Gujarat High Court
Parthivbhaiadhyaru vs State Of Gujarat on 26 April, 2011
Author: K.A.Puj
Bench: K.A.Puj
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 6511 of 2003
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PARTHIVBHAIADHYARU
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 6511 of 2003
MR AMIT M PANCHAL for Petitioner No. 1-7
NOTICE SERVED BY DS for Respondent No. 1
NANAVATI & NANAVATI for Respondent No. 2
MR BHARAT R PANDYA for Respondent No. 3
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CORAM : MR.JUSTICE K.A.PUJ
Date of Order: 09/06/2003
ORAL ORDER
Heard Mr.Rajesh Dave appearing on behalf of Mr.Amit Panchal and Mr.P.R.Pandya, learned advocate appearing for respondent No.3 and Mr.Sudhir Nanavati, the learned Senir Senior for Nanvati & Nanavati on behalf of respondent No.2.
2)The petitioners have filed this petition for enforcing the Rule of law and public duty as averred in the petition. The petitioners have challenged, inter alia, in not taking any action by the respondents, more particularly, the Ahmedabad Municipal Corporation, the respondent No.2 herein, against a private party, namely, Navnitlal Hiralal Kapadia Education Trust, the respondent No.3 herein, even after issuance of statutory notices on the said trust and also allowing them to continue the illegal construction and use of the property in question, in breach of the provisions contained in Bombay Provincial Municipal Corporations Act, 1949, Gujarat Town Planning and Urban Development Act, 1976 and the Gujarat Regularisation of Unauthorised Construction Act, 2001 and also in violation of the judicial pronouncements of this Court as well as of the Honourable Supreme Court.
3)This Court has issued the notice on the respondents on 8-5-2003 making it returnable on 20-6-2003. At the time of issuance of notice this Court has passed an interim order to the effect that during the pendency of this petition, respondent No.2 was directed to restrain the respondent No.3 from putting up any construction which is not in accordance with the plan, which has been sanctioned by the respondent No.2 and the respondent No.3 is restrained from putting up any construction, which is not in accordance with the approved plan.
4)Though the notice was made returnable on 20th June, 2003, the respondent No.3 has moved an urgent note for early hearing of the petition, for the purpose of vacation of an ex-parte ad-interim relief granted on 8-5-2003. The respondent No.3 has also filed their Affidavit in Reply on 27-5-2003, inter alia, contending that the petition is not maintainable and that the petition has been filed to settle the personal score and that the respondent No.3 has been carrying out the construction in accordance with duly approved plans and no illegality is committed or no unauthorised construction for school building is carried out and that the respondent No.3 does not want to claim the exclusive right of the plot No.613 which is common plot for ingress and outgress to the several plot holders.
5)After having considered the Affidavit in Reply filed on behalf of the respondent No.3 and after having heard Mr.B.R.Pandya, the learned Advocate appearing for the respondent No.3, this Court has passed an order on 29-5-2003 directing the respondent No.2 to point out either in the report or in the affidavit as to whether any illegal construction or any construction which is not in accordance with the approved plan has been carried out. Accordingly, an affidavit in reply was filed by the Deputy Estate Officer (West Zone) of the respondent No.2 Corporation, inter alia, contending that the respondent No.3 has submitted a fresh plan on 5-2-2003 for construction of the school building and the same was sanctioned by the respondent NO.2 Corporation. It is further stated that the respondent No.3, in the fresh plan had shown width of the road as 30 ft. instead of 40 feet and had also shown 30% COP instead of 20% CP. It is further stated that unless and until the respondent NO.3 submits the revised plan and get the irregularities removed and obtain revised plan being sanctioned by the respondent No.2 Corporation in accordance with law and new GDCR, no B.U. permission can be granted to the respondent No.3, and without B.U. permission the building, which is constructed for school purpose, cannot be permitted to put into use by respondent No.3.
6)The petitioners have filed Affidavit-in-rejoinder to the affidavit in reply filed by the respondent No.3 and denied the contentions raised by the respondent No.3. The petitioners have specifically denied that the respondent No.3 has right of ingress and egress through Final Plot NO.613. It is further reiterated that the respondent No.3 cannot be allowed to make construction of the school building in violation of relevant clauses and without having adequate facility of approach road for ingress and egress and thereby putting large number of students and other people to difficulties.
7)Looking to the urgency in the matter and since the request was made to hear the matter during vacation, the same is taken up for hearing today. Heard Mr.Rajesh Dave, the learned advocate appearing for Mr.Amit Panchal for the petitioners, Mr.N.C.Sood, the learned AGP for the respondent No.1, Mr.S.G.Nanavati, the learned Senior Counsel appearing for the respondent No.2 and Mr.B.R.Pandya, the learned advocate for the respondent No.3. After having heard the learned advocates appearing for the respective parties and after having considered their pleadings and submissions, as well as after having perused the documents and papers produced, this Court is of the view that the grievance raised by the petitioners in this petition, can not be redressed before this Court, especially when the respondent No.2 Corporation is seized with the matter and is taking all possible and necessary actions. This Court has always deprecated the practice of using this forum to settle the personal score and it is more so when the disputes raised are between the private parties and are absolutely of private nature and no public interest is involved at all. By dragging the statutory corporations or bodies in the frey, the nature of proceedings cannot be changed. Even otherwise, certain disputed questions of facts are also involved and while exercising extraordinary writ jurisdiction under Article 226 and 227 of the Constitution of India, this Court would not like to go into the correctness or otherwise of the said disputed questions of facts. This Court is of the further view that the respondent No.2 Corporation is monitoring the situation and hence this Court should restrain itself from sitting in the armchair of the Corporation.
8)The respondent No.2 Corporation being party in this proceedings, will certainly look into the disputes raised and grievances made by the petitioners in this petition. The construction for school building is still not complete in all respects and B.U. permission is neither sought for nor it is granted. When this question regarding grant of B.U. permission will arise, the respondent No.2 Corporation will consider all these points and take an appropriate decision in accordance with law. One important fact that may not be lost sight of is that the respondent NO.3 is constructing the building for school purpose and about 1100 students are going to get the admission in the said school and hence, once the application for B.U. permission is made, the same may not unnecessarily get delayed and prompt action is expected from the respondent No.2 Corporation. It is open for the petitioners to raise their objections before the respondent No.2 Corporation and if such objections are raised within reasonable time, the same may be put by the respondent No.2 Corporation to the respondent No.3 and after calling for their explanation thereon, if any, the appropriate decision can be taken.
9)Since this Court has not expressed any opinion on the merits of the matter, the respondent No.2 shall take an appropriate decision with regard to grant of B.U. permission, in accordance with law.
10)Subject to the aforesaid directions and observations, the present petition does not have any survival value and hence it is rejected. Notice is discharged. Interim relief granted earlier is vacated.
Direct service is permitted.
(K.A.Puj, J.) /malek