Gujarat High Court
Shyam Bunglows And Tenament Society vs State Of Gujarat on 16 July, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/10024/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10024 of 2018
==========================================================
SHYAM BUNGLOWS AND TENAMENT SOCIETY
Versus
STATE OF GUJARAT
==========================================================
Appearance:
DENISHKUMAR B MORAKHIA(8968) for the PETITIONER(s) No. 1
MR NISHANT LALAKIYA(5511) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3,4,5,6
MS NISHA THAKORE, AGP for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 16/07/2018
ORAL ORDER
1. Arguments on this petition were heard on 13th July 2018, however since learned advocate Mr. Lalakiya appearing for learned advocate Mr. Morakhia for the petitioner wanted to take some instruction from the petitioner, the petition was kept today for order.
2. The petition is filed under Articles 226 and 227 of the Constitution challenging the order dated 27.2.2017 passed by the respondent No.3- Collector and the order dated 26.4.2018 passed by the respondent No.2- Secretary, Revenue Department (Appeals).
3. It appears that earlier, Indian Red Cross Society- respondent No.6 was allotted the land admeasuring 743 Sq. Mtrs. in two parts from Survey No.665/1P. However, the respondent No.6 requested to allot such land in only one block as the purpose for which the construction of the building is to be made, could be achieved if allotment of land could be made in one block. Such request was considered and the Collector accordingly passed order dated 27.2.2017 for allotment 743.45 Sq. Mtrs. of land to the respondent No.6 in one block for use thereof for health services. The Collector has observed in the order that the petitioner society demands Page 1 of 4 C/SCA/10024/2018 ORDER allotment of the remaining land, admeasuring 196 Sq. Mtrs. from Survey No.665/1P at market price for its members, the proposal shall be made to the Government. Such order of the Collector was challenged by the petitioner before the Secretary by filing Revision Application No.2 of 2017. The Secretary rejected the revision and confirmed the order of the Collector by the impugned order.
4. Learned advocate Mr. Lalakiya for the petitioner submitted that when the petitioner society was granted N.A. permission, the layout plan was sanctioned providing for approach road to the petitioner society through the land which is now granted to the respondent No.6. Mr. Lalakiya submitted that the petitioner society accordingly marked and made road/ way through the land in question and such way has been in use for last many years by the members of the petitioner society and there is no alternative way available to the members of the petitioner society. Mr. Lalakiya submitted that now by the order of the Collector in favour of the respondent No.6 for allotment of land in one block by clubbing two different parts of the land, the members of the petitioner society shall be left without any way to approach the public road.
5. Learned Assistant Government Pleader Ms. Thakore on the other hand submitted that undisputably, the petitioner has no right to the land in question which is Government land. She submitted that the petitioner has unauthorizedly and without any permission made private way/ road through the Government land which is now allotted to the respondent No.6. She submitted that since the land allotted is to be used for providing health services by respondent No.6- Red Cross Society, the petitioner cannot object to clubbing of two different parts of the land so as to allot in one block admeasuring 743.45 Sq. Mtrs. to the respondent No.6. She submitted that even as per the original layout plan sanctioned, the members of society have alternative way to approach the public road. From the sanctioned layout plan for the petitioner society, Page 2 of 4 C/SCA/10024/2018 ORDER learned Assistant Government Pleader Ms. Thakore pointed out that there are two common open plots (COP) which are described as COP-A and COP-B. She submitted that from COP-A, the members have straight access and approach the open road being used by public and in fact, there is a gate placed at the end of COP-A, which if is opened by the petitioner society, the members of the petitioner society shall have straight access to public road and therefore, it is not correct to say that there is no alternative way available to the members of the petitioner society. She, during the course of hearing, has shown photograph taken by the officer present in the Court to point out that there exists a gate placed at the end of COP- A and through the gate, pubic way / road is clearly seen. She submitted that the petitioner, as a matter of right, cannot claim use of the road from the land allotted to the respondent No.6. She submitted that since the petitioner has no right to the land in question and since there is an alternative way available to the members of the petitioner society to approach the public road, the Court may not interfere with the impugned orders.
6. The Court, having heard learned advocates, finds that whether to allot Government land to the respondent No.6 for providing health services, in two parts or in one block is the executive function and therefore, the Court will not like to sit in appeal over such decision of the Collector in exercise of its powers under Articles 226 and 227 of the Constitution. As regards the claim of the petitioner that there is no alternative way available to the members of the petitioner society, except the way made by it through the land in question, it is seriously disputed by pointing out that the members of the petitioner society can have approach to the public road from the gate placed at the end of COP-A. The Court finds that whether the petitioner has alternative way or not is a matter to be decided on evidence. The dispute as regards the availability of alternative way raised before this Court cannot be decided in the petition filed Page 3 of 4 C/SCA/10024/2018 ORDER under Articles 226 and 227 of the Constitution. In any case, since the petitioner has no right to the land in question and it has unauthorisedly made private way through the land in question for use of its members, it cannot call in question the decision of the Collector in allotting the land in question in one block to the respondent No.6 which is going to use it for providing health services for public. In such view of the matter, the Court finds that no case is made out for interference in the impugned orders in exercise of the powers under Articles 226 and 227 of the Constitution of India and the petition deserves to be rejected. Accordingly, the petition is rejected.
(C.L. SONI, J) OMKAR Page 4 of 4