Shardaben Valjibhai Lathiya & 129 vs State Of Gujarat & 3 on 5 June, 2014

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Gujarat High Court

Shardaben Valjibhai Lathiya & 129 vs State Of Gujarat & 3 on 5 June, 2014

Bench: G.R.Udhwani

        C/SCA/7563/2014                              ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           SPECIAL CIVIL APPLICATION NO. 7563 of 2014



================================================================
        SHARDABEN VALJIBHAI LATHIYA & 129....Petitioner(s)
                           Versus
            STATE OF GUJARAT & 3....Respondent(s)
================================================================
Appearance:
MR P.C.KAVINA SR. ADVOCATE for MR KK TRIVEDI, ADVOCATE for the
Petitioners No. 1 - 130
MR VISHAL PATEL AGP for the Respondent No. 1
MR MAULIK G.NANAVATI for the Respondent No.4
NOTICE SERVED BY DS for the Respondent No. 2 - 4
================================================================

       CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

                          Date : 05/06/2014


                           ORAL ORDER

1. The petitioners have sought a writ of mandamus to direct the respondents to exercise the powers under Section 70/71 of the Gujarat Town Planning & Urban Development Act, 1976 (for short "the Act").

2. The main grievance is that the town planner did not take into account Section 45 of the Act while reserving the common open plot of the Survya Kiran Society and under such circumstances the final scheme was sanctioned. The argument is that while sanctioning the plans for construction of the aforementioned society, one of the conditions required the society to Page 1 of 3 C/SCA/7563/2014 ORDER keep the plot in question open to sky. The argument is that the society having complied with the said condition, equally it is the duty of the town planner to comply with the similar condition in terms of Section 45 of the Act and thus the common open plot could not have been reserved for commercial sale, as indicated in the final scheme.

3. In pursuance to the notice, respondent no.4 has appeared and various contentions are raised including the contention that the final scheme having been sanctioned is now a part of the Act and that the rights of the society and its members in the common open plot have been terminated by operation of the statute and that at no point of time before sanctioning of the final scheme, any objection against the reservation of the common open plot in question for commercial sale was ever raised. It was also argued that the restrictions against construction on the common open plot applied to the users of the land of the society, but so far as the proceedings under T.P. Act are concerned, such restrictions were not applicable. It was argued that common open plot can be acquired under the Act and by virtue of Section 107 of the Act, such acquisition would be for public purpose.

4. In light of the aforesaid submissions, as also the other submissions, as may be canvassed, the questions raised in the petition are required to be considered for the purpose of admission and interim relief. Therefore, adinterimrelief in terms of Para Page 2 of 3 C/SCA/7563/2014 ORDER 9(D) is granted on the condition that the petitioners would also maintain status quo with regard to the possession, construction and ownership of the property in question. For admission and arguments on interim relief, the matter is posted on 18.06.2014.

(G.R.UDHWANI, J.) Pankaj Page 3 of 3

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