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SCA/818920/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8189 of 2008
With
CIVIL
APPLICATION No. 12048 of 2008
In
SPECIAL CIVIL APPLICATION No. 8189 of 2008
============================================
SATYENDRABHAI
KHUSHALBHAI PATEL & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
============================================
Appearance
:
MR AB
MUNSHI for Petitioner(s) : 1 - 2.
MR HEMANT
MACKWANA ASST. GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 1 -
3.
============================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 15/10/2008
ORAL
ORDER
1. This
petition under Articles 226 and 227 of the Constitution of India is
filed by the petitioners with following prayers:
27(a)
the Hon’ble Court may be pleased to issue a Writ of Mandamus or any
other appropriate writ, order or direction, directing respondent no.
2 to issue a formal order granting N.A. permission to the petitioners
in respect of the land bearing Block No. 117 (survey No. 151/5),
admeasuring 2630 sq.mts. Of village Ambli, Taluka Dascroi, District
Ahmedabad;
(b)
The Hon’ble Court may be pleased to issue a writ of mandamus or any
other appropriate writ, order or direction, directing respondent no.3
to effect appropriate entry in village form no.6 showing that the
aforesaid land is permitted to be converted into N.A. use by
respondent no.2.
(c)
pending admission, hearing and final disposal of this petition, the
Hon’ble Court may be pleased to direct respondent no. 2 to issue a
provisional N.A. permission to petitioner no.1 in respect of the
aforesaid land, so as to permit petitioner no.2 to apply for issuance
of development permission to the competent authority.
2. In
the compilation of the petition certain correspondence entered into
between the petitioners and the respondents is annexed.
2.1. In
the affidavit-in-reply filed in the above Special Civil Application,
the deponent of the affidavit had clearly stated that by a letter
dated 31.1.2006, the petitioner was specifically directed to produce
an extract of revenue record of village Form No. 7/12, Form No. 6,
8-KH for the year 1971-72 and 2004-2005 along with other documents
namely Zoning Certificate in case if petitioners have submitted an
application before AUDA for development receipt of such application,
F-Form and part plan of TPS. In the rejoinder filed to the
affidavit, the petitioners herein dispute requirement of certain
documents and submitted that procedure adopted by the authority of
delaying grant of permission, is illegal and the above communication
was not received by the petitioners.
3. On
14.8.2008, this Court (Coram: Hon’ble Mr. Justice Akil Kureshi)
passed following order:
Petitioners
have complained about the respondents not granting NA permission for
plot of land held by the petitioners. Petitioners contend that an
application for the said purpose was made on 27.1.2006, but the same
was not replied to. In the affidavit in reply, however, the
respondents contend that the application of the petitioners was
responded to and the petitioners did not fulfill the queries raised
in the communication dated 31.1.06.
At
this stage, it is not necessary to go into the above disputes between
parties. Learned advocate Shri Munshi for the petitioners submitted
that the petitioners would promptly fulfill all requirements raised
in the said communication and also pay whatever legal necessary
charges. However, the respondents be directed to take early decision
in the application of the petitioners since the petitioners are
suffering due to indefinite delay.
Learned
AGP Shri Shah submitted that if the petitioners fulfill all legal
requirements, the authorities will examine the same and pass
appropriate order expeditiously. Under these circumstances, it is
directed that the petitioners may fulfill the queries raised by the
respondents in the communication dated 31.1.06 within a week from
today. If the respondents have any further requirements, the same
shall be conveyed within three days of the petitioners supplying
the details as mentioned above. The petitioners would have on week
thereafter to submit the necessary materials. The authorities shall
take a final decision on the request of the petitioner despite
pendency of the present petition latest by 15th October
2008 and place the same before the court on the next date of hearing.
S.O. 17th October 2008.
Direct
service.
4. Today
an application for draft amendment is submitted bringing on record
the decision taken by the competent authority on 17.9.2008 and
submitted that the aforesaid decision is not in accordance with the
directions issued by this Court. Not only that but though the
petitioners were to be given a further opportunity for compliance, no
such opportunity is given and as per Section 65 of the Code, the
earlier application of the petitioners were not decided and the
application deemed to have been granted by the authority.
5. It
is an admitted fact that pursuant to the order passed on 14.8.2008,
the decision dated 17.9.2008 is already taken by the District
Collector, Ahmedabad and following non-compliance is reported that
the petitioners have not complied with the issues raised by the Dy.
District Development Officer. That, inspite of specific request on
earlier occasion as per the letter of 2006, the relevant record of
village Form No. 6 was not submitted. Even certified copies as
required for considering the application of the petitioners for
zoning certificate was not submitted and in case if the petitioners
wanted to develop the land, any application forwarded before the
Ahmedabad Urban Development Authority was also not produced and part
plan and the F-Form pertaining to T.P. Scheme were also not the part
of the record submitted by the petitioners. However, in addition to
the above, the concerned District Collector has taken into
consideration the Government Resolution dated 1.7.2008 issued by the
Revenue Department of the Government in exercise of powers under
Section 65 of the Code, locus of the petitioner that only the
occupant or the lawful holder of the land can apply. At the same
time, the petitioners herein is given an opportunity to obtain a
specific Form No. 18 and thereafter to submit application as per the
requirement so that within specific time limit the request of the
petitioner for N.A. permission can be considered.
6. The
above decision dated 17.9.2008 cannot be said to be in any manner
arbitrary, unreasonable or discriminatory as violative of Article 14
of the Constitution of India and the application of the petitioner
was pending and not decided and, therefore, the provision of law of
the land in force with regard to subject matter is applicable and
according to this Court when against this order also remedy under the
statute is available, no case is made out to exercise powers under
Article 226 of the Constitution of India.
7. Petition
is rejected. Notice is discharged.
[ANANT
S. DAVE, J.]
//smita//
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