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CA/13650/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR ORDERS No. 13650 of 2010
In
LETTERS PATENT APPEAL (ST NO.2334/2010) No. 362 of 2011
In
SPECIAL CIVIL APPLICATION No. 4620 of 2009
With
CIVIL
APPLICATION No. 4146 of 2011
In
CIVIL APPLICATION No. 2476 of 2011
With
CIVIL
APPLICATION No. 2475 of 2011
In
LETTERS PATENT APPEAL No. 362 of 2011
With
LETTERS
PATENT APPEAL No. 362 of 2011
With
CIVIL
APPLICATION No. 2476 of 2011
In
LETTERS PATENT APPEAL No. 362 of 2011
With
CIVIL
APPLICATION No. 4079 of 2011
In
CIVIL APPLICATION No. 2476 of
2011
=================================================
JYOTIBEN
ANILKUMAR GAJJAR & 6 - Petitioner(s)
Versus
LUTHRA
PUBLIC TRUST & 4 - Respondent(s)
=================================================
Appearance
:
MR
DHAVAL D VYAS for Petitioner(s) : 1 - 7.
NOTICE SERVED BY DS for
Respondent(s) : 1 - 5.
VIRAL K SHAH for Respondent(s) : 1,
MR
KAUSHAL D PANDYA for Respondent(s) : 2 - 3.
MR
PG DESAI for SURAT MUNICIPAL
CORPORATION
=================================================
CORAM:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 31/03/2011
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
ORDER
IN C.A. NO. 13650/2010:
This
petition for leave to appeal has been preferred by seven applicants
for assailing the judgment dated 27th August 2010 passed by the
learned Single Judge in Special Civil Application No.1906 of 2009
with Special Civil Application No.4620 of 2009. Therein, the Court
having made certain observations and directions to decide the
representation relating to removal of illegal construction, the
present leave to appeal has been preferred on the ground that the
applicants, who are members of `Janata Nagar Cooperative Housing
Society’, are affected, as the Surat Municipal Corporation has issued
notice of demolition against them. Learned counsel appearing on
behalf of Luthra Public Trust opposed the prayer mainly on two
grounds; (i) that no specific direction has been issued with regard
to the applicants and (ii) applicants being represented by their
cooperative society in the writ petition, no separate permission be
granted to the individual members.
Having
heard learned counsel for the parties and other respondents, in the
present case, as we find that ultimately Surat Municipal Corporation
has taken steps for demolition of the building of the applicants, and
they will be directly affected in view of the impugned order in
question, we allow the Civil Application and grant leave to appeal
against the impugned order dated 27th August 2010 passed by the
learned Single Judge in Special Civil Application No. 1906 of 2009
with Special Civil Application No.4620 of 2009. Civil Application
No.13650 of 2009 stands disposed of.
ORDER
IN C.A. NO. 4146/2011:
This
Civil Application has been preferred by Dhanraj Laxmandas Nagpal and
22 others for impleading them as parties-appellants nos. 8 to 38 to
the Letters Patent Appeal No. 362 of 2010, of which leave has been
granted in favour of Jyotiben Anilkumar Gajjar and 6 others of
`Janata Nagar Cooperative Housing Society’ in Civil Application No.
13650 of 2010. Referring to the impugned judgment dated 27th August
2010 passed by the learned Single Judge in Special Civil Application
No.1906 of 2009 with Special Civil Application No.4620 of 2009, it is
stated that they are
also similarly situated, as Surat Municipal Corporation has also
issued notice for demolition of their building. Having heard learned
counsel for the parties and taking into consideration the fact that
Dhanraj Laxmandas Nagpal and 22 others are also similarly situated
like Jyotiben Anilkumar Gajjar and 6 others, we allow this petition
and allow the applicants to be impleaded as appellants nos. 8 to 38
to the Letters Patent Appeal No. 362 of 2011. Civil Application
stands disposed of.
ORDER
IN C.A. NO. 2475/2011:
This
petition has been filed to condone delay of 29 days in preferring the
Letters Patent Appeal. The main plea taken by the applicants is that
they were not parties to the said case, and when they received
notices from Surat Municipal Corporation they could come to know of
the order of this Court and filed leave to appeal against the order
dated 27th August 2010 passed by the learned Single Judge in Special
Civil Application No.1906 of 2009 with Special Civil Application
No.4620 of 2009. Notices have been served on the respondents and
they have appeared.
Having
heard learned counsel for the parties, and being satisfied with the
grounds shown, delay of 29 days in preferring the Letters Patent
Appeal is condoned. Civil Application No.2475 of 2010 stands
disposed of.
ORDER
IN L.P.A. NO.362/2011 & C.As. NOs. 4079 & 2476/2011:
The
Letters Patent Appeal has been preferred by Jyotiben Anilkumar Gajjar
and 6 others against the common order dated 27th August 2010 passed
by the learned Single Judge in Special Civil Application
No.4620 of 2009 with Special Civil Application No.1906 of 2009.
The
appellants are members of Janata Nagar Cooperative Housing Society.
The said Housing Society preferred the writ petition, Special Civil
Application No. 1906 of 2009, alleging that certain illegal
constructions were made by Luthra Public Trust. The other writ
petition, Special Civil Application No. 4620 of 2009, was filed by
Luthra Public Trust for direction on Surat Municipal Corporation to
dispose of their representations dated 21st November 2008 and 6th
January 2009, whereby Luthra Public Trust has pointed out the illegal
construction made by the members of the Janata Nagar Cooperative
Housing Society. When the matter was taken up on 27th August 2010,
Luthra Public Trust gave an undertaking that they will demolish the
illegal construction made by them. The Court in paragraph No.6 of
the impugned order dated 27th August 2010 directed Luthra Public
Trust to act as per their undertaking.
So
far as the prayer of the other petitioners – Luthra Public Trust is
concerned, learned Single Judge at paragraph no. 7 of the order made
the following observations:
“Now,
so far as the prayer of petitioner, Luthra Public Trust to take
appropriate steps on the representation dated 21.11.2008 and
06.01.2009 pointing illegal construction made by the members of the
society and to take steps to remove the same is concerned, respondent
Corporation is hereby directed to look into the said
application/representation dated 21.11.2008 and 06.01.2009 made by
the petitioner Luthra Public Trust and take appropriate steps in
accordance with law and on merits and after giving an opportunity to
the respective members and after following due procedure, however,
the same shall be done within a period of there months from today.
However, it is made clear that this Court has not expressed anything
on merits with respect to the alleged illegal construction
pointed out in representations dated 21.11.2008 and 06.01.2009 and it
is ultimately for the Corporation to take appropriate steps in
accordance with law and on merits and by this order, this Court has
directed the Corporation to look into the same and if it is found
that some illegal and unauthorized construction is made, to take
steps in accordance with law and on merits after following due
procedure of law within stipulated time as stated herein above.”
Both
the writ petitions were disposed of with the aforesaid observations.
According
to the appellants, they are aggrieved by the above observations of
the learned Single Judge at paragraph no.7 of the judgment. It is
stated that they were not heard, and giving reference of the Court
order, Surat Municipal Corporation has issued notices to all the
appellants, and on receipt of their replies, ordered to demolish
respective premises of the appellants. Learned counsel appearing on
behalf of Luthra Public Trust would contend that Janata Nagar
Cooperative Housing Society, of which the appellants are members, has
not made any objection with regard to the observations made by the
learned Single Judge.
Learned
counsel appearing on behalf of the Surat Municipal Corporation would
contend that the Court has mainly directed to decide the
representations preferred by Luthra Public Trust. Pursuant to the
said representations, illegal construction having been noticed,
Corporation had issued individual notices to owners of such illegal
structure, and has now decided to remove the illegal construction
after giving them a further opportunity of hearing.
We
have heard learned counsel for the parties and perused the record.
From the observations made by the learned Single Judge at paragraph
no.7 of the judgment, as quoted above, it will be evident that the
learned Single Judge has not passed the impugned order against any
individual. The Court has directed the Corporation to look into the
representations dated 21st November 2008 and 6th June 2009 preferred
by the petitioner-Luthra Public Trust, and to take appropriate steps
in accordance with law and on merit after giving an opportunity of
hearing to the respective members and following due procedure of law,
and a time frame has been given to complete the process. In this
background, we are of the opinion that in absence of any specific
direction against the appellants, at the instance of the appellants
no interference is called for against the impugned order dated 27th
August 2010 passed by the learned Single Judge in Special Civil
Application No.1906 of 2009 with Special Civil Application No.4620 of
2009.
We
have noticed the stand taken by the learned counsel for the Surat
Municipal Corporation. He has stated that merely a notice has been
issued on the appellants, many of whom, have already filed their
replies. They will be given again hearing and only thereafter final
decision will be taken. In view of such stand taken by the
Corporation, we allow the appellants to file their replies, if not
yet filed, within one week. They may enclose a copy of the building
plan approved by the competent authority and may show that their
construction is in accordance with law and not illegal. The
Corporation, in its turn, on hearing the parties and taking into
consideration the documents as may be placed by the individual
appellants, will consider (i) whether the construction
is in accordance with law and the sanctioned building plan and (ii)
if it is not in accordance with the sanctioned building plan, then to
what extent the illegal construction has been made, and only after
such determination, the Corporation will take appropriate steps for
removal of such portion of construction, which will be found to be
illegal. If the appellants fail to file their respective replies or
failed to appear before the competent authority of the Corporation,
the Corporation may proceed ex-parte. Therefore, it is desirable
that the appellants should file their reply within one week and
should appear before the competent authority within ten days.
So
far as the question of regularization of any construction is
concerned, if there is any scheme of the State Government or
Corporation or any other competent authority, it will be open to such
appellant to request the competent authority to take steps for
regularization, instead of demolition. But, in that case also, they
will have to apply within fifteen days along with requisite fee, if
any, prescribed under the law, and the decision relating to illegal
construction be taken by 15th May 2011. If any application is filed
for regularization along with requisite fee, that process must be
completed by 15th June 2011. Thereafter, if any illegal construction
is noticed, it will be open to Surat Municipal Corporation to
demolish the same, preferably by 15th July 2011. The Letters Patent
Appeal stands disposed of with the aforesaid observations and
directions. No costs. Direct service is permitted.
In
view of the order passed in the Letters Patent Appeal, no further
order is required to be passed in Civil Applications Nos. 2476 and
4079 of 2011
and the same stands disposed of.
(S.J.
MUKHOPADHAYA, C.J.)
(J.B.
PARDIWALA, J.)
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