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SCA/7603/2010 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7603 of 2010
=========================================================
HARSHAD
KANTIBHAI SAVALIYA & 2 - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPORATION THRO' MUNICIPAL COMMISSIONER & 3 -
Respondent(s)
=========================================================
Appearance
:
MR
MB GANDHI WITH
MR CHINMAY M GANDHI for Petitioner(s) : 1 - 3.
NOTICE SERVED BY DS
for Respondent(s) : 1 - 3, 3.2.2,3.2.3
MR ABHISHEK MEHTA FOR M/S
TRIVEDI & GUPTA for Respondent(s) : 1,
MR RR MARSHAL WITH RD
DAVE for Respondent(s) : 2,
None for Respondent(s) : 3,
MR
HEMANG M SHAH for Respondent(s) : 3.2.1, 3.2.2,3.2.3 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/08/2010
C.A.V.
ORDER
By
way of this petition under Article 226 of the Constitution of India,
the petitioners have prayed the following reliefs in para 12:-
(a) This
Hon’ble Court may be pleased to issue a writ of mandamus and/or any
other appropriate writ, order or direction in the nature of mandamus
against the respondents directing them to seal the plot and the
respondent authorities be directed to go to the site and stop the
construction and to lodge appropriate complaint against the
respondent Nos.3 & 4 for carrying out illegal construction and
further the authorities be directed to put the security at the site
at the costs of the respondent Nos.3 & 3 and not to allow anybody
to enter into the land and to put up further illegal construction at
the site.
(aa) This
Hon’ble Court be pleased to direct the respondent No.2 – AUDA to
handover the possession of the 22 ft. wide land to the present
petitioners who are the owners of Plot No.H/6/10, H/6/11 and
H/6/13.
(aaa) By
appropriate writ, order of direction, this Hon’ble Court be pleased
to declare that the land which is on the site only 12 ft. as per the
wire fencing is illegal and as prayed for in the petition 22 ft. wide
open land be handed over to the present petitioners.
(b) By
appropriate writ, order or direction, this Hon’ble Court be pleased
to direct the respondent Nos.1 & 2 to place before th Hon’ble
Court whether any plans are approved or not and if not then how such
illegal construction is carried out why no action are taken inspite
of the complaint being made by the petitioners and for the same
appropriate directions be also issued by this Hon’ble Court.
(c) Pending
admission, hearing and/or final disposal of this petition, this
Hon’ble Court be pleased to direct the respondent Nos.1 & 2 to
to immediately visit Final
Plot Nos.201 and 202 and to see that with the help of security
and police force the illegal construction is stopped and the
property is sealed from all the corners.
(d) Such
other and further relief as this Hon’ble Court may deem just, fit and
expedient be granted in favour of the petitioners.
(e) Costs
of this petition be provided for to the petitioner.
At
the outset, it is required to be noted that at the relevant time
when the petition was filed it was the case on behalf of the
petitioners
that respondent Nos.3 and 4 are putting up the construction on the
land in question illegally and without obtaining Development
Permission and without getting the Plans sanctioned and also on
number of other grounds. After the notice of the petition was
served upon the respondents, the respondent Nos.3 and 4 came out
with a case that they have obtained Development Permission / Revised
Development Permission from Ahmedabad Urban Development Authority
by Development Permission
dtd.3/7/2010 and
the Ahmedabad Urban Development Authority and the
Ahmedabad
Urban Development Authority sanctioned the Revised
Development
Plans submitted by the respondent Nos.3/1 to 3/3 submitted vide
application dtd.8/3/2010.
Considering
the fact that the land in question, for which Development
Permission was granted by the Ahmedabad Urban Development Authority
and the Revised Development Plans were sanctioned on
3/7/2010, are not within the local limits and jurisdiction of the
Ahmedabad
Urban Development Authority but are within the local limits and
jurisdiction of Ahmedabad Municipal Corporation, the question arose
with respect to jurisdiction and authority of the Ahmedabad Urban
Development Authority to sanction the Development
Plans and Development
Permission
with respect to the lands which are not within the local
limits and jurisdiction of the Ahmedabad
Urban Development Authority but within the local
limits and jurisdiction of the Ahmedabad
Municipal Corporation and therefore, the question arose with respect
to legality and validity of sanctioning of such Development Plans
and granting of Development Permission with respect to land in
question by Ahmedabad
Urban Development Authority, more particularly
considering the Notification issued by the Ahmedabad
Urban Housing and Urban Development, State of Gujarat dtd.14/2/2006
and the order passed by the Urban Housing and Urban Development
Department, dtd.14/12/2006, by which, with respect to lands which
are included in the local limits and jurisdiction for the
Corporation, powers under sections 27 to 39 and 49 of the Town
Planning and Urban Development Act, are required to be exercised by
the Ahmedabad
Municipal Corporation only and not by the Ahmedabad
Urban Development Authority.
However,
before the aforesaid could be considered, suddenly and surprisingly
the petitioners field Additional Affidavit, affirmed by the
petitioner No.2 with a request to permit the petitioners to
withdraw the present petition, by submitting that the grievance
voiced in the present petition does not survive. In para 3 of the
said Affidavit dtd.2/8/2010, the petitioners also requested to
relieve their advocates Mr.M.B. Gandhi and Mr.C.M. Gandhi, from the
present proceedings, as they are discharged from the responsibility
of this matter.
When
Mr.M.B. Gandhi and Mr.C.M. Gandhi, learned advocates
appeared on behalf of the petitioners, they requested to permit the
petitioners to withdraw the present petition unconditionally,
however, in light of para 3 of the Additional Affidavit dtd.2/8/2010
when the petitioners discharged and relieved Mr.M.B. Gandhi and
Mr.C.M. Gandhi, as their advocates, they have no authority to
appear on behalf of the petitioners as advocate of the petitioners
and therefore, the petitioners were directed to remain present and
make a request or they may withdraw para 3 of the Additional
Affidavit dtd.2/8/2010.
In
response to the above, petitioner No.2 has personally
appeared in the Court and has requested to permit the petitioners to
withdraw the present petition as the grievance of the petitioners
voiced in the present petition does not survive.
In
view of the above, it appears that for some oblique and extraneous
reasons, the petitioners are now requesting to permit the
petitioners to withdraw the present petition, more particularly
when this Court was/is seriously considering the legality and
validity of the Development
Plans and Development Permission dtd.3/7/2010 by the Ahmedabad Urban
Development Authority
with respect to the lands which are not within the local limits and
jurisdiction of the Ahmedabad Urban Development Authority but
which are within the local limits and jurisdiction of the Ahmedabad
Municipal Corporation. Be that it may. As the
petitioners are requesting that they may be permitted to withdraw
the present petition unconditionally, this Court has no other
alternative but to permit the petitioners to withdraw the present
petition.
In
view of the above, petitioners are permitted to withdraw the present
petition and the present petition is dismissed as withdrawn.
However, while permitting the petitioners to withdraw it is
specifically observed that this Court has not expressed any opinion
on merits with respect to legality and validity of the sanction of
the Development
Plans and grant of Development Permission on 3/7/2010 by the
Ahmedabad Urban Development Authority with respect to lands in
question which are admittedly within the local limits and
jurisdiction of the Ahmedabad Municipal Corporation and
not within the Ahmedabad
Urban Development Authority, as though this Court was seriously
considering the aforesaid question, in the meantime, the petitioners
requested to permit
them to withdraw this petition. However, it is observed and made it
clear that by permitting the petitioners to withdraw the present
petition it may not be construed by anybody this Court has exercised
any opinion with respect to legality and validity of the sanctioning
of the Development Plans and grant of Development Permission by the
Ahmedabad Urban Development Authority on 3/7/2010 with respect to
the lands in question, which is admittedly within the local limits
and jurisdiction of the Ahmedabad Municipal Corporation
and/or it may not be construed that this Court has expressed any
opinion on merits with respect to the powers and authority of the
Ahmedabad
Urban Development Authority to grant Development
Permission and/or to sanction the Development Plans
with respect to the land which are included in the local limits and
jurisdiction of the Ahmedabad
Municipal Corporation pursuant to the Notification
dtd.14/2/2006 and this Court has not decided any of the aforesaid
questions and all the aforesaid questions are kept open.
With
these present petition is dismissed as withdrawn, which cost, which
is quantified at Rs.10,000=00 (Rupees Ten Thousand only) to be paid
by the petitioners, as it appears that the petitioners
have grossly abused and misused the process of Court and have tried
to settle their personal score, and as the petitioners initially
proceeded further with the matter very seriously and fought tooth
and nail and thereafter for the reasons best known to the
petitioners, the petitioners are withdrawing the present petition.
The aforesaid amount of cost to be deposited by the petitioners
within a period of two weeks from today and on such deposit, the
Registry is directed to transmit the same to the Gujarat High Court
Legal Services Committee. Notice is discharged. Interim relief
granted earlier, if any, stands vacated forthwith.
[M.R.
SHAH, J.]
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