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SCA/2371/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2371 of 2011
=========================================================
ASHOKBHAI
P RANA & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT & 15 - Respondent(s)
=========================================================
Appearance
:
MS.
KRUTI M SHAH for Petitioner(s) : 1 - 3.
GOVERNMENT PLEADER for
Respondent(s) : 1,
None for Respondent(s) : 2 -
16.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/02/2011
ORAL
ORDER
By
way of this petition under Article 226 of the Constitution of
India, the petitioners have prayed for appropriate writ, order
and/or direction, quashing and setting aside the impugned order
dtd.15/2/2011 passed by the appellate authority i.e. Officer on
Special Duty and Joint Secretary, Urban Housing and Urban
Development Department, Gandhinagar, in Appeal No.22 of 2010 in
dismissing the same and confirming the order passed by the
Collector, Valsad in Case No.MUN/TP/Case/1 of 2010 dtd.15/10/2010.
Facts
leading to the present petition, in nutshell are as under:-
That
a development permission was granted to the private respondents on
21/4/2010 by the Valsad Nagar Palika, which according to the
petitioners was on the basis of illegal resolution and mainly on
the ground that the said development permission was granted on the
basis of Circular Resolution and it was not even placed before the
Town Planning Committee.
That
the petitioners challenged the said Resolution / Development
Permission before the District Collector, Valsad under sec.6(B) of
the Gujarat Town Planning and Urban Development Act, on the ground
that by permitting the private respondents to put up construction,
the property of the petitioners is likely to be damaged. That the
Collector, Valsad by order dtd.15/10/2010 partly allowed the said
appeal and directed the respondent No.2 – Madhav Co-operative
Housing Society Limited to restore and/or to compensate the
repairing towards the house of the petitioners, which is damaged due
to the construction being carried out by the respondent No.2. Being
aggrieved by and dissatisfied with the order passed by the District
Collector, Valsad dtd.15/10/2010 petitioners preferred further
appeal before the State Government under sec.6(B)(4) of the Gujarat
Town Planning Act, which was numbered as Town Planning Appeal No.22
of 2010.
It
appears that in the meantime, the Collector also directed to place
the Resolution granting Development Permission in favour of the
private respondents for approval before the Town Planning Committee
and to consider whether to approve the Development Permission No.422
or not and the Town Planning Committee passed resolution No.6
dtd.9/12/2010 approving Development Permission No.422 granting
development permission in favour of the private respondents.
That
thereafter, the aforesaid Town Planning Appeal No.22 of 2010 came to
be finally heard by the appellate authority, which was earlier
passed by the Collector, Valsad dtd.15/10/2010 and the appellate
authority dismissed the said appeal, however, by observing that if
the petitioners are still still aggrieved by the Resolution
dtd.9/12/2010, of the Town Planning Committee, the same can be
challenged before the appropriate forum by way of appeal and by
further observing that if there is any damage caused to the
petitioners by the construction on the land bearing City Survey
No.1965 being carried out by the respondent No.2 – Madhav
Co-operative Housing Society Limited, it will be open for the
petitioners to initiate appropriate proceedings to compensate the
same after proving the damage/loss caused to the petitioners. Being
aggrieved by and dissatisfied with the order passed by the Officer
on Special Duty & Joint Secretary, Urban Housing and Urban
Development Department – appellate authority under
section 6(B)(4) of the Town Planning Act, dtd.15/2/2011, the
petitioners have preferred the present Special Civil Application
under Article 226 / 227 of the Constitution of India.
At
the outset, it is required to be noted that it is the case on
behalf of the petitioners that by granting development permission
and permitting the private respondents to put up the construction,
the property of the petitioners has been damaged and the
petitioners have sustained loss and therefore, the development
permission granted in favour of the private respondents is required
to be quashed and set aside. It appears that the case on behalf of
the petitioners was that Development Permission No.422 was granted
in favour of the private respondents on the basis of illegal
resolution as the same was not granted by the Circular Resolution
and Resolution of Town Planning Committee was not passed. It
appears that thereafter the question with respect to granting
Development Permission No.422 was placed before the Town Planning
Committee and subsequently by Resolution No.6 dtd.9/12/2010 the same
has been confirmed while dismissing the appeal by the appellate
authority – State Government. It is specifically observed
that if the petitioners are aggrieved by the said resolution of
the Town Planning Committee dtd.9/12/2010, it will be open for the
petitioners to challenge the same.
Considering
the above, when it was pointed out to the learned advocate appearing
on behalf of the petitioners that petitioners can challenge the
said resolution before the appropriate authority / forum, till this
Court started dictating the order, the learned advocate appearing on
behalf of the petitioners did not inform the Court that as such the
said resolution dtd.9/12/2010 is already challenged by some other
residents of the very society before the Collector, Valsad and only
at the time when the Court started dictating the order to the
aforesaid, the learned advocate appearing on behalf of the
petitioners informed the Court that the said resolution
dtd.9/12/2010 is already challenged by some other persons. Be that
it may, as observed by the appellate authority, the petitioners may
challenge the same before the appropriate authority / forum and may
join as party in the appeal preferred by the other persons.
Now,
so far as the contention on behalf of the petitioners that by
granting development permission and permitting the private
respondents to put up the construction, property of the petitioners
is likely to be damaged and petitioners are likely to cause loss
and therefore, development permission is required to be quashed and
set aside is concerned, as such on the aforesaid ground, development
permission cannot be quashed and set aside.
It
is to be noted that the petitioners have failed to produce any
document and/or evidence to show/prove the extent of damage / loss
caused to them. Still a liberty is reserved in favour of the
petitioners to initiate appropriate proceedings for getting
compensation for the damage caused to the petitioners, on proving
damage/loss. It is also observed by the authority that as such so
far as the petitioners are concerned, they are not concerned with
other properties except respondent No.2 – Madhav Co-operative
Housing Society Limited granting Development Permission with respect
to City Survey No.1965 and the petitioners are not concerned with
other properties covered under the development permission No.422.
Considering
the overall facts and circumstances of the case, it cannot be said
that the appellate authority has committed any error and/or
illegality in passing the impugned order. As such, liberty is
reserved in favour of the petitioners to challenge the subsequent
resolution dtd.9/12/2010 and/or to initiate appropriate proceedings
and pray for compensation on proving loss/damage to their property
and therefore, even otherwise, the interest of the petitioners is
sufficiently protected.
In
view of the above, there is no substance in the present petition,
which deserves to be dismissed and is accordingly dismissed.
[M.R.
SHAH, J.]
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