1. Heard Mr. Joshi, learned Senior Counsel with Ms. Megha Jani, learned advocate for the petitioners.
2. Mr. Joshi, learned Senior Counsel for the petitioners has relied on the order dated 9.5.2012 in Civil Application (for vacating interim relief) No.5777 of 2012.
3. In the said order while considering the request for vacating interim relief the Court has observed that:-
"16.
The petitioners have therefore relied upon those judgments and contended that there exists no authority in GIDC to collect and levy the charges under head known as Infrastructure Upgradation Fund. The Court is of the prima-facie view that there appears to be no consensus as sought to be made out by learned counsel for respondent GIDC in respect of GIDC's authority to levy the charges. Had there been consensus, the same could have been spelt out unequivocally on the record but if one looks at the document pressed into service, those documents rather indicate that there was protest in respect of recurring levy of charge under the head called Infrastructure Upgradation Fund. The counsel for respondent no. 2 has rather not contended that there exists no scope in GIDC to levy the charges except on the consensus alleged. In other words, if the consensus plea is not accepted, then, under provision of law and as GIDC act as exists today, there exists no valid authority in GIDC to levy and collect the charges under the head Infrastructure Upgradation Fund. Therefore, the Court need to confine only the aspect which is sought to be pressed into service for justifying the levy and collecting charges under the head of Infrastructure Upgradation Fund on the basis of consensus. As it is stated hereinabove, close perusal of document could not persuade this court to even prima-facie hold in favour of respondent no. 2 GIDC that there exists any consensus, on the contrary, there exists serious lack of consensus so as to justify levying and collecting of the charges. It is also required to be noted at this stage that assuming for the sake of examining without holding that there exists some justification for levying and collecting the charges, then also, petitioners have legitimate right to approach this court as they are subjected to coercive steps in form of notice under PP Act, which is very summary procedure of eviction. Therefore, even if there exists some justification as pleaded by respondent no. 2 GIDC, then also, without raising notice of demand or bill, there cannot be any ground or jurisdiction for invoking the provisions of PP Act at all. The plain reading of PP Act applicable to this case, would persuade this court to prima-facie hold that the jurisdictional fact required to be existed for invoking provisions of PP Act were conspicuously absent and therefore, in my prima-facie opinion, the issuance of notice of eviction under the PP Act on the ground of non-payment of contribution under the head of Infrastructure Upgradation Fund is wholly without jurisdiction and cannot be said to be supported in any manner by any provisions of law.
17. The plain reading of Section 4 of the PP Act would clearly show that the authority gets jurisdiction to Act thereunder only in the eventualities mentioned thereunder, then, lack of submission in respect of existence of any authority except the alleged consensus would persuade this court to hold prima-facie that there exists no jurisdictional fact, which would have justified issuance of notice under PP Act. Therefore, on this count also, the interim relief granted needs not to be vacated. The balance of convenience in my view, is in favour of the petitioner as the petitioner cannot be subjected to pay any charges which is sought to be justified on account of existence of any authority and/or provisions of law. The levy of charge thus admittedly required to be supported by authority and/or provision of law. In absence of any authority or provision of law, citizen cannot be subjected to pay the same to the agency and authority of the State. Therefore, this levy, which is not supported by act, cannot be said to be permitted to be collected or else, it would amount to illegal collection, which is not available by law and therefore, this would rather amount to perpetrated illegality and therefore, ad-interim relief granted in main matter cannot be said to be vacated. It is hereby clarified that Corporation is restrained only from proceeding further under the PP Act, where, notice are based upon non-payment of charges under the head of Infrastructure Upgradation Fund but that cannot be construed in any manner or proceed against the occupants and occupants, in whose cases, they are required to be proceeded under PP Act. The original order made in main matter is eloquently clear and therefore, it is not required to be clarified in any manner. The Civil Application being bereft of merits, is required to be dismissed and is dismissed. No costs."
4. In present case the petitioners have, by way of interim relief prayed that:-
"9 (A).......
(B) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to restrain GIDC from collecting or demanding any charges towards Infrastructure Upgradation Fund from the plot holders of Vitthal Udyognagar Industrial Estate.
(C).................
(D)................"
5. However, having regard to the fact that the impugned circular is of February 2012, instead of granting ex-parte ad-interim relief office is directed to issue urgent Notice returnable on 30.7.2012. The respondents may, if so considered necessary file their reply on or before 27.7.2012. Direct service is permitted.
(K.M.THAKER,J.) Suresh* Top