Gujarat High Court
Pushpaben Kabansinh Haravat vs Collector & 2 on 17 October, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/CA/5252/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 5252 of 2013
In
SECOND APPEAL NO. 162 of 2012
With
SECOND APPEAL NO. 162 of 2012
With
SECOND APPEAL NO. 163 of 2012
With
CIVIL APPLICATION NO. 11170 of 2013
In
SECOND APPEAL NO. 162 of 2012
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PUSHPABEN KABANSINH HARAVAT....Applicant(s)
Versus
COLLECTOR & 2....Respondent(s)
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Appearance:
MR RUTUL P DESAI, ADVOCATE for the Applicant(s) No. 1
MS VRUNDA SHAH, AGP for the Respondent(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 17/10/2016
ORAL ORDER
1. Rule. Ms. Vrunda Shah, learned AGP waives service of notice of rule on behalf of respondents No. 1 and 2. and Mr. Dipak Sanchela, learned advocate waives service of notice of rule on behalf of respondent No.3.
2. Heard Mr. Prashant Desai, learned senior counsel assisted by Mr. Rutul P. Desai, learned advocate for the applicant, and Ms. Vrunda Shah, learned AGP for the respondents.
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3. Ms. Vrunda Shah, learned AGP submits that the applicant has preferred Special Civil Application No.3916 of 2016 to challenge proceedings before the S.S.R.D. and has obtained stay of the proceedings. She submits that the present application and the stay in Special Civil Application are required to be tagged together as the issue involved is the common in respect of the subject land. She further submits that the area of the private road has mentioned in map is 2914.60 sq. mtr. at page No.214 of the compilation of the Civil Application, whereas in the revised plan at page 248, the area of internal road is mentioned 2317.40 sq. mtr. She, therefore, submits that in view of this shrinkage of internal road area it was decided to take the decision of sanctioning of the plan in suo moto revision by the S.S.R.D. and the proceedings have stayed by this Court. She, therefore, urges that short time may be granted to bring these facts on record earlier on the affidavits that the shrinkage of internal road area is not mentioned.
4. Mr. Prashant Desai, learned senior counsel for the applicant strongly objects to the adjournment. He submits that none of the earlier affidavits of the respondents have mentioned a word about the internal road. They have concentrate on common plot area and the applicant Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Oct 18 02:39:13 IST 2016 C/CA/5252/2013 ORDER has filed an undertaking that a common plot area shall have coupled with making any condition. According to his further submission, the respondents are once upon harassing the applicant by raising one issue after the other, and therefore, he urges that an injunction order may be vacated subject to the outcome of the appeal. In the alternative, he submits if this Court is inclined to adjourned the matter, heavily exemplary cost may be imposed on the Officer concern as the present application is pending since 2013, and despite the order dated 17.07.2015, imposing cost of Rs.10,000/, the respondents have not mend their ways and have sought adjournment of one pretext of the other.
5. The request made by the learned AGP for differing the hearing of this application cannot be accepted. It is worthwhile to note here that while granting status quo order in Civil Application (for stay) No.9186 of 2012 on 05.09.2012, the applicants were permitted to make an appropriate application to the Collector, Bhavnagar for regularization of lands/plots in question on payment of market price as on today without prejudice to the rights and contentions in the main Second Appeal. Pursuant to this liberty the applicants moved the collector, Bhavnagar, who, by his order dated 16.04.2013, Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Oct 18 02:39:13 IST 2016 C/CA/5252/2013 ORDER has approved the layout plan sanctioned by the Town Planner, Bhavnagar on 1.03.2013 subject to certain conditions, and condition No.3 thereof stipulates that the approval is subject to the outcome of Second Appeal No.162 of 2012 which is pending in this Court. This order of the Collector, Bhavnagar is taken into suo moto revision by the S.S.R.D. Thus, the order which is taken into suo moto revision itself stipulates that the plan is approved subject to the outcome of the Second Appeal No.162 of 2012 which is pending in this Court. I am, therefore, of the view that the applicant is required to be permitted to go ahead with the construction albeit subject to the outcome of the Second Appeal, and the applicant filing an undertaking in the Second Appeal to the effect that the construction shall be made strictly in accordance with the approved layout plans by keeping common plot open and the applicants shall not claim any equity and shall demolish the construction if the State Government succeeds in the Second Appeal.
6. Accordingly, the status quo order granted by this Court vide order dated 05.09.2012 is hereby modified. The applicant is permitted to carry out construction subject to the outcome of the Second Appeal and the applicant filing an undertaking in the aforesaid term in Second Appeal. Rule is made Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Oct 18 02:39:13 IST 2016 C/CA/5252/2013 ORDER absolute accordingly.
(A.G.URAIZEE,J) Manoj Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Oct 18 02:39:13 IST 2016