Gujarat High Court
Sakar County Co.Op Housing Service ... vs State Of Gujarat on 5 October, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/1269/2021 ORDER DATED: 05/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1269 of 2021
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SAKAR COUNTY CO.OP HOUSING SERVICE SOCIETY LTD. THROUGH
SECRETARY NATVARLAL RANCHHODLAL PATEL
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
MR NIRAL R MEHTA(3001) for the Respondent(s) No. 3,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,4
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 05/10/2021
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner society has prayed for the following reliefs :-
"(A) YOUR LORDSHIPS may be pleased to admit
and allow this petition.
(B) YOUR LORDSHIPS may be pleased to issue
appropriate writ, order or direction and thereby, quash and set aside the impugned order dated 5.1.2021 passed by the respondent No.3 - AUDA and further be pleased to declare that redistribution and valuation statement ("F" form) as well as the part plan issued by respondent NO.3 - AUDA under Rules 21 and 35 of the Rules, 1979 are against the sanctioned draft Town Planning Scheme No.1 (Shela) and against the Notification dated 4.2.2016 and the same may be cancelled and the respondent No. 3 - AUDA may be directed to issue fresh redistribution and valuation statement ("F" form) as well as the part plan in consonance with the sanctioned draft Town Planning Scheme No.1 (Shela) and Notification dated 4.2.2016 issued by the State Government under Section 48(2) of the Act.
(C) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby, direct the Page 1 of 5 Downloaded on : Wed Oct 06 21:19:20 IST 2021 C/SCA/1269/2021 ORDER DATED: 05/10/2021 respondent No.3 - AUDA to modify the redistribution and valuation statement ("F" form) as well as the part plan issued under Rules 21 and 35 of the Rules, 1979 in consonance with the Notification issued by the State Government under Section 48(2) of the Act dated 4.2.2016 and further be pleased to direct the respondent NO.3 - AUDA being appropriate authority to carry out the modification mentioned in the above-referred Notification issued under Section 48(2) of the Act and thereby, remove the deduction from the original plot of the land owned by the petitioner society and allot the corresponding final plot as per the modified draft town planning scheme as per Notification dated 4.2.2016.
(D) Pending admission and final hearing of this petition, Your Lordships be pleased to stay the operation, execution and implementation of the impugned order dated 5.1.2021 passed by the respondent No. 3 - AUDA.
(E) Such other and further relief or relieves as may be deem fit, just and proper, in the facts and circumstances of the case.".
2. This petition was heard on 27.09.2021 and was put up for orders on 04.10.2021. But, by that time, with the consent of all the learned advocates appearing for the respective parties, learned advocate Mr. Satyam Chhaya for the petitioner has submitted that the petitioner society is not inclined to prosecute the matter any further in view of settled position of law and as such, would like to withdraw the petition. However, learned advocate Mr. Chhaya has requested that by virtue of this implementation and action of the respondent authority, since the common plot and club house of the society are to be demolished for laying down the proposed town planning road at the site and this is to take place at a time when Navratri and Dushhera festivals are ensuing shortly, which would hamper the members of the society to celebrate as since long, the functions related to it were going on right from set up of the society, the interim relief which has already been granted by virtue of order dated 02.02.2021 be continued for a reasonable period so as to see that no demolition can take place during these festivals period i. e. Navratri and Dushhera. For that purpose, learned Page 2 of 5 Downloaded on : Wed Oct 06 21:19:20 IST 2021 C/SCA/1269/2021 ORDER DATED: 05/10/2021 advocate Mr. Chhaya has also requested to continue the interim relief till 19.10.2021 and has stated on instructions that the petitioner society will hand over the vacant and peaceful possession of portion in question i. e. common plot and club house on or before 20.10.2021. Such request was made on 04.10.2021 when the Court was to dictate the order.
3. On 04.10.2021, time was sought to tender an undertaken of the society to that effect. Accordingly, the matter was adjourned to 05.10.2021.
4. Today, when the matter is taken up for hearing, learned advocate Mr. Satyam Chhaya appearing on behalf of the petitioner has tendered an affidavit/undertaking affirmed on 05.10.2021 and signed by the Secretary Shri Natwarlal Ranchhodlal Patel of the petitioner society, undertaking specifically that the society will hand over the possession of common plot and club house which are falling within the town planing road - a subject matter of present petition, on or before 20.10.2021.
5. In view of such situation which is prevailing and since to indicate bona fide, specific undertaking has been filed based upon resolution No.43 of the petitioner society, learned advocates appearing on behalf of the contesting respondents have no objection if interim relief is extended till 20.10.2021. But, such extension is consented in view of specific undertaking and breach thereof would entail consequences. With this clarification, it is requested to pass appropriate orders.
6. Having heard learned advocates appearing for the respective parties and having noted their consent, the said undertaking is taken on record and taking note of such undertaking, the petition is permitted to be withdrawn. However, Page 3 of 5 Downloaded on : Wed Oct 06 21:19:20 IST 2021 C/SCA/1269/2021 ORDER DATED: 05/10/2021 in this peculiar background of facts and since there is a specific consent coupled with the undertaking given to the Court, the Court is inclined to continue the interim relief till 20.10.2021 only. Paragraphs 2 and 3 of the said undertaking are extracted hereunder :-
"2. I say and submit that the petitioner - society has resolved to withdraw the captioned petition in view of its Resolution No.43 dated 30.9.21. Copy of the said Resolution No.43 dated 30.9.2021 is annexed hereto and marked as Annexure-R-I to the Affidavit/Undertaking. It is submitted that the petitioner is a Cooperative Housing Service Society Ltd. and its members are having residential dwelling unit in the society, as can be seen from the facts mentioned in the memo of petition. The area in question is a common plot and common club house which would be subjected to demolition for laying down the proposed TP road at site.
3. It is submitted that the petitioner society is organizing Garba during Navratri at the land in question i. e. at the common plot since last more than 10 years and are performing their Pooja of Goddesses Amba Mataji. It is submitted that in view of prevailing guidelines of the Government, no Garba would be permitted in the party plots and clubs. Therefore, the petitioner humbly requests this Hon'ble Court to continue the interim relief granted by this Hon'ble Court till 19.10.2021 as Dushhera is on 15.10.2021 and to dismantle the arrangements, 3 to 4 days' time would be consumed. At the same time, the petitioner - society hereby undertakes that on or before 20.10.2021, the petitioner - society would hand over the vacant and peaceful possession of the portion of common plot and club house which is falling within the TP road, which is the subject matter of captioned petition. In view of above, the deponent humbly requests this Hon'ble Court to permit the deponent - original petitioner to withdraw the captioned petition and further be pleased to extend the interim relief granted by this Hon'ble Court till 19.10.2021."
7. It is made clear that continuation of interim relief in this peculiar background is considered and granted by this Court upon aforesaid assurance and undertaking given to the Court and if Page 4 of 5 Downloaded on : Wed Oct 06 21:19:20 IST 2021 C/SCA/1269/2021 ORDER DATED: 05/10/2021 any action is found to be in contravention of this undertaking, necessary legal consequences including contempt of court proceedings will be open to be filed by the respondents against the petitioner society and the responsible office bearers.
8. With the above observations and continuance of interim relief till 20.10.2021 only, the petition stands disposed of.
Direct service is permitted.
(ASHUTOSH J. SHASTRI, J) cmk Page 5 of 5 Downloaded on : Wed Oct 06 21:19:20 IST 2021