Gujarat High Court
Harshadbhai vs Gulam on 16 December, 2010
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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SCA/14247/2010 1 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14247 of 2010
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HARSHADBHAI
BALLUBHAI RANA - Petitioner(s)
Versus
GULAM
MOHAMMAD ALI PATEL & 5 - Respondent(s)
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Appearance
:
MR
MEHUL RATHOD WITH MR MANAN MAHETA for Petitioner(s) : 1,
MR TUSHAR
MEHTA, SR. ADVOCATE WITH MS SHAILI A KAPADIA for Respondent(s) : 1 -
3.
None
for Respondent(s) : 4 - 6.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 27/10/2010
ORAL ORDER
The petition is directed against the order dated 14.10.2010 passed by the learned first appellate Court whereby the learned first appellate Court has set aside the order dated 18.08.2010 passed by the learned trial Court below Exh.5 in Regular Civil Suit No.22 of 2010.
The dispute pertains to construction of a building which, allegedly, would cause disturbances, nuisance to the petitioner and restriction against enjoyment of his existing property. On the allegation that the construction is being undertaken contrary to the provisions under Section 104 of the Panchayat Act and also contrary to the approved plans, the plaintiff filed R.C.S.No.22 of 2010 wherein the learned trial Court by order dated 18.08.2010 restrained the defendant from carrying on further construction work and also restrained the defendants from selling, transferring, alienating the property in question in favour of the third party/prospective purchasers of the property. Aggrieved by the said order, the original defendants carried the matter in appeal where the learned first appellate Court has, by the impugned order, vacated the said order dated 18.08.2008 and passed the modified order.
In view of the contention raised by the petitioner with regard to breach of the provisions of Section 104 of the Panchayat Act and applicability of the Building Rules to the construction of property and in light of the defence raised by the respondents on the ground that the Building Rules are not applicable for construction in Gamtal land, the matter requires consideration. Hence, Office is directed to issue notice to the respondents, returnable on 18th November, 2010. Ms. Kapadia, learned advocate, has waived service of notice qua respondent Nos.1, 2 and 3 since he has entered appearance for the caveators i.e. the respondent Nos.1, 2 and 3.
In view of the observations/directions made by the learned first appellate Court in para 13 of the impugned order, it is directed that the Officer from the office of City Survey Superintendent shall visit the suit premises and shall take measurement of the exact distance between the property being constructed and the existing property of the petitioner-plaintiff and having regard to the plans approved by the Panchayat for the building under construction prepare and submit report stating inter alia as to whether the construction is as per the plan and rules or not and how much distance is kept/maintained by the defendants while constructing the disputed building. He would also include in his report his remarks, as to whether the construction is in conformity with the approved plan or not. It would be open to the respondents to raise contentions and objections against the report, including the contention that the regulations on which the plaintiff seeks to rely, are not applicable to the construction in Gamtal area. At the request of the respondent, it is clarified that the report to be submitted by the Officer would be in respect of that part of petitioner's property which has common side with the building under construction and in respect of which the grievance is made in the suit and description are made in para 13 of the order. The Officer from the office of City Survey Superintendent shall complete the exercise and make the report available on or before 15th November, 2010. The report will be placed on record through learned AGP.
It is clarified that the concerned Officer from the Office of the City Survey Superintendent will undertake the aforesaid exercise independently and without any interference or assistance from either the plaintiff or the defendant.
Mr. Mehta, learned Senior Advocate, for Ms. Kapadia, learned advocate for the respondent Nos.1, 2 and 3 has assured that until the report becomes available and is considered by this Court, further construction will not be carried on.
[K.M.Thaker, J.] kdc Top