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SCA/10404/2008 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10404 of 2008
With
CIVIL
APPLICATION No. 5537 of 2009
In
SPECIAL
CIVIL APPLICATION No. 10404 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
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 ?
=========================================
BILESHWAR
INDUSTRIAL ESTATE DEVELOPERS PRIVATE LIMITED - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================
Appearance :
M/S
THAKKAR ASSOC. for
Petitioner(s) : 1,
MR MR MENGDE, AGP for Respondent(s) : 1,
MR
RM CHHAYA for Respondent(s) : 2 -
4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 21/01/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 226 of the Constitution of India
the petitioner has prayed for an appropriate writ, order or direction
quashing and setting aside the impugned decision dated 12/10/2007
made by the respondent-Corporation by further directing the
respondent-Corporation to grant permission to the petitioner for
commercial use, as per the revised plan submitted alongwith the
representation dated 31/08/2007, in respect of part of the
land/property forming part of Final Plot No. 315 of T.P. Scheme No.
1, Odhav, Ahmedabad.
2. It
appears that the land bearing Survey Nos. 36, 37, 38, 39, 40, 41 and
42 (Part) of village Odhav admeasuring 71,078 sq meters and Survey
Nos. 74, 75/1, 75/2, 79/1, 79/2 and 80 of village Nikol, District
Ahmedabad was owned by one Indian Electro Chemical Ltd. and was
mortgaged in favour of Union Bank of India. It appears that the
proceedings were initiated by the Recovery Officer, Debts Recovery
Tribunal, Ahmedabad to recover the dues of Union Bank of India by
selling the aforesaid property, which was mortgaged in favour of
Union Bank of India. It is the case on behalf of the petitioner that
the Recovery Officer invited bids and as the petitioner was found to
be the highest bidder, the same came to be accepted and sale
certificate in respect of the subject land came to be issued in
favour of the petitioner. In the meantime, land bearing Survey Nos.
36 to 42 were subjected to Town Planning Scheme and under the
finalised Town Planning Scheme it was given Final Plot No. 315
situated at Odhav. It is the case on behalf of the petitioner that
Final Plot No. 315 consisted of sub-plot Nos. 1 and 2 admeasuring
66,403 sq meters. It appears that out of the total parcel of land,
land admeasuring 5082.04 sq meters was taken by the
respondent-Corporation for the purpose of road, which is already
surrendered to the respondent-Corporation and is constructed. There
is some dispute with respect to payment of compensation for which
Letters Patent Appeal is pending. It is the case on behalf of the
petitioner that after the aforesaid deduction, sub-plot No. 1
admeasures 49,219.32 sq meters whereas sub-plot No. 2 admeasures
11,996.44 sq meters. According to the petitioner, the
respondent-Corporation has approved the plan dated 09/08/2005 for
‘A’ Block consisting of 48 industrial sheds and permission dated
10/08/2005 was granted by the respondent-Corporation to construct
for ‘B’ Block 43 industrial sheds and vide permission dated
01/02/2006, respondent-Corporation granted permission to construct
‘C’ Block. According to the petitioner, apropos the aforesaid
permissions, the petitioner constructed 48 industrial sheds forming
part of ‘A’ Block and developed industrial sheds forming part of ‘B’
Block and ‘C’ Block. It is the case on behalf of the petitioner that
after obtaining B.U. Permission, petitioner had sold in all 128
industrial sheds to different persons on different dates and
possession of the industrial sheds have also been handed over to the
purchasers. It appears that thereafter the petitioner submitted
revised plan for commercial use of ground floor and first floor with
respect to 78 properties facing the road, which is on
Odhav-Kapadvanj Highway.
3. Shri
Navin Pahwa, learned advocate appearing on behalf of the petitioner
has submitted that as there was dispute with respect to non payment
of municipal tax with respect to the persons occupied on the ground
floor, the petitioner has restricted the prayer to grant development
permission with respect to the first floor only and, therefore, the
respondent-Corporation is now required to consider the application of
the petitioner for revised plan with respect to the first floor only.
It is the case on behalf of the petitioner that the
respondent-Corporation is not processing the revised development plan
submitted by the petitioner with respect to the first floor and,
therefore, the present Special Civil Application has been preferred
under Article 226 of the Constitution of India.
4. Shri
Navin Pahwa, learned advocate appearing on behalf of the petitioner
has submitted that as such the petitioner has nothing to do with the
industrial sheds of Unit Nos. 1 to 78, except Unit Nos. 9 and 67, as
the petitioner has already sold those Units to various persons,
names of whom have been referred to in the further affidavit at
Annexure A and for non-payment of municipal tax by them, the
petitioner shall not be penalised and/or the respondent-Corporation
cannot refuse to consider the revised development plan submitted by
the petitioner with respect to first floor. Shri Navin Pahwa,
learned advocate appearing on behalf of the petitioner has by way of
affidavit of Sunilbhai Dhirubhai Patel dated 20/01/2010 declared
before the Court and before the respondent-Corporation that the
petitioner does not claim any ownership and/or occupation and/or
possession over Unit Nos. 1 to 78, the particulars of which are at
Annexure A to the petition, except Unit Nos. 9 and 67, and it
will be open for the respondent-Corporation to recover the tax from
the said persons by selling and/or by auctioning the said property
for recovering the amount of municipal tax due and payable to the
respondent-Corporation. It is submitted by Shri Navin Pahwa, learned
advocate appearing on behalf of the petitioner that so far as the
property owned and occupied by the petitioner is concerned, the
petitioner has already paid the amount of municipal tax and other
taxes due and payable to the respondent-Corporation. It is further
submitted by Shri Navin Pahwa, learned advocate appearing on behalf
of the petitioner that with respect to Unit Nos. 1 to 78 and/or any
other Units until they are sold by proper documents, liability to pay
the municipal tax/other tax on the said Units is of the petitioner
and if there is any liability to pay the municipal tax/other taxes on
the said Units before the petitioner sold them, the petitioner shall
clear the same within a period of four weeks from today.
5. Shri
R.M. Chhaya, learned advocate appearing on behalf of the
respondent-Corporation has submitted that in view of the further
affidavit filed by the petitioner today and the statement of Shri
Navin Pahwa, learned advocate appearing on behalf of the petitioner,
recorded hereinabove, the respondent-Corporation cannot have any
objection to consider the revised development plan submitted by the
petitioner with respect to the first floor of the property in
question and on clearing and/or making the payment of the municipal
tax and other taxes due and payable by the petitioner as stated
hereinabove, the respondent-Corporation shall process and consider
the revised plan submitted by the petitioner for the first floor in
accordance with law on its own merits at the earliest.
6. In
view of the above and the further affidavit filed by the petitioner
dated 20/01/2010 today, on payment of the entire municipal tax and
other taxes due and payable to the respondent-Corporation by the
petitioner for the property owned and occupied by it as on today and
on payment of municipal taxes and other taxes due and payable to the
respondent-Corporation with respect to other Units that is due and
payable till the petitioner was the owner of the industrial sheds, to
be made within a period of four weeks from today, the
respondent-Corporation to process and consider the revised
development plan submitted by the petitioner for first floor in
accordance with law on its own merits within a period of eight weeks
from today and communicate the outcome of the same to the petitioner.
In view of the affidavit filed by the petitioner today, it will
always be open for the respondent-Corporation to recover the amount
of municipal tax and/or other taxes due and payable with respect to
industrial sheds, the reference of which is made at Annexure A to
the affidavit filed today, except Unit Nos. 9 and 67, from the
concerned persons (for the period after the petitioner has sold the
said industrial sheds) in accordance with law on its own merits.
7. With
this, the present Special Civil Application is disposed of.
Direct
service is permitted.
CIVIL
APPLICATION No. 5537/2009
In
view of the order passed in Special Civil Application No. 10404/2008,
no order in the Civil Application.
(M.R.
SHAH, J.)
siji
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