Gujarat High Court
Ali Ahmed Beharchi Manihar vs State Of Gujarat & 2 on 20 October, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/16899/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16899 of 2015
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ALI AHMED BEHARCHI MANIHAR....Petitioner(s)
Versus
STATE OF GUJARAT & 21....Respondent(s)
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Appearance:
MR NA SHAIKH, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR. NIRAJ ASHAR, A.G.P. for Respondent No.1.
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 20/10/2015
ORAL ORDER
1. Following are the prayers made by the petitioner in the present petition filed under Article 226 of the Constitution of India:
"12. The petitioners therefore, humbly pray; A) Your Lordships will be pleased to admit and allow present SCA B) Your Lordships will be further pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ/s, order/s, or direction/s or declaration/s quashing and setting aside the revised plan of construction of Residential premises on the common open plot on the eastern side of the plot no.3 of the petitioner sanctioned by the Competent authority on dtd.
7.3.1994, dated 29.6.1994 and dated 25.3.2011 in the interest of justice.
Page 1 of 5HC-NIC Page 1 of 5 Created On Wed Oct 21 02:55:41 IST 2015 C/SCA/16899/2015 ORDER C) Your Lordships will be further pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ/s, order/s, or direction/s or declaration/s to the respondent no.4 and 5 or any other competent authority to remove the illegal and unauthorized construction made by respondent no.7 and 8 in open common plot admeasuring area 2840.00 sq. ft. equal to 293.84 sq. mtrs. in survey no.48 paiki of village Kapodara, Tal. Ankleshwar, District Bharuch in the interest of justice.
D) Your Lordships will be further pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ/s, order/s, or direction/s or declaration/s to the respondent no.4 and 5 or any other competent authority to remove the illegal and unauthorized construction made by respondent no.7 and 8 in plot no. 83 to 91 admeasuring area 6750 sq. ft. equal to 627.09 sq. mtrs. in survey no.48 paiki of village Kapodara, Tal. Ankleshwar, District. Bharuch in the interest of justice.
E) Your Lordships will be further pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ/s, order/s, or direction/s or declaration/s to the respondent no.4 and 5 or any other competent authority to take appropriate steps against the persons who have used bogus non agricultural permission order dated 25.3.2011 of the respondent no.5 has true and correct have directed by the order dated 22.4.2014 Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Oct 21 02:55:41 IST 2015 C/SCA/16899/2015 ORDER immediately in the interest of justice.
F) Pending admission, hearing and disposal of the present petition, Your Lordships may be pleased to restrain respondent no.7 and 8 from further construction over the open common plot in the disputed land and further transferring the flats to the third parties by way of sale or lese or by any other manner in the interest of justice.
G) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
2. It appears that the grievance voiced by the petitioner is as regards illegal construction on the common plot. Learned Advocate Mr. Shaikh for the petitioner submitted that according to the revised plan, common plot is to be made available for plot holders and no construction is permissible on common plot. Mr. Shaikh submitted that though there is no cooperative society, however, the plot holders are entitled to enjoy the common plot as per the revised plan.
3. On the other hand, learned A.G.P. Mr. Ashar appearing for respondent No.1 on advance copy submitted that whether the common plot is constructed upon or not is disputed question of fact and the petitioner may not be permitted to invoke the writ jurisdiction of this Court to decide such disputed question of fact.
4. Having heard the learned advocates for the parties, it appears Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Oct 21 02:55:41 IST 2015 C/SCA/16899/2015 ORDER that the petitioner has taken out revisional proceedings before the Secretary voicing grievance about the illegal construction being made by some of the plot holders on their plots as also on the common plot.
The Secretary has decided the revision application of the petitioner by order dated 23.4.2015 and in such order, the Secretary has observed that the Collector has not accepted that there is construction on the common plot. However, as regards private plots, as the allegation of making unauthorized construction is there, the Secretary has directed to take appropriate action in accordance with law.
5. It is required to note that the petitioner is not challenging the orders made by the Collector and the Secretary but has made the above said prayers on the allegation that there is unauthorized construction on the common plot. It is also required to note that the petitioner had filed Regular Civil Suit No.23 of 2012 for declaration and permanent injunction in connection with the common plot.
However, as stated by Mr. Shaikh, such suit was withdrawn by the petitioner. Having withdrawn such suit and also having invited the orders from the Collector and the Secretary wherein it is clearly observed that there is no construction on the common plot, the petitioner wants this Court to record finding that there is unauthorized construction on the common plot and then to pass the directions as sought for in the petition.
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6. In view of the facts stated above as regards filing of the suit by the petitioner making grievance about unauthorized construction on the alleged common plot and withdrawal thereof by the petitioner and also having regard to the finding recorded by the Secretary that the Collector has not accepted plea of the petitioner that there was construction on the common plot, the petitioner cannot be permitted to invoke writ jurisdiction of this Court so as to decide whether there is common plot in existence or whether there is unauthorized construction made on the common plot. Permitting the petitioner to invoke the writ jurisdiction of this court under Article 226 of the Constitution of India would amount to decide the questions of fact which is not permissible. The petition is, therefore, bereft of any merits. Hence the petition is rejected.
(C.L.SONI, J.) anvyas Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Oct 21 02:55:41 IST 2015