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SCA/6/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6 of 2007
=========================================================
NALINI
HARESH SHAH - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPORATION & 10 - Respondent(s)
=========================================================
Appearance :
MR
JASWANT K SHAH for Petitioner(s) : 1,
MR
PRASHANT G DESAI for Respondent(s) : 1 - 3.
DS AFF.NOT FILED (N)
for Respondent(s) : 4 - 5,5.2.2 - 7, 11,
None for Respondent(s) :
5,
MR PRABHAKAR UPADYAY for Respondent(s) : 8 - 10.
MR
RAJESHWAR J DAVE for Respondent(s) : 8 -
10.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 08/02/2007
ORAL
ORDER
The
petitioner has preferred the petition for the relief inter alia to
challenge the action of the Corporation for the grant of approval
for construction of the building plan.
Heard
Mr. Champaneri with Mr. Shah for the petitioner, Mr. Shelat, Senior
Advocate appearing with Mr.Asthavadi for Mr.Desai for the
Corporation and its officers and Mr.Rajeshwar Dave for respondent
Nos. 8 to 10.
Upon
hearing the learned advocates appearing for both the sides, it
appears that there is no dispute on the point that after the
entertainment of this petition and the interim order passed by this
Court dated 03.01.2007, the Corporation has suspended the
construction permission which is subject matter of this petition and
the Corporation has called upon the applicant who submitted the plan
to produce the documents including the trustees of the Trust,
respondent Nos. 8 to 11 herein, and the Corporation is yet to
consider the matter as to whether the permission granted should be
revoked or not.
The
learned advocate appearing for both the sides under the instruction
of their clients are in agreement on the point that if the
Corporation or the competent officer of the Corporation is to decide
the matter and if the petitioner as well as the trustees of the
trust who have purchased the property, are given opportunity of
hearing and the Corporation is put to the liberty of passing
appropriate order/s in accordance with law, their respective clients
have no objection for such purpose, of course without prejudice to
the rights and contentions of either side to challenge the order in
the event the concerned person is aggrieved by the decision of the
Corporation.
Under
the above circumstances, I find that when the matter is yet to be
considered before the Corporation on the aspects of revocation of
the plan or otherwise, the petitioner can raise the contentions
which are raised in the present petition seeking revocation of the
permission and/or cancellation of the permission. At the same time,
the trustees of the trust, either after purchase of the property or
the applicant who made the application for construction permission
in the capacity as Power of Attorney holder, can pursue the matter
before the Corporation for continuing with the construction
permission already granted.
I
find that it may not be necessary for this Court to examine the
question including on the aspects of the authority of the person who
applied for construction permission and at this stage it should
better be left to the authority of the Corporation for exercise of
the power in accordance with law. At the most, if the decision of
the Corporation is against either side, they may resort to the
remedy as may be permissible in law.
Under
the above circumstances, I find that the following direction shall
meet with the ends of justice :
The
petitioner as well as the trustees of the trust or the original
applicant before the Corporation may make their suitable
representation either for cancellation/ revocation of the
construction permission and/or continuing with such permission, as
the case may be, within a period of two weeks from today.
The
competent officer of the Corporation shall take appropriate decision
in accordance with law on the aspects as to whether the construction
permission granted should be revoked/cancelled or should be
continued and the officer of the Corporation may also give
opportunity of hearing to the aforesaid concerned parties. Such
decision shall be taken preferably within a period of six weeks from
the receipt of the order.
The
order which may be passed by the competent officer of the
Corporation shall not be implemented for a period of two weeks from
the date of its communication to the petitioner as well as to the
applicant before the Corporation or trustees of the trust.
It
is made clear that if the either party is aggrieved by the decision
of the Corporation, they may resort to the remedy as may be
permissible in law against the said decision.
8. Petition
is disposed off in terms of the aforesaid directions. There shall be
no order as to costs.
(JAYANT PATEL, J.)
*bjoy
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