Gujarat High Court
Kanubhai Ishvarbhai Patel vs Dy. Estate Officer - New West Zone & 3 on 29 April, 2016
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/377/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 377 of 2016
In
SPECIAL CIVIL APPLICATION NO. 11647 of 2014
With
CIVIL APPLICATION NO. 3990 of 2016
In
LETTERS PATENT APPEAL NO. 377 of 2016
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KANUBHAI ISHVARBHAI PATEL....Appellant(s)
Versus
DY. ESTATE OFFICER - NEW WEST ZONE & 3....Respondent(s)
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Appearance:
MR UDAY R BHATT, ADVOCATE for the Appellant(s) No. 1
MR KAUSHAL D PANDYA, CAVEATOR for the Respondent(s) No. 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/04/2016
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This Letters Patent Appeal is filed by respondent no.4 in Special Civil Application No.11647 of 2014, aggrieved by the order of the learned Single Judge dated 31.03.2016.
2. In the Special Civil Application respondent no.4 herein had Page 1 of 4 HC-NIC Page 1 of 4 Created On Wed May 04 03:01:57 IST 2016 C/LPA/377/2016 ORDER challenged order dated 08.10.2013 passed by the Dy. Estate Officer, New West Zone, Ahmedabad Municipal Corporation, in Application No.GRUDA/ AMC/ NWZ/ 0382; and order dated 31.07.2014 passed by the Appellate Authority in Appeal No.12 of 2013, under the provisions of the Gujarat Regularization of Unauthorized Development Act, 2011 ('the Act of 2011' for brevity) Respondent no.4 herein appears to have made certain construction on the common plot of the housing society and approached the Competent Authority under the provisions of the Act of 2011. The Competent Authority has rejected the application made by respondent no.4 herein, as against which respondent no.4 herein had approached the Appellate Authority under the Act of 2011. The Appellate Authority had also rejected the appeal. Respondent no.4 herein had approached this Court by filing Special Civil Application No.11647 of 2014. One of the contentions raised by respondent no.4 herein before the learned Single Judge appears to be that though he has submitted resolution of the housing society, the same was not looked into, as it has not reached the Competent Authority before consideration of his application, which has resulted into passing of order dated 08.10.2013, and the same was also not considered by the Appellate Authority. While setting aside the order dated 08.10.2013 passed by the Competent Authority and order dated 31.07.2014 passed by the Appellate Authority, the learned Single Judge directed the Dy. Estate Officer, New West Zone, Ahmedabad Municipal Corporation to decide the Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed May 04 03:01:57 IST 2016 C/LPA/377/2016 ORDER application of respondent no.4 herein afresh, after giving opportunity of hearing to all concerned including the objector (the appellant herein) strictly in accordance with law.
3. In this appeal it is contended by the learned counsel for the appellant that respondent no.4 herein has made construction in common plot of the housing society, such constructions are not to be regularized at all in view of the judgment of this Court in the case of Sarvesh Atulbhai Gohil Vs. Jamnagar Urban Development Authority and others, reported in 2014 (2) GLH
26. It is represented that in such event the order could not have been set aside by the learned Single Judge. On the other hand it is submitted by the learned counsel for respondent no.4 that pursuant to orders passed by this Court the competent authority has considered the application of respondent no.4 herein and the objections of objector (appellant herein) also yesterday, the 28th April 2016 and orders are yet to be passed. It is further submitted that the appellant is also a beneficiary of resolution passed by the housing society and he got regularized the construction made by him, as such he cannot object the application of respondent no.4 herein.
4. In view of the specific case of respondent no.4 herein that resolution of the housing society was not considered by the competent authority, the orders were set aside and the matter was Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed May 04 03:01:57 IST 2016 C/LPA/377/2016 ORDER remanded to the competent authority for fresh consideration, whether the constructions in common plot are permissible, is the matter which is required to be considered by the authority concerned under the provisions of the Act of 2011. As the appellant (objector) is also given opportunity to file his objections, whether the appellant herein is a beneficiary of the resolution or not can be looked into by the competent authority when the matter is heard in compliance of the directions issued by this Court. We are of the view that no ground is made out for interference by this Court. However, it is made clear that it is open for the competent authority to consider the objections raised by the appellant herein.
5. With the above observations the Letters Patent Appeal is dismissed. No order as to cost.
6. Consequently, no orders on Civil Application. The same stands disposed of accordingly.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) karim Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed May 04 03:01:57 IST 2016