averred that after issuance of notice, the Corporation threatened the plaintiff asking him to remove the construction. It was stated that upon having learnt about the said notice, the plaintiff approached the competent officers and the Corporation on 29.9.2018. It was contended that since the p