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AO/36/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 36 of 2008
With
CIVIL
APPLICATION No. 8159 of 2008
In
APPEAL
FROM ORDER No. 36 of 2008
=========================================================
FATEH
MOHMAD ROSHANBHAI SHAIKH - Appellant(s)
Versus
KHATOONBIBI
MOHMAD YASIN RANGREJ & 2 - Respondent(s)
=========================================================
Appearance :
MR
YATIN SONI for Appellant(s) : 1,
None for
Respondent(s) : 1, 3,
MR CB DASTOOR for Respondent(s) : 1.2.1,
1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8,1.2.9
- for
Respondent(s) : 0.0.0
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/07/2008
ORAL
ORDER
1. Present
appeal is filed by the appellant ? original defendant No.2
challenging the order dated 08.10.2007 passed by the learned
Auxiliary Chamber Judge, Court Court No.10, City Civil Court,
Ahmedabad below Exh.6 and Exh.7 in Civil Suit No.5038 of 2001.
2. It
appears from the record that earlier in a Suit filed by the
respondent -original plaintiff against the appellant ? original
defendant No.2, an order came to be passed on 07.10.2003 by the
learned Auxi. Chamber Judge, City Civil Court, Ahmedabad, partly
allowing the Notice of Motion and directed original defendant No.2 ?
Corporation to demolish the illegal construction made by original
defendant No.2. Said order came to be challenged by the appellant
being Appeal from Order No.388 of 2003 before this Court and it was
submitted by the learned Advocate appearing on behalf of the
appellant that without prejudice to the rights and contentions of the
parties in the Suit, the appellant will approach the Corporation for
regularization of the illegal construction within 15 days and the
Corporation may decide the matter in accordance with law and
accordingly said Appeal from Order came to be disposed of by order
dated 26.12.2003. It appears that thereafter, the appellant ?
original defendant No.2 submitted application before the Ahmedabad
Municipal Corporation for regularization of the construction on
payment of impact fees. However, same came to be rejected by the
Ahmedabad Municipal Corporation vide order / communication
dated 11.05.2006. Therefore, original plaintiff moved application in
the pending Suit for an appropriate order directing the Corporation
to act as per the earlier order passed below Exh.6 and Exh.7 ?
Notice of Motion and the learned Judge passed the impugned order.
Being aggrieved and dissatisfied with the said order, the appellant
has preferred present Appeal from Order.
3. Mr.Yatin
Soni, learned Advocate appearing on behalf of the appellant has
vehemently submitted that in fact impact fees has been paid by the
appellant and provisional certificate was issued by the Corporation,
therefore, learned Judge ought not to have passed the impugned order.
It is submitted that the Corporation has not accepted and has
rejected the application of the appellant, as revised plans for
regularization is not signed by the original owner. It is submitted
that the original owner of the property has transferred the property
and subsequent purchaser has not consented. It is submitted that even
subsequent thereto representation has been made which is still
pending before the Corporation. Therefore, it is requested to allow
present Appeal from Order.
4. As
stated above, earlier against the order passed below Notice of
Motion, the appellant preferred Appeal from Order before this Court
and same came to be disposed of on the submission made by the learned
Advocate of the appellant that he would move appropriate application
before the Corporation for regularization. It is not in dispute that
thereafter, vide communication / order dated 11.05.2006, the
Corporation has rejected the said application for regularization.
Said order passed by the Corporation has not been challenged.
5. Under
the circumstances, when the Corporation has passed an order
rejecting the application of the appellant for regularization and
same is not challenged and merely because some representation has
been made and impugned order has been passed considering the fact
that there is illegal construction, it cannot be said that the
learned trial Court has committed any error.
6. Under
the circumstances, present Appeal from Order deserves dismissal and
accordingly it is dismissed. In view of the disposal of the Appeal
from Order, no order in Civil Application.
[M.R.Shah,J.]
satish
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