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SCA/10871/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10871 of
2009
======================================
NISHANT
SHOPS AND CO OPERATIVEHOUSING SOCIEITES LTD - Petitioner
Versus
STATE
OF GUJARAT & 7 - Respondents
======================================
Appearance :
MR
BD KARIA for the Petitioner.
NOTICE SERVED BY DS for Respondent(s)
: 1 - 7,7.2.2 - 8,8.2.2
HL PATEL ADVOCATES for Respondent(s) : 2
- 5.
MR ADIL R MIRZA for Respondent(s) : 6,
MR HM PARIKH for
Respondent(s) : 7,7.2.1
MR RASESH H PARIKH for Respondent(s) :
7,7.2.1
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/01/2010
ORAL
ORDER
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for an appropriate writ, order and/or
direction, directing the respondent authorities to demolish alleged
illegal construction of compound wall made by respondent No.7 in the
common margin area of Final Plot No.39, Town Planning Scheme No.18
between Block-D of the petitioner society and Block-C of the
respondent No.7 society forthwith.
2. In
response to the Notice issued by this Court, Mr.V.H.Patel, learned
advocate has appeared on behalf of respondent No.4 and
affidavit-in-reply is filed on behalf of respondent No.4, especially
in Para Nos.4, 5, 6 and 7, it is stated as under:
4. At the outset, I
say that under the provisions of sec.12(2)(m) and sec.13(2)(c) of
Gujarat Town Planning and Urban Development Act,1976, the Ahmedabad
Urban Development Authority has framed General Development Control
Regulations (For short ‘GDCR’).
5. Regulation 13.5 of the
Chapter 13 viz. Compound Walls and Gates of GDCR reads as
under:
No partition wall shall
be allowed anywhere in the margin of the building unit.
Provided that a partition
wall up to 1.5 mts. Height shall be permitted on common boundary of
semi detached building and marginal distance between two structures.
6. I say that in the
building in question, there are two blocks i.e. C & D, on final
plot No.39, TP Scheme No.18 (Ghatlodia) and there is a compound wall
in the margin space between block C & D which is otherwise not
approved as per the layout plan and therefore show cause notice is
u/s 260(1) of BPMC Act are
issued to the concerned persons. Herein annexed as Annexure R1 is the
copy of the said notice.
7. I further say that in
view of the provisions of Reg.27.3 of GDCR, no relaxation can be
given in Reg.12.4.1(A)(iv) of GDCR with respect to margins to be
maintained in High Rise buildings.
Under
the circumstances and considering the affidavit-in-reply, it appears
that now the respondent-Corporation has already issued the Show Cause
Notice dated 27/10/2007 upon respondent No.7 as well as upon the
petitioner and concerned persons were required to submit written
reply on 5/11/2007.
3.
Mr.H.M.Parikh, learned advocate appearing on behalf of respondent
No.7 has submitted that though respondent No.7 has replied to the
said Show Cause Notice, still the respondent No.7 is desirous to give
detailed reply to the said Show Cause Notice and the same shall be
replied by respondent No.7 within a period of 10 days from today.
4. Mr.Bhargav
Karia, learned advocate appearing on behalf of the petitioner has
submitted that so far as the petitioner is concerned, the petitioner
has already submitted reply in response to the Show Cause Notice
dated 27/10/2007.
5. In
view of the above, when now the respondent Municipal Corporation has
already issued Show Cause Notice upon respondent No.7 in exercise of
power under Section 260(1) of the BPMC Act, let the Municipal
Corporation take final decision on the same in accordance with law
and on merits at the earliest. Let respondent No.7 submit detailed
reply to the Show Cause Notice dated 27/10/2007 to the appropriate
authority within a period of 10 days from today and on receipt of the
same, respondent Corporation is hereby directed to take final
decision and take appropriate decision in accordance with law and on
merits within a period of four weeks thereafter, after considering
the reply, that may be filed by respondent No.7 within the
stipulated period as stated hereinabove. Any lapse on the part of the
respondent-Corporation shall be viewed very seriously. With this,
the present petition is disposed of at this stage. Notice is
discharged.
Direct
service is permitted.
[M.R.SHAH,J]
*dipti
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