Gujarat High Court
Taj Cooperative Housing Service ... vs Surat Municipal Corporation & 5 on 23 July, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/LPA/734/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 734 of 2013
In SPECIAL CIVIL APPLICATION NO. 2671 of 2013
With
CIVIL APPLICATION NO. 5627 of 2013
================================================================
TAJ COOPERATIVE HOUSING SERVICE SOCIETY THRO SECRETARY &
4....Appellant(s)
Versus
SURAT MUNICIPAL CORPORATION & 5....Respondent(s)
================================================================
Appearance:
MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 5
MR SP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 5
MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 1
MR KEYUR K ACHARYA, ADVOCATE for the Respondent(s) No. 5
MS RENISHA R VYAS, ADVOCATE for the Respondent(s) No. 3 - 4
NOTICE SERVED for the Respondent(s) No. 2 , 6
================================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 23/07/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Appellants/original petitioners have challenged the judgment of learned single Judge dated 22.04.2013 passed in SCA No.2671 of 2013. Petitioners are owners/occupants of private houses constructed in final plot No.146 of Town Planning Scheme No.30 of Rander (Surat). They objected to the Page 1 of 5 C/LPA/734/2013 ORDER Surat Municipal Corporation granting development permission to respondents No.3 to 5 herein of some of the plots situated in the said final plot by an order dated 16.01.2013. Litigation has been going on since many years. Originally, land-owner had made sub-plots with permission of the Corporation authorities. Such permission was granted on several conditions, including for providing roads as mentioned in the approved plan as also of keeping three common plots open. Total area of such common plots came to 1072 sq. mtrs. In the year 2002, Municipal Corporation approved a revised plan for development of the land in which the common plots were combined from three to two common plots and total open area available under such common plots was reduced to 769 sq. mtrs. In the year 2007, Corporation authorities themselves cancelled such permission, upon which aggrieved parties approached this Court by filing SCA No.30285 of 2007 and connected petitions. Such petitions were disposed of by an order dated 17.7.2008. By virtue of further order dated 22.8.2008 passed in writ petitions filed by the objectors, the land-owners were allowed to apply to Surat Municipal Corporation for fresh permission to be decided in accordance with law after considering the objections of other residents. Page 2 of 5 C/LPA/734/2013 ORDER
2. Such permission came to be granted by an order dated 16.01.2013. Petitioners challenged that permission mainly on the grounds that their objections were not properly considered; common plot was not made available for development contrary to the original development permission and, in any case, appropriate area was not earmarked for common plot.
3. These objections were considered by learned single Judge by a detailed judgment. Such objections were overruled and the writ petition was dismissed. Hence, this appeal.
4. Having heard learned counsel for the parties and having perused the documents, we are broadly in agreement with the views of the learned single Judge. Appellants/petitioners have not been able to point out that reduction in the area of common plot from 1072 sq. mtrs. to 769 sq. mtrs. is opposed to the GDCR presently prevailing. We are informed that total area of the original plot comes to 7444 sq. mtrs. GDCR required a minimum of 10% of the area open for common activities.
5. Learned counsel for respondents pointed out that Page 3 of 5 C/LPA/734/2013 ORDER subsequent to initial development permission granted in the year 1981, town planning scheme covered the area which led to many developments, including town planning roads and reconstitution of plots. That being the position, it became necessary to reconstitute the common plots by eliminating small portions of common plot which survived and left no useful purpose. In a sense, all requirements have been followed.
6. Neither learned counsel Mr.Pandya for private respondents nor Mr.Dhaval Nanavatdi for the Corporation could state with any degree of certainty whether the new common plot admeasuring 769 sq. mtrs. has been measured and earmarked at the site or not. It would be necessary to do so since one of the allegations of the petitioners has been that the present development plan would permit construction in such a way that the common plot would be reduced by approximately 75 sq. mtrs. LPA and civil application are disposed of with the following directions:
(i) the authorities shall earmark the new common plot at the site admeasuring 769 sq. mtrs., if not already done. Both sides would be allowed to participate in Page 4 of 5 C/LPA/734/2013 ORDER such process which we expect shall be carried on peacefully; and
(ii) construction that the plot owners may carry on as per the revised plan shall in no way encroach on such common plot so earmarked, after carrying on required site measurement, failing which it will be open for the petitioners to take necessary steps to prevent the developers from doing so.
Sd/-
(AKIL KURESHI, J.) Sd/-
(MOHINDER PAL, J.) (KMGThilake) Page 5 of 5