Gujarat High Court
Chanchalben Chaturbhai Patel & 4 vs State Of Gujarat Through Secretary & 4 on 29 June, 2016
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/3456/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3456 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
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1 Whether Reporters of Local Papers may be allowedNO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy ofNO
the judgment ?
4 Whether this case involves a substantial question ofNO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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CHANCHALBEN CHATURBHAI PATEL & 4....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 41....Respondent(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Petitioner(s) No. 1 - 5.4
DELETED for the Respondent(s) No. 22 , 30 , 32 , 37 - 39 , 41
MR TEJAS K MOTWANI, AGP, for the Respondent(s) No. 1
MR PARTHIV B SHAH, ADVOCATE for the Respondent(s) No. 3 - 9 , 11 - 12 ,
16 , 18 - 21 , 23 - 25 , 27 - 29 , 31 , 33 - 36 , 40 , 42
NOTICE SERVED BY DS for the Respondent(s) No. 3 - 4 , 6 - 8 , 11 - 12 , 18 -
19 , 21 , 23 - 25 , 27 - 29 , 31 , 33 - 35 , 42
RULE SERVED for the Respondent(s) No. 2 , 10 , 13 - 15 , 17
SERVED BY AFFIX.-(R) for the Respondent(s) No. 26
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
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C/SCA/3456/2011 JUDGMENT
Date : 29/06/2016
ORAL JUDGMENT
1. Present petition has been preferred by the petitioners praying for quashing and setting aside the impugned stop-work order dated 08.03.1995 issued by the Collector.
2. Petitioners herein are owners of the land bearing survey No.617 of village Gotri, Taluka & District Vadodara. They are concerned with development of 555 sq. mtrs. of land on which they wanted to raise construction and have been restrained by the Collector vide order dated 08.03.1995.
3. Predecessor of the petitioners was granted permission for development of land by the Deputy Town Planning Officer, Vadodara Municipal Corporation on 04.02.1992. On 08.06.1992, non-agricultural use permission for the said land was accorded under section 65 of the Bombay Land Revenue Code, 1879. In the year 1993, petitioners' predecessor Chaturbhai S.Patel applied for revised development permission. Such development permission was granted on 20.04.1993. When the petitioners started raising construction, respondent No.2 herein - Collector issued a stop-work order on 08.03.1995. As the Collector was allegedly not empowered to issue such orders, the petitioners have preferred this petition.
4. Learned counsel for the petitioners has submitted that, Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Jul 02 02:07:03 IST 2016 C/SCA/3456/2011 JUDGMENT after grant of original permission in the year 1992, the petitioners have applied for revised plan which has been granted by Deputy Town Development Officer, Vadodara Municipal Corporation vide his order dated 10.3.1994. It has been submitted that once such permission has been granted by the Municipal Corporation, the Collector was not within his jurisdiction to have restrained the petitioners from raising constructions. It has been submitted that passing of such order restraining the petitioners from raising of construction was against the principles of natural justice as the order was passed without any notice to the petitioners or the petitioners having not been heard in that regard. Learned counsel further submitted that there was no violation of any condition imposed while granting non-agricultural permission. Finally it has been prayed that the impugned order of the Collector was liable to be quashed and set aside.
5. The above arguments have been controverted by learned counsels representing plot holders as well as by the State. It has been submitted that the petitioners applied for revised development permission by suppressing the fact that there were conditions which were imposed at the time of granting non-agricultural use permission. The revised development permission accorded to the petitioners' father was in the year 1993 which has neither been varied nor altered. As per this permission, the petitioners were not permitted to develop or use the plot kept for common purposes. It Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Jul 02 02:07:03 IST 2016 C/SCA/3456/2011 JUDGMENT has been submitted that if there was any violation of the aforesaid condition, the violator was liable for punishment under the Bombay Land Revenue Code. It has been submitted that the Collector has passed the order under the Bombay Land Revenue Code and passing of such order was within his jurisdiction.
6. I have considered the submissions of both sides. Site Plan/lay out plan of the plot in question is available at page 154. On the northern side of the site plan, there is a common plot admeasuring 555 sq. mtrs. On the southern side of the common plot, there is an 18 mtr.wide road and below that there are residential houses of the respondents. I have gone through some of the sale deeds which have been placed on record. Perusal of the same shows that there is mention regarding common plot in all these sale deeds. There is also mention regarding common plot left for the common purpose of the residents. Further there is mention about this plot in the non-agricultural use permission granted by the Collector vide his order dated 08.06.1992. Through their action, the petitioners are trying to use the common plot by raising constructions and using the same for commercial and residential activities. This Court is of the considered opinion that such activity cannot be permitted. Perusal of the conditions imposed by the Collector at the time of grant of non- agriculture permission leaves no doubt that allowing further construction on the plot kept for common purpose will amount to violation of the conditions imposed by the Collector in the aforesaid Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Jul 02 02:07:03 IST 2016 C/SCA/3456/2011 JUDGMENT non-agricultural permission. Once there is violation of the conditions imposed in the non-agricultural permission, the Collector is within his powers to intervene with such activity under the powers available to him under the Bombay Land Revenue Code. Accordingly, the action of the Collector of restraining the petitioners from raising constructions is well within his powers.
7. In view of the foregoing discussion, the present petition fails, same is dismissed. Rule is discharged.
Sd/-
(MOHINDER PAL, J.) KMGThilake) Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Jul 02 02:07:03 IST 2016