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Gujarat High Court

Anandiben Jaidevbhai Patel Wd/O ... vs State Of Gujarat on 4 January, 2021

Author: Vikram Nath

Bench: Vikram Nath, Ashutosh J. Shastri

          C/LPA/997/2020                                         ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 997 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 15594 of 2020
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 997 of 2020
==========================================================
    ANANDIBEN JAIDEVBHAI PATEL WD/O JAYDEVBHAI CHHAGANBHAI
                             PATEL
                             Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
MR RASESH H PARIKH(3862) for the Appellant(s) No. 1,2,3,4
MR HEMANG H PARIKH(2628) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3,4
==========================================================

 CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
        NATH
        and
        HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                Date : 04/01/2021
                                 ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH) 1 We have heard Shri Rasesh Parikh, learned counsel for the appellant.

2 The learned Single Judge dismissed the writ petition on the finding that the writ petitioner - appellant had already filed a suit regarding illegal construction over the land in question which has now been regularized. The regularization order passed by the Ahmedabad Municipal Corporation is dated 16.02.2015, whereas, the writ petition came to be filed some time in October, 2020 i.e. after more than 5½ years. Though the learned Single Judge did not go into the question of delay, Page 1 of 3 Downloaded on : Tue Jan 11 17:19:10 IST 2022 C/LPA/997/2020 ORDER but dismissed the writ petition observing that the writ petitioner would be entitled to claim all the reliefs in the civil proceedings.

3 Before us, Shri Rasesh Parikh, leaned counsel for the appellant has vehemently submitted that the issue of regularization of the construction by the Ahmedabad Municipal Corporation was not an issue before the Civil Court. According to him, before the Civil Court, there are two suits pending one filed by the opposite party for specific performance of contract and the other by the petitioner - appellant not only for specific performance but also for eviction and for removal of illegal construction. It was next submitted that the Ahmedabad Municipal Corporation passed the order of regularization on 16.02.2015 during the pendency of the suit and without affording any opportunity or notice to the present appellant. It was only when the opposite party filed regularization order dated 16.02.2015 as part of his evidence in the civil proceedings that the appellant came to know of the same. If the order dated 16.02.2015 was passed without due notice and opportunity to the present appellant, who claims himself to be the owner of the land in question as both the sides have filed suits for specific performance, it would have been appropriate for the appellant to have approached the Ahmedabad Municipal Corporation for withdrawal of the regularization order on the grounds of misrepresentation, concealment and may be fraud, if admissible. Instead, the appellant filed Special Civil Application, which came to be dismissed by the learned Single Judge.

4 At this stage, Shri Parikh, learned counsel for the appellant submits that he may be permitted to withdraw the appeal leaving it open to the appellant to approach Ahmedabad Municipal Corporation for withdrawing / cancelling the order of regularization dated 16.02.2015 on whatever grounds that may be admissible to the appellant.

5 We accordingly dismiss this appeal as withdrawn with liberty as prayed. If such an application is moved before the Ahmedabad Municipal Corporation, the same shall be decided on its own merits by the Corporation uninfluenced by the observations made in this order or the order dated 16.12.2020 passed by the learned Single Judge. The Ahmedabad Municipal Corporation shall decide the application after affording due opportunity of hearing to all the concerned parties preferably within a period of two months from the date of production of the said application along with the certified copy of this order.

Consequently, connected Civil Application stands disposed of.

(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) P. SUBRAHMANYAM Page 3 of 3 Downloaded on : Tue Jan 11 17:19:10 IST 2022