Gujarat High Court Case Information System
Print
SCA/3321/1998 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3321 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JASMINE
FAROKH GANDHI THROUGH P.O.A. HOLDER - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
PC KAVINA for Petitioner(s) : 1,
MR MR MENGDEY AGP for
Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 04/10/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed for the following
reliefs :-
“[A[
This Hon’ble Court be pleased to issue an appropriate writ order or
direction quashing and setting aside the order at Annexure-“F”.
[B]
That this Hon’ble Court be pleased to declare that, development
permission having been obtained under Section 29 of the Act, the
petitioner is not required to obtain permission under Section 65 of
the Code.
[C]
Pending hearing and final disposal of the present petition, the
operation, execution and implementation of the order passed by
respondent no. 2 dated 28.11.1997 be stayed.”
2. The
learned counsel for the petitioner states that the issue involved in
this petition is squarely covered by the decisions of this Court in
Letters Patent Appeal No. 205/1999 in Special Civil Application No.
2365/1998 dated 17.12.2003, Letters Patent Appeal No. 627/1997 in
Special Civil Application No. 2264/1988 dated 24.11.1999 and in the
case of Karimbhai Kalubhai Belim & Ors. v. State of Gujarat &
Anr. Reported in 1996(1) GLR 659. The order dated 17.12.2003 passed
by the Division Bench in Letters Patent Appeal No. 205/1999 in
Special Civil Application No. 2365/1998 reads as under :-
“#. The appellants have challenged the order of the
learned Single Judge allowing the petition of the
respondents and setting aside the orders of the Collector
and the State Government made on 5th March, 1994 and 18th
February, 1998, respectively, by which demolition of
thirteen shops constructed by the respondent-Society in
Survey No.103/3 within the development area of Kapadwanj
was ordered.
#. The learned counsel appearing for the appellants
argued that the construction of thirteen shops was
contrary to law, because, no permission was granted for
making such construction in the portion of land in which
the shops were constructed at the time when the Collector
had issued order on 29.5.1995 granting permission to
construct twelve residential houses in 1965 sq. mts. of
land while imposing a condition that other 9418 sq. mts.
should be kept open. It was submitted that as per
condition no. 5 of the order dated 29.5.1965, no
construction should be done on the land except by
permission in writing of the Collector. Since no such
permission was obtained, the order of the Collector made
on 5th March,1994 and the revisional order of the State
Government confirming that order requiring the shops to
be demolished were justified.
#. In the order dated 5th March, 1994 at Annexure:I to
the petition, the only ground on which the shops were
ordered to be demolished was that the construction was
made without obtaining the permission of the Collector.
That order was confirmed by the revisional authority on
the same ground.
#. In respect of the agricultural land, the Collector’s
permission is required when any occupant wishes to use
his holding for any purpose other than the purpose
indicated in Section 65(1) of the Bombay Land Revenue
Code, 1879. The provision regarding permission of the
Collector requires an application to be made by the
occupant and the Collector may after due inquiry, either
grant or refuse the permission. This is why the
contention is raised that the Collector’s permission was
not obtained as per the said requirement which was also
reflected in the order dated 29th May, 1965 of the
Collector while permission was granted in respect of 1965
sq. mts. of land.
#. In the present case, there is no dispute about the
fact that the permission to construct thirteen shops was,
in fact, granted by the respondent no.3-Area Development
Authority on 20th November, 1989. This fact is mentioned
in the letter dated 13.9.90 of Kapadwanj Borough
Municipality which is the Area Development Authority,
addressed to the respondent-Society and there is no
dispute about the same. Under Section 26 of the Gujarat
Town Planning & Urban Development Act, 1976, it is
provided that on or after the date on which a draft
development plan is published in the official gazette
under Section 13 in respect of any development area, no
person shall carry on any development in any building or
over any land, within the limits of the said area without
the permission in writing of the appropriate authority
and without obtaining certificate from the appropriate
authority to the effect that the development charge as
leviable under the Act has been paid or that no charge is
leviable. Under Section 27 of the said Act, any person,
not being the Central Government or the State Government,
intending to carry out any development in any building or
in or over any land within the limits of a development
area on or after the date referred to in section 26,
shall except where such development is for any of the
purposes specified in the proviso to that section, make
an application in writing to the appropriate authority
for permission under Section 29 for such development in
the prescribed form and with the required particulars.
#. By Section 117 of the said Act, it was provided
that, notwithstanding anything contained in any other law
for the time being in force, when permission for
development in respect of any land has been obtained
under this Act, such development shall not be deemed to
have unlawfully undertaken or carried out by reason only
of the fact that permission, approval or sanction
required under such other law for such development has
not been obtained. The said provision which was
contained in Clause (a) of Section 117 has been deleted
by Act No. 2 of 1999. However, the permission for
construction of these shops which was granted by the Area
Development Authority on 20.11.89 during currency of the
said provision was sufficient and the construction made
pursuant to that permission cannot be ordered to be
demolished on the ground that permission of the Collector
was not obtained under Section 65 of the Bombay Land
Revenue Code.
#. The impact of the provisions of Section 117 of the
said Act was considered by this Court in Karimbhai
Kalubhai Vs. State of Gujarat and another, reported in
1996 (1) G.L.H. 200 in which the learned Single Judge,
in context of similar facts where permission was obtained
under Section 29 of the Act, held that by virtue of the
provisions of Section 117, the petitioners were not
required to obtain any other permission under any other
law. The learned Single Judge followed the earlier
unreported decisions which are referred to in para-3 of
the judgment for holding that no permission under any
other law including that under Section 65 of the Bombay
Land Revenue Code would be necessary if development
permission was obtained under Section 29 of the Act with
respect to the lands in question.
#. In view of the overriding effect of the provisions of
Section 117(a) of the Gujarat Town Planning & Urban
Development Act, 1976 during the period that it was
operating and in view of the fact that the permission was
already obtained by the respondent-Society for
constructing thirteen shops in the land in question from
the Area Development Authority under Section 29 of the
Act, there was no need to obtain permission of the
Collector for construction of thirteen shops on the land
in question under the provisions of Section 65 of the
Bombay Land Revenue Code or under the terms and
conditions of the order dated 29.5.65. We therefore
fully concur with the reasoning of the learned Single
Judge given for setting aside the orders of the Collector
and the State Government. The appeal is, therefore,
dismissed. There shall be no order as to costs.
2.1. The
order dated 24.111999 passed by the Division Bench in Letters Patent
Appeal No. 627/1997 in Special Civil Application No. 2264/1988 reads
as under:-
” This appeal, which is filed under Clause 15 of
the Letters Patent, is directed against judgment dated
June 28, 1996 rendered by the learned Single Judge in
Special Civil Application No. 2264/88, by which order
passed by the Collector, Vadodara on June 27, 1986 as
confirmed in revision by the State Government vide order
dated February 12, 1988 requiring the respondents to
obtain N.A. permission under section 65 of the Bombay
Land Revenue Code, is set aside.
2. The predecessor in title of the respondents was
regranted land by order dated January 12/23, 1964 on
certain terms and conditions. The predecessor-in-title
of the respondents expired in November, 1983. The
respondents had obtained necessary building permission
under section 29 of the Gujarat Town Planning and Urban
Development Act, 1976 (“Act” for short). Pursuant
thereto, they had started raising constructions onthe
land. The Collector, Vadodara issued notice dated March
11, 1985 calling upon the respondents to show cause as to
why the constructions raised on the land should not be
ordered to be removed under section 66 of the Code, as no
N.A.permission was obtained under section 65 of the Code.
The respondents filed reply to the said notice on March
30, 1985. The Collector by his order dated June 27, 1986
directed the respondents to remove the constructions made
on the disputed land and eviction of the respondents
there-from. Feeling aggrieved by the said order, the
respondents preferred revision before the State
Government under section 211 of the Bombay Land Revenue
Code. The revision came to be rejected vide order dated
February 12, 1988. Therefore, the respondents moved the
High Court by way of filing Special Civil Application No.
2264/88 and prayed the Court to set aside the above
referred to two orders. The learned Single Judge took
the view that as the respondents had obtained building
permission under section 29 of the Act, it was not
necessary for them to obtain N.A.Permission under section
65 of the Bombay Land Revenue Code. Therefore, the
learned Single Judge allowed the petition by judgment
dated June 28, 1996, which has given rise to the present
appeal.
3. We may state that similar view was expressed by
the learned Single Judge in several other matters and the
judgments rendered in some of the matters were subjected
to appeal. In Letters Patent Appeal No. 151/96 arising
out of Special Civil Application No. 7735/95, Division
Bench had passed following order on October 30, 1996 :-
” IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ORDER PASSED BY THE HIGH COURT IN THE CASE OF
1. State of Gujarat
through Collector, Baroda. … Appellants
Versus
1. Patel Kantibhai Mohanbhai,
through constituted power of
attorney Chhotabhai Patel, 72,
Shrijidhan Co.operative Housing
Society,Manjalpur, Baroda. …. RespondentsBEING LETTERS PATENT APPEAL NO. 151 OF 1996: IN SPECIAL
CIVIL APLICATION NO. 7735 OF 1995.
Mr.B.H.Chhatrapati for petitioner no.1
Government Pleader for petitioner no.1
Mr. A.J.Patel for respondent no.1
Notice served for respondent no.1
Mr. P.M.Bhatt for respondents no.2-3
Date of Decision : 30.10.1996
CORAM : G.D.KAMAT, C.J. AND C.K.THAKKAR,J.
(30.10.1996)ORAL ORDER :-
We have heard the learned Counsel on admission
after disposal of the application for condonation of
delay vide Civil Application No. 7797 of 1996. We admit
this appeal. Admission is, however, restricted to the
interpretation of legal provisions.
Shri A.J.Patel, learned counsel appearing on
behalf of the respondents say that the scheme has been
completed. In that multistoreyed building has already
come up. We make it clear that even in the event appeal
succeeds,the order to be made shall not in any way affect
the buildings which are already erected.
Sd/-G.D.Kamat,J.
Sd/-C.K.Thakkar,J”
Again, in Civil Application No. 7798/96, which
was filed in Letters Patent Appeal No. 151/96, following
order was passed :-
“IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 7798 OF 1996
IN
LETTERS PATENT APPEAL NO. 151 OF 1996State of Gujarat …. Petitioner
Versus
Patel Kantibhai Mohanbhai,
through his power of attorney
Chhotabhai Kishorebhai Patel ….. OpponentTo
1. The State of Gujarat
through Collector, Baroda.
2. Patel Kantibhai Mohanbhai,
through P.O.A. Chhotabhai
Kishorebhai
72, Shrijidhan Co.operative
Housing Society, Manjalpur, Baroda.
Whereas the abovenamed petitioner through his
advocate presented the abovenamed application in this
Court praying:
And whereas upon hearing Mr. B.H.Chhatrapapti for
petitioner no.1, Court passed the following order :-
Coram : G.D.Kamat,C.J. and C.K.Thakkar,J.
(30.10.1996)ORAL ORDER :-
Rule. Heard learned counsel for the interim
relief. Stay of the impugned judgment. It shall,
however, not affect the cases which are decided and the
work relating to construction is executed and completed
or under construction. The stay shall cover only those
cases which arise in future. Rule made absolute
accordingly with no order as to costs.
Sd/- G.D.Kamat,C.J.
Sd/- C.K.Thakkar, J.”
4. It is relevant to mention that in Letters Patent
Appeal No. 151/96, Court was called upon to interprete
section 117 of the Act. Section 117 provided effect of
other law and specified that nothwithstanding anything
contained in any other law for the time being in force –
(a) when permission for development in respect of any
land has been obtained under this Act, such
development shall not be deemed to be unlawfully
undertaken or carried out by reason only of the
fact that permission, approval or sanction
required under such other law for development has
not been obtained.
(b) xxxxxxx xxxxxxx xxxxxxxx”
5. The State Legislature has passed Act No.XV of
1999 i.e. “The Gujarat Town Planning and Urban
Development (Amendment) Act, 1999”. By section 21 of the
amending Act, section 117 (a) of the Gujarat Town
Planning and Urban Development Act, 1976 is deleted. The
amending Act was brought to the notice of the Court
hearing Letters Patent Appeal No.151/96 and, therefore,
the Bench hearing appeal has passed following order on
July 2, 1999 :-
“IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 151 OF 1996
in
SPECIAL CIVIL APPLICATION NO. 7735 OF 1995State of Gujarat. …. Appellant
vs.
Patel Kantibhai Mohanbhai … Respondent
Mr.B.H.Chhatrapati for appellant
Mr. A.J.Patel for respondent no.1
Mr. P.M.Bhatt for respondents no.2 & 3.
CORAM: K.G.BALAKRISHNAN,C.J. AND S.D.DAVE,J.
(2.7.1999)ORAL ORDER : (Per : K.G.Balakrishnan, C.J.)
This is an appeal preferred by the State against
the judgment passed in Spl. C.A. No.7735 of 1995. The
respondent herein had obtained development permission and
contended that no further N.A. permission was required to
be obtained from the State authority. That plea was
accepted on the basis of interpretation of section 117A
of Gujarat Town Planning and Urban Development Act, 1976.
While admitting the appeal, it was specifically held that
the appeal was being admitted for the purpose of proper
interpretation of section 117A of the Act. On 30th
October, 1996, the Division Bench has passed order to
the following effect :-
“Shri A.J.Patel, learned counsel appearing on
behalf of the respondent says that the scheme has been
completed. In that multistoreyed building has already
come up. We make it clear that even in the event appeal
succeeds, the order to be made shall not in any way
affect the buildings which are already erected.”
It may also be noted that section 117A of the
Gujarat Town Planning and Urban Development Act, 1976 was
deleted by the Amending Act of 1999. Under the aforesaid
circumstances, the interpretation of the said provisions
is not required. Hence, the appeal is disposed of
accordingly, Notice stands discharged.
Date: 2.7.1999 K.G.Balakrishnan,C.J.
S.D.Dave, J.”
6. In this appeal, the appellant had filed Civil
Application No. 5598/97 praying the appellate court to
stay judgment and order dated June 28, 1996 rendered by
the learned Single Judge in Special Civil Application No.
2264/8, pending hearing and final disposal of the appeal.
It was also prayed that the respondents should be
restraining from raising any construction and/or from
changing the status of the land in question bearing
Survey No. 136 and Final Plot No.69 situated in Vasna
Saied in Taluka Vadodara. Initially, ad-interim relief
was granted and the parties were directed to maintain
status-quo as on September 1, 1997. However, interim
relief was vacated by an order dated September 22, 1997
and Civil Application No. 5598/97 was disposed of.
7. The orders passed by Division Bench in Letters
Patent Appeal No. 151/96 which was filed against
judgment passed in Special Civil Application No. 7735/95
as well as Civil Application No. 7798/96 which was filed
in Letters Patent Appeal No.151/96 make it manifest that
the construction which was raised by the respondents on
the disputed land would not to be affected in any manner,
even if the appeal is to be allowed. There is no manner
of doubt that the appeal involves interpretation of
section 117(a) of the Gujarat Town Planning and Urban
Development Act, 1976. As section 117(a) of the Gujarat
Town Planning and Urban Development Act, 1976 is deleted
by section 21 of the Gujarat Town Planning and Urban
Development (Amendment) Act, 1999, now it is not
necessary for the Court to interprete the said provision
and the issue involved in the appeal has become academic.
It is ruled by the Supreme Court in several reported
decisions that the Court should not decide academic
matters. Under the circumstances, we are of the opinion
that the appeal has become infructuous and deserves to be
disposed of accordingly.
For the foregoing reasons, the appeal fails and
is dismissed as having become infructuous. There shall be
no orders as to costs.”
3. In view of the aforesaid orders passed by this Court, this petition stands disposed of on the same lines. The impugned order at Annexure-F to the petition is quashed and set aside. Rule is made absolute to the above extent with no order as to costs.
[K.S.
JHAVERI, J.]
/phalguni/
Top