Gujarat High Court
Kaniayalal (Kantibhai )Nathubhai Shah vs Collector on 6 October, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11550/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11550 of 2015
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KANIAYALAL (KANTIBHAI )NATHUBHAI SHAH....Petitioner(s)
Versus
COLLECTOR, SURAT & 3....Respondent(s)
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Appearance:
MR TULSHI R SAVANI, ADVOCATE for the Petitioner(s) No. 1
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 - 4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 06/10/2015
ORAL ORDER
1. Heard Mrs.Ketty Mehta, with Mr.Tulshi R. Savani, learned counsel for the petitioner, Mr.Rohan Yagnik, learned Assistant Government Pleader for respondent No.1 and Mr.H.S.Munshaw, learned counsel for respondent Nos.2 to 4.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged internal correspondence and the direction given by District Collector, Surat in the programme known as "District Complaint Redressal Programme" under question No.63/2013, which is dated 15.06.2015.
3. It appears from the record of the petition that thereafter, no notice is given by the authority of Surat Urban Development Authority. It is not the case of respondent Nos.2 to 4, who were directed by the Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed Oct 07 02:29:05 IST 2015 C/SCA/11550/2015 ORDER District Collector to take action and report within 15 days, that notice is given to the petitioner. Mr.Munshaw, learned counsel for respondent Nos.2 to 4 has not been able to point out whether any action is taken or not. However, Mrs.Mehta, learned counsel for the petitioner asserts that after the order was passed by the Division Bench of this Court in Letters Patent Appeal No.1246 of 2013 dated 03.03.2015, the petitioner filed a representation dated 17.03.2015, which came to be rejected and therefore, the petitioner has preferred an appeal as provided under Section 12 of the Gujarat Regularization of Unauthorized Development Act, 2011 ("GRUDA" for short), which is pending before the Appellate Authority. It also appears from the record of the petition that the petitioner in response to the communication impugned in this petition, has already approached the authority of Surat Urban Development Authority by communications dated 17.06.2015 and 06.07.2015.
4. Mr.Rohan Yagnik, learned Assistant Government Pleader for respondent No.1Collector, Surat, has rightly pointed out that the impugned communication as an internal correspondence between two authorities, which is challenged by way of this petition.
5. At this juncture, it would be appropriate to note that the petitioner had earlier filed an application under GRUDA, which came to be rejected and even the appeal against that order was rejected. Record further Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Oct 07 02:29:05 IST 2015 C/SCA/11550/2015 ORDER indicates that against said order, the petitioner preferred Special Civil Application No.15744 of 2013, which came to be dismissed by this Court (Coram :
Hon'ble Mr.Justice Anant S.Dave) vide order dated 14.10.2013, wherein it is observed thus: "2. This petition under Article 226 and 227 of the Constitution of India is a classic case of blatant illegality committed by the developer contrary to the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to in short as 'the Act').
The petitioner invokes jurisdiction of this Court on the ground that the respondent authority has passed a nonspeaking order impugned in this petition and opportunity is not given for the document on which reliance is placed. Further, exercise of powers by the authority namely the competent as well as the appellate under Gujarat Regularisation of Unauthorised Development Act, 2011 (GRUDA, 2011) is mechanical and it is a result of nonapplication of mind on the grounds raised in the Appeal preferred before the appellate authority under GRUDA 2011.
2. It is not in dispute that the petitioner was never granted any development permission in respect of the subject land for carrying out the construction of the commercial building on Plot Nos.34 to 45 on Block No.7 of Village Laskana, Tal. Kamrej, District Surat in the years 2008 to 2009. In the above circumstances, the competent authority under the Town Planning and Urban Development Act issued a Notice on 29.12.2010 to discontinue the commercial construction, but inspite of the above fact the petitioner continued to do so and almost completed the construction.
3. In the above backdrop of factual scenario, if the scheme of GRUDA 2011 is perused, a completely illegal construction contrary to development permission can never be subject matter of regularisation and when the petitioner has abused the process of law and committed illegality as noticed by the competent authority and the appellate authority under GUDA. In addition to the above, an Undertaking was given to remove the unauthorised construction. Further, records from the writ petition if perused including the N.A. Permission, layout plan sanctioned, permission granted for development under the Act, and the Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Oct 07 02:29:05 IST 2015 C/SCA/11550/2015 ORDER orders passed by the authorities, there is no dispute about the illegality committed by the petitioner to warrant any interference by this Court under Articles 226 and 227 of the Constitution of India.
Besides, the competent as well as the appellate authority have assigned cogent reasons for not accepting the case of the petitioner about time and period of nature of construction for invoking provisions of GRUDA 2011 on the basis of documents that it was not established that construction was prior to 28.03.2011.
That concurrent findings of facts by both the authorities are based on appreciated records for which reasons are assigned.
4. In the aforesaid circumstances, the petition is devoid of merits and the petition is rejected with a cost of Rs.25,000/= (Rupees Twenty Five Thousand Only) to be paid by the petitioner, within a period of one week from the date of receipt of writ of this Court, before the Gujarat State Legal Services Authority."
6. The said order was challenged by way of intra court appeal being Letters Patent Appeal No.1246 of 2013 & allied matter, wherein the Division Bench of this Court (Comprising Hon'ble Mr.Justice K.S.Jhaveri and Hon'ble Mr.Justice A.G.Uraizee) passed the following order on 03.03.2015 : "1.This Letters Patent Appeal is filed against the judgment and order dated 14.10.2013 passed by the learned single Judge in the captioned writ petition whereby, the petition was dismissed with cost.
2.Having heard learned counsel for both the sides and without entering into the merits of the impugned judgment passed by the learned single Judge, in the interest of justice, it would be expedient that the appellantoriginal petitioner applies before the respondentCorporation for regularization of construction as also for change of use. The appellant shall appear before the Chief Executive Officer of the respondent Corporation during Office hours on or before 18 th Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Oct 07 02:29:05 IST 2015 C/SCA/11550/2015 ORDER March 2015 by way of a detailed representation raising all grounds available to him.
3.On such representation being made, the authority shall consider it as also the objections that are filed by the affected parties or are pending before the authority regarding the subject matter and shall, thereafter, pass a reasoned order in accordance with law. Such order shall be passed within a period of six weeks from the date of receipt of representation from the appellant. If the ultimate order that shall be passed by the authority is adverse to the appellant, liberty is granted to the appellant to challenge the same, by way of appropriate proceedings. Since this Court has relegated the appellant to the respondentCorporation, the order passed by the appellate authority will not come in the way of the appellant and the authority shall decide the representation, being uninfluenced by the observations made by the learned single Judge as also by this Court in this order. Until the representation is decided, both the sides shall maintained status quo.
4. In view of the above directions, Mrs. Mehta learned counsel for the appellant seeks permission to withdraw the writ petition. Hence, the appeal as well as civil applications stand disposed of."
From the above, it is clear that except intimation/direction given by District Collector, Surat vide communication dated 15.06.2015, no actions are taken.
7. In light of the aforesaid, the petition is premature. Considering the fact that the appeal under Section 12 of the Act is already pending, no further relief is required to be granted in this petition. Till the said issue is pending, the authorities cannot take any action for demolition even though this Court had categorically held that the petitioner does not possess development permission for development carried Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Oct 07 02:29:05 IST 2015 C/SCA/11550/2015 ORDER out. As the appeal under Section 12 of the Act is pending at large before the Appellate Authority, the Appellate Authority is hereby directed to hear the petitioner and decide the main appeal, as expeditiously as possible, but not later than 31st October, 2015. It is further clarified that this Court has not expressed any opinion on merits of the appeal, which is pending and even at the cost of repetition, it is observed that the petition being premature, is not entertained. As this Court has specifically directed the Appellate Authority to decide and dispose of the appeal filed by the petitioner on merits, the parties to the appeal shall cooperate with the Appellate Authority in the hearing.
With these observations and directions, the petition stands disposed of. Notice is discharged. Interim relief, granted earlier, stands vacated. No costs.
(R.M.CHHAYA, J.) Suchit Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Oct 07 02:29:05 IST 2015