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Gujarat High Court

Kashyap Jagdishchandra Master vs State Of Gujarat on 16 February, 2022

Author: A.J.Desai

Bench: A.J.Desai

       C/LPA/1151/2021                                  ORDER DATED: 16/02/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1151 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 13533 of 2021
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
               In R/LETTERS PATENT APPEAL NO. 1151 of 2021

==========================================================
                         KASHYAP JAGDISHCHANDRA MASTER
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MR VIMAL A PUROHIT(5049) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4
MR BHARGAV PANDYA, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
==========================================================
     CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
           and
           HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                 Date : 16/02/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. ADMIT. Mr.Bhargav Pandya, learned Assistant Government Pleader waives service of notice of admission on behalf of the respondent- State.

2. By way of the present appeal under Clause 15 of the Letters Patent, the appellant - original petitioner has challenged an order dated 18/11/2021 passed by learned Single Judge in captioned writ petition, by which, learned Single Judge has not entertained the petition on the ground of delay in preferring an appeal under section 54 of the Gujarat Town Planning and Urban Development Act,1976 (hereinafter referred to as "the Act").

3. Short facts, arise from the record, are as under:

C/LPA/1151/2021 ORDER DATED: 16/02/2022 That the ancestral of appellant - petitioner was an owner of the land bearing Old survey no.342/A, New survey no. 342/A (2), 342/B located at Mouje: Saijpur Bogha, Ahmedabad city East, District:

Ahmedabad. The aforesaid land was covered under Town Planning Scheme No.48 and the case was initiated being Case No.16/59.

It is the case of the appellant that Notice under Rule 26(ix) of Gujarat Town Planning and Urban Development Act Rules,1979 (hereinafter referred to as "the said Rules") was issued to the land owners, which were covered under the same scheme asking the owners not to develop the property covered under the said scheme.

Notice dated 22/04/2013 was issued to several persons including Jagdishchandra Master, who happened to be father of the present appellant.

It is also the case of the appellant that his father had expired on 21/07/2010 and therefore, service of said notice itself is void and therefore, the appeal against the said decision, under section 54 of the Act before the concerned Civil Court, was filed immediately within a period of 30 days, as provided, after receiving an order dated 11/02/2014 passed by the Board constituted under the said Act.

The said decision was challenged before the appellate authority being Town Planning Appeal No.38 of 2018 (old no. of 2014). The appellate authority dismissed the said appeal vide order dated 22/07/2020, which came to be challenged before learned Single Judge by way of filing writ petition. Learned Single Judge also dismissed the said writ petition vide order dated 18/11/2021 on the ground of delay in preferring the appeal. Hence, this appeal.

4. Mr.Vimal Purohit, learned advocate appearing for the appellant - original petitioner would submit that it is an undisputed fact that Notice under Rule 26(ix) of the said Rules, was issued on 22/04/2013 in the name of Jagdishchandra Master, who happened to be father of the Page 2 of 4 Downloaded on : Wed Feb 16 21:55:51 IST 2022 C/LPA/1151/2021 ORDER DATED: 16/02/2022 appellant and had expired way back on 21/07/2010 and therefore, Notice itself is void ab-initio and therefore, the Appellate authority should have not to reject the appeal on the ground that there is a delay in filing the appeal. He would submit that as and when the appellant came to know about the impugned Notice, he raised an objection on 07/12/2013 before the authority and brought to the notice about the said aspect. However, by order dated 11/02/2014, the board established under section 55 of the Act, has rejected the objections raised by the appellant. Hence, the said decision was challenged on 11/03/2014 i.e. on the 30th day of the said order, before the concerned Civil Court by way of filing an appeal. Civil Court dismissed the said appeal on the ground of delay in preferring the appeal. The said decision was challenged before this Court by way of filing a writ petition, which also came to be rejected by the learned Single Judge. He would submit that in such circumstances, learned Single Judge ought to have entertained the petition and remanded the matter for fresh consideration.

5. We have also heard learned Assistant Government Pleader Mr.Bhargav Pandya appearing for respondent No.1.

6. It is an undisputed fact that Notice was issued under Rule 26(ix) of the Rules, on 22/04/2013 to several persons including father of the appellant, who had expired way back on 21/07/2020. However, if we perused the objection raised by the appellant on 07/12/2013, he himself has stated that he came to know about the Notice dated 22/04/2013 on 30/07/2013. Instead of filing an appeal within a prescribed period of 30 days, he raised an objection, which was rejected by the authority. The appellant had knowledge about the Notice at least on 30/07/2013 and therefore, he should have file an appeal on or before 30/08/2013.

C/LPA/1151/2021 ORDER DATED: 16/02/2022

7. We have also gone through the provisions of Section 54 of the Act, aggrieved person is suppose to file an appeal within a period of 30 days. However, there is no provision to entertain an appeal, if the same is filed beyond the period of 30 days. Hence, the appellate authority as well as learned Single Judge has committed no error in dismissing the appeal as well as writ petition on the ground that the appeal has been filed beyond the prescribed period of limitation. It is also pertinent to note that the entire scheme has been sanctioned during the pendency of the proceedings. Hence, there is no substance in this appeal and the same deserves to be dismissed and is accordingly dismissed.

8. In view of dismissal of the Letters Patent Appeal, no order in the civil application and the same is also dismissed.

(A.J.DESAI, J) (ANIRUDDHA P. MAYEE, J.) DIPTI PATEL Page 4 of 4 Downloaded on : Wed Feb 16 21:55:51 IST 2022