Gujarat High Court
Porbandar Sharirik Shikshan Pracharak ... vs Collector & 4 on 4 July, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9040/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9040 of 2014
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PORBANDAR SHARIRIK SHIKSHAN PRACHARAK MANDAL....Petitioner(s)
Versus
COLLECTOR & 4....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 5
MR.ROHAN YAGNIK, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 04/07/2014
ORAL ORDER
1. Heard Mr.Nirav Sanghavi for Mr.Ashish Dagli, learned advocate for the petitioner.
2. The petitioner has filed an undertaking, wherein the petitioner has declared and admitted that it has put up construction over common plot and the construction of the premises in question is unauthorized and contrary to applicable rules.
3. Having admitted the said position, the petitioner has, in the said undertaking, declared, promise and assured, the petitioner will shift present establishment to the new or other premises on or before November,2015, and will hand over possession of the disputed premises to the respondents.
Page 1 of 5 C/SCA/9040/2014 ORDER4. For the said purpose, the petitioner asked for time until November-2015.
5. Learned advocate Ms.Hathi and learned advocate Mr.Mehta for the respondent nos.2 and 3 submitted that Mr.Jayesh L.Thakrar, Talati Cum Mantri and Mr.Warangia, Junior Clerk from Taluka Development Office are present in the Court and they are duly authorized to take necessary decision as may be necessary with reference to the subject matter of the petition.
6. Learned advocate Ms.Hathi and learned advocate Mr.Mehta for the respondent nos.2 and 3 submitted, on instructions received from the officers, who are present in the Court, that the panchayat is ready to accept the said undertaking of the petitioner and to stay hands until November-2015 provided that the petitioner shall not ask for any extension thereafter.
7. Learned advocate Ms.Hathi and learned advocate Mr.Mehta for the respondent nos.2 and 3 also submitted that if appropriate order in light of the undertaking given by the petitioner and on the stipulation by the office of the Panchayat that the petitioner shall act in consonance with the undertaking, then on such undertaking the petition may be disposed of.
8. Learned advocate for the petitioner submitted that petitioner undertakes to act in consonance with the undertaking and shall abide by said undertaking.
9. In view of the said submissions by learned advocate for the petitioner and learned advocate for the respondent Page 2 of 5 C/SCA/9040/2014 ORDER nos.2 and 3 and in light of the stipulation of the above mentioned officers of the respondent Panchayat, the undertaking dated 01.07.2014 made by one Mr.P.M.Joshi, Managing Trustee of the petitioner trust is taken on record. The said undertaking is made part of this order. The said undertaking reads thus:-
"I. Purshottambhai Makanji Joshi, Managing Trustee of Shri Porbandar Sharirik Shikshan Pracharak Mandal, Age:Adult, Residing at:Jalaram Colony Opp.HMP Cement, HMP Porbandar, do hereby solemly affirm and state on oath as under:-
1.I say and submit that the trust has construct a school building on plot nos.5,30,31,44,64,65,66 of N.A. Land having Survey No.40/1, 41 and 42 and also on common plot 1 and 2 of the Survey No.40/1, 41 and 42.
2.I further say and submit that the trust has made to communication to respondent no.1 on dated 15.03.2014 to the effect that the trust has taken a decision after careful consideration that the petitioner will remove the construction standing on the common plot and trust will shift the school premises to the other place for that purpose a time is needed up to November-2015, and it was also requested that for larger interest time is needed up to November-2015 for shifting the school premises. It is further stated that the trust will hand over peace full possession of the dispute premises as earlier as possible. I further say and submit that I remain adher to the contention made in the communication to the Hon'ble Collector on 15.03.2014, which is annexed as Annexure-N to the petitioner on page no.56.
3.I further say and submit that I hereby under take that the petitioner trust will remove a construction standing on the common plot no.1 and 2 and on public road Survey No.40/1, 41 and 42 at Village;Khapat of District Porbandar for that purpose petitioner needs a time upto November-2015 and after November-
2015 petitioner trust will handover the peaceful possession of the disputed premises to the village panchayat for that purpose the petitioner hereby undertake to do so as above stated.
4.I further say sand submit that the petitioner trust hereby gives undertaking that it will demolish a construction standing common plot nos.2 and 3 and on public road of the Survey No.40/1,41 and 42 at the end of November-2015 and hand over the peaceful possession of the disputed premises to the panchayat subsequently and further trust will not claim any equity or rights or interest over the disputed property in future.
What is stated herein above is true and correct to the best Page 3 of 5 C/SCA/9040/2014 ORDER of my knowledge and information.
Solemnly affirm on this 1st day of July, 201 at Porbandar."
10. Mr.Sanghavi, learned advocate for the petitioner submitted that petitioner shall abide by the said undertaking and any further extension will not be asked for and that the petition may be disposed of at this stage in light of and in terms of the said undertaking and submission by learned advocates for the respondents.
11. In view of the said submissions, while disposing of the petition as per the statement and submissions by learned advocates for the petitioner and the respondents. It is clarified that if the petitioner does not abide by the said undertaking, then it will be open to respondent nos.2 and 3 to initiate action against which the petitioner who has approached this Court by way of present petition and it will be open to the respondent no.2 and 3 to take all actions, as may be required for the removal of the unauthorized construction of the petitioner. It is also clarified that the stipulation by the respondent nos.2 and 3 will hold good only if the petitioner does not put up any other construction and/or does not commit breach of the undertaking.
12. Learned advocate for the petitioner submitted that since the respondent nos.2 and 3 have accepted the undertaking and stipulated that they will stay hands until November-2015, the petition may be disposed of in terms of undertaking.
13. Accordingly, present petition stands disposed of. Orders Accordingly.
Page 4 of 5 C/SCA/9040/2014 ORDER14. Office is directed to receive and accept Vakalatname from Ms.Hathi, Learned advocate for the respondent nos.2 and 3.
Direct service is permitted.
(K.M.THAKER, J.) Girish Page 5 of 5