Gujarat High Court
Dhirubhai vs A.U.D.A on 7 July, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCA/7863/2001 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7863 of 2001
With
CIVIL
APPLICATION No. 6558 of 2002
In
SPECIAL CIVIL APPLICATION No. 7863 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DHIRUBHAI
PANCHAL & 89 - Petitioner(s)
Versus
A.U.D.A.
& 6 - Respondent(s)
=========================================================
Appearance :
MR
VIKRAM J THAKOR for Petitioner(s) : 1 - 90.
MR RR MARSHALL for
Respondent(s) : 1,
MS MEHTA AGP for Respondent(s) : 2 - 3.
MR
UMESH A TRIVEDI for Respondent(s) : 4 - 6.
MR NIRZAR S DESAI for
Respondent(s) : 5,
MR ASIM J PANDYA for Respondent(s) :
7,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 27/06/2011
ORAL
JUDGMENT
Petitioners are Members of the Shwetanjali Co. Op. Housing Society. They have challenged an order dated 26th May, 1999 passed by respondent No.2 i.e. The Deputy Collector and the Competent Authority (ULC), Ahmedabad and development permission granted to respondent No.4, the private respondent by Ahmedabad Urban Development Authority (AUDA) to develop a portion of land forming part of Survey No.89 (Final Plot No.140), Vejalpur (herein after referred to as the suit land).
The Controversy arises in following factual background:
2.1 Petitioners claimed to have purchased a portion of Survey No.89 from the predecessors in title from respondent No.4 for development of Co.Op.
Housing Society. Subsequent to such agreement to sell and other agreements between the parties, Urban Land Ceiling (ULC) Regulations Act was enacted. Proceedings with respect to such land and other lands held by the erstwhile owner were undertaken under the ULC Act. Portion of the land was declared surplus and consequential steps under Section 10 were also undertaken. It, however, appears that by the time ULC Act was repealed with effect from 30th March, 1999, possession of excess land was not taken over by the Government. Respondent No.4, therefore, approached the Collector for necessary Certificate and declaration that the suit land did not form part of the land which has vested in the Government and possession of which was taken over under the ULC Act. By impugned order dated 26th May, 1999, such declaration was granted by respondent No.2. Resultantly, suit land was not declared to be a Government land having been acquired under the ULC. Armed with such a declaration, respondent No.4 approached the AUDA and sought permission to develop the land. By impugned decision dated 20th August, 2001, AUDA granted such permission by approving plans for development. At that stage, petitioners have approached this Court challenging the declaration issued by respondent No.2 and development permission granted by AUDA with respect to the suit land.
Having heard learned advocates for the parties, I find that in so far as the impugned order passed by respondent No.2 dated 26th May, 1999 is concerned, the same cannot be stated to be adverse to the petitioners. The order only declares that certain portion of land out of Survey No.89 would not be hit by provisions of ULC Act, since despite proceedings under Section 10 of the Act having been undertaken, possession thereof has not been taken over by the Government before the repeal of the Act with effect from 31st March, 1999. Insofar as, the petitioners are concerned, this order is innocuous. Order does not specify anything further than granting the declaration to respondent No.4. It does not enter into the controversy with respect to ownership of the land, does not take note of any of the transactions between the parties and is completely silent about the rights of the petitioners or respondent No.4. In that view of the matter, I do not see how and for what purpose, petitioners can be permitted to challenge the order.
Counsel for the petitioners, however, vehemently contended that they are owners and in possession of the suit lands which forms part of the common plot of the society. Respondent No.4, therefore, cannot get any permission to develop the land. AUDA thus committed an error in granting such a permission. I am also informed that respondent No.4 has also filed a Civil Suit claiming right, title and interest over the suit land. Such suit is pending. From the record, it also emerges that by virtue of interim protection granted to the petitioners in this petition, development permission granted by AUDA could not be put to effect. Resultantly, land has not yet been developed. In any case, by virtue of such interim protection, no development has admittedly taken place on the suit land. However, counsel for the respondent No.4 submitted that only portion of Survey No.89 was sold to the society and rest is retained by the original land owners. The petitioners have, therefore, no right title and interest over the suit land which respondent No.4 desires to develop.
I find that when the petitioners have serious dispute about the ownership and possession of the land with respect to permission granted to respondent No.4 to develop the land, petitioners have the right to challenge such development permission granted by AUDA.
Considering the totality of facts and circumstances of the case, I am of the opinion that the petitioners may be given an opportunity to present their case before AUDA while the AUDA should be requested to decide question of granting development permission to respondent No.4 or his predecessors in title.
Under the circumstances, petition is disposed of in following terms:
(i) Insofar as challenge to order dated 26th May, 1999 is at Annexure-E passed by Collector is concerned, the same is turned down.
(ii) With respect to grievance regarding development permission granted by AUDA in favour of respondent No.2, the order is quashed.
(iii) It would be open for the respondent No.4 or his successor in title to apply to AUDA afresh seeking development permission with respect to suit land. If it is so done, petitioners would have an opportunity to present their objections to any such development permission sought from AUDA, for which purpose, AUDA will intimate to the petitioners if any application for development of the land in question is received before taking a final decision.
(iv) AUDA shall take final decision in accordance with law and in terms of any order passed by competent Court, if at all.
(v) I have not expressed any opinion on the rival contentions regarding possession and title of the suit land.
With above directions, petition is disposed of. Rule made absolute to the aforesaid extent.
Order in Civil Application.
In view of the disposal of the main special civil application, civil application has become infructuous and therefore, disposed of accordingly.
(AKIL KURESHI, J.) (ashish) Top