Gujarat High Court
Maheshbhai Hirabhai Arya vs State Of Gujarat & 3 on 11 August, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/LPA/863/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 863 of 2014
In SPECIAL CIVIL APPLICATION NO. 8541 of 2014
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MAHESHBHAI HIRABHAI ARYA....Appellant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR KEYUR A VYAS, ADVOCATE for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 11/08/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Learned Single Judge dismissed the writ petition of the appellant by the impugned judgement dated 22.07.2014. The learned Judge opined that the dispute is between members of the society and that, therefore, Court would not exercise writ jurisdiction under Article 226 of the Constitution of India.
2. Apart from this, learned Judge was also influenced by two additional factors. Firstly that the Collector had already given instructions to the concerned authority to take necessary steps to examine, if the construction which the petitioner objects to, is unauthorized and illegal and, if so found, to take Page 1 of 3 C/LPA/863/2014 ORDER steps to remove the same. The second factor was that the application of the owner of the building for regularization of such unauthorized construction is pending before the authority under the Gujarat Regularization of Unauthorized Development Act, 2011. The learned Judge therefore, in this back ground observed as under:
"11. In this view of the matter, when the dispute is civil dispute between the parties and when the application filed by the respondent no.4 under the Gujarat Regularization and Unauthorized Construction Act, 2011, is pending before the competent authority, this Court is not inclined to entertain present petition to exercise discretionary jurisdiction under Article 226 of the Constitution of the India.
12. Learned advocate for the petitioner submitted that petitioner or other members of the society has filed some objections against authority under the Gujarat Regularization and Unauthorized Construction Act, 2011. It goes without saying that if any objections are filed before the competent authority, then while considering the application filed by the respondent no.4, the concerned authority will take into account the objections and pass appropriate orders in accordance with law."
3. Above noted observations amply take care of the appellant's anxiety that without considering the appellant's objection, the authority may regularize the construction which is otherwise also in terms of the Gujarat Regularization of Unauthorized Development Act, 2011 is not possible or permissible to be regularized. We reiterate that the authority Page 2 of 3 C/LPA/863/2014 ORDER shall take into account the objection of the appellant- petitioner before passing any order of regularization.
4. With above observations Letters Patent Appeal is disposed of.
Sd/-
(AKIL KURESHI, J.) Sd/-
(MOHINDER PAL, J.) Jyoti Page 3 of 3