Gujarat High Court
Patel vs State on 20 February, 2006
Author: M.S.Shah
Bench: M.S.Shah
LPA/1624/2005 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1624 of 2005
With
LETTERS
PATENT APPEAL No. 1802 of 2005
With
CIVIL
APPLICATION No. 11730 of 2005
In
LETTERS
PATENT APPEAL No. 1624 of 2005
With
CIVIL
APPLICATION No. 497 of 2006
=========================================================
PATEL
MUKESHKUMAR ISHWARLAL & 4 - Appellant(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance :
MR
YATIN OZA, SR. ADVOCATE with MR JS YADAV for Appellant(s) : 1 - 5.
MR
AJ DESAI, AGP for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 2 - 4.
MR MEHUL SHARAD SHAH for Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.S.SHAH
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
Date
: 20/02/2006
COMMON ORAL ORDER
(Per : HONOURABLE MR.JUSTICE M.S.SHAH) Admit.
Heard Mr Yatin Oza with Mr Yadav for the appellants, Mr AJ Desai, learned AGP for respondent Nos. 1 to 4 and Mr Mehul Sharad Shah, learned counsel for respondent No.5 on the question of interim relief.
2. When we passed orders dated 27.12.2005 and 25.1.2006, the parties had not indicated the correct directions. It is now brought to our notice that what was described as the land on the north of constructed row house Nos. 1 to 19 is really the east. Similarly what was described as the southern direction in the said orders is the west. Hence, our previous orders dated 27.12.2005 and 25.1.2006 shall accordingly be read with this clarification.
3. We have taken into consideration various contentions and factual aspects which have been referred to in our previous orders dated 2nd and 27th December, 2005 and also the order dated 25.1.2006. We have also taken into the following factual aspects :-
(i) As per the letter dated 6.2.2006 of respondent No. 5 addressed to Mr Mehul S. Shah, substantial are of open land admeasuring about 1223 sq.mtrs. is still available to the east of row house Nos.1 to 18, even after leaving the requisite margin of 3.05 mtrs. for row house Nos. 1 to 18.
(ii) Although the appellants had earlier shown road of the width of 9 mtrs. in the sanctioned plan, even as per respondent No. 5 authority, the minimum width of the internal road in the society as per the regulations is required to be of 6.09 mtrs. and there is no unauthorized construction on the strip of land with the width of 6.09 mtrs.
(iii) The map produced Mr YN Oza for the appellants (which shall be numbered as Annexure ¿SE¿¿ at page 134).
(Mr Mehul Sharad Shah for respondent No.5 does not admit the correctness of the aforesaid map produced on behalf of the appellants and states that as per the letter dated 6.2.2006 of respondent No.5 addressed to him, the actual construction on the site is 1866.46 sq.mtrs. which is in excess of the permissible built up area of 1495 sq.mtrs.)
4. Having heard the learned counsel for the parties and having taken into account the map produced by Mr YN Oza for the appellants, in the peculiar facts and circumstances of this case, we grant interim stay in the following terms during pendency of the appeals :-
There shall be interim stay of operation and implementation of the order passed by the learned Single Judge which is under appeal, and also interim stay of operation and implementation of the order dated 9.3.2004 of the Collector, Mehsana as confirmed by the State Government by order dated 10.1.2005, directing demolition of all the properties constructed in Kumkum Society on Final Plot No. 10 in Mehsana, subject to the following terms and conditions :-
(a) The appellants or any other person shall not put up any further construction on Final Plot No.10. The open land admeasuring 1223 sq.mtrs. on the east of row house Nos. 1 to 18 shall be permitted by the appellants in LPA No. 1624 of 2005 to be used as the common plot by the occupants of row house Nos. 1 to 37.
(b) On the east of row house Nos. 1 to 18, the strip of land with the width of 3.05 mtrs. shall be kept open as margin land. The width of 3.05 mtrs. shall be measured from the far east portion of row house Nos. 1 to 18. Such margin land of 3.05 mtrs. shall always be kept open as margin land which is admittedly a part of Final Plot No. 10.
(c) There is no interim stay against demolition of unauthorized construction put up on the land required to be kept open as the margin land abutting the Town Planning Road i.e. unauthorized construction which are parts of row house Nos.1 and 37 in the north. There is also no interim stay against demolition of unauthorized construction on the margin land abutting row house No. 19 in the south.
(d) The appellants in both the appeals shall, within thee weeks from today, file undertakings that they shall not put up any further construction on Final Plot No.10 except the construction of a wall surrounding the boundaries of Final Plot No.10 and also for putting up a boundary wall, if any, to the east of row house Nos.1 to 18 so as to cover the margin land to the east of row house Nos.1 to 18.
(e) The appellants in LPA No.1624 of 2005 shall also, within three weeks from today, file undertaking that ¿
(i) they shall not sell, transfer, lease, mortgage, encumber or otherwise dispose of or part with the possession of the open land admeasuring 1223 sq.mtrs. on the east of row house Nos.1 to 18 or any part of the said land.
(ii) they shall permit the occupants of row house Nos.1 to 37 to use the said land as the common plot.
5. At this stage, the Court has not gone into any question except the unauthorized construction on the margin land and there shall be no demolition/removal of any construction otherwise than the aforesaid unauthorized construction on the margin land abutting row house Nos. 1, 37 and 19.
6. It is clarified that this order is passed in view of the peculiar facts and circumstances including the fact that the appellants had shown the road of width of 9 mtrs. in the sanctioned plant although as per the building regulations the minimum width was required to be 6 mtrs.
[M.S. SHAH, J.] [SHARAD D. DAVE, J.] sundar/-