Gujarat High Court Case Information System
Print
SCA/13047/2008 3/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13047 of 2008
=========================================================
LATI
GRAM PANCHAYAT - Petitioner(s)
Versus
BHARATIYA
AIRTEL LIMITED & 2 - Respondent(s)
=========================================================
Appearance :
MR
HRIDAY BUCH for Petitioner(s) : 1,
None for
Respondent(s) : 1 - 3.
MR CHINTAN S POPAT for Respondent(s) :
3.2.1,3.2.2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 22/10/2008
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India,
the petitioner ? original plaintiff has prayed for an appropriate
Writ, direction or order quashing and setting aside the impugned
judgment and order dated 26.09.2008 passed by the learned Additional
District Judge and Presiding Officer, Fast Track Court No.2, Veraval
in Civil Misc.Appeal No.14 of 2007, in allowing the same by quashing
and setting aside the order passed by the learned Trial Court below
Exh.5 in Regular Civil Suit No.94 of 2007.
2. The
petitioner herein ? original plaintiff had instituted Regular Civil
Suit No.94 of 2007 against the respondents herein restraining them
from constructing / installing mobile tower sought to be put on the
land owned by respondent No.3 herein. In the said Suit, the
petitioner ? plaintiff submitted application Exh.5 for interim
injunction. It was the contention on behalf of the petitioner ?
plaintiff that the land in question was to be used only for
residential purpose and mobile tower cannot be constructed on the
said land. It was contended on behalf of the petitioner that before
putting up construction, no permission of the Panchayat as
contemplated under Section 104(1) of the Gujarat Panchayat Act
(herein after referred to as ‘the Act’) has been
obtained. Learned Principal Senior Civil Judge, Veraval vide
order dated 15.05.2007 allowed application Exh.5 and restrained the
respondents herein by way of injunction from putting up construction
of mobile tower on the land in question. Being aggrieved and
dissatisfied with the order passed by the learned Trial Court passed
below application Exh.5, respondent No.3 herein ? original
defendant No.3 preferred Civil Misc.Appeal No.14 of 2007 and the
learned Additional District Judge and Presiding Officer, Fast Track
Court No.2, Veraval by impugned judgment and order dated 26.09.2008
allowed the said appeal by quashing and setting aside the order
passed by the learned Trial Court below application Exh.5. Hence, the
petitioner herein ? plaintiff has preferred present Special Civil
Application under Article 227 of the Constitution of India.
3. Mr.Hriday
Buch, learned Advocate appearing on behalf of the petitioner ?
plaintiff has fairly conceded that in view of the order dated
17.01.2007 passed by the learned Single Judge of this Court in
Special Civil Application No.25355 of 2006 the contention on behalf
of the petitioner ? plaintiff that on residential complex / land
meant for residential purpose, mobile tower cannot be constructed
will not survive. It is submitted that only ground which is required
to be considered is with respect to permission under Section 104(1)
of the Act. On the other hand, learned Advocates appearing on behalf
of the respondents have submitted that in fact necessary permission
as required has been obtained vide Rajachiti dated 20.04.2006
as well as development permission dated 24.10.2006 produced at Mark
17/2. It is also further submitted by the learned Advocates
appearing on behalf of the respondents that initially Sarpanch of the
petitioner ? Panchayat who is now objecting approached respondent
Nos.1 and 2 for construction of mobile tower on his land and as the
said deal was not materialized, with a mala-fide intention the
Suit has been filed. It is submitted that considering Rajachiti and
development permission, permission to put up construction of mobile
towner is obtained and when the learned Appellate Court has allowed
the appeal by quashing and setting aside the order passed by the
learned Trial Court below Exh.5, same may not be interfered with by
this Court under Article 227 of the Constitution of India.
4. Mr.Buch,
learned Advocate for the petitioner has submitted that so far as
Rajachiti and Development permission relied upon by the respondents
dated 20.04.2006 and 24.10.2006 are concerned, same cannot be said to
be permission granted under Section 104(1) of the Act. It is
submitted that under Section 104(1) of the Act, permission is to be
obtained from concerned Panchayat and Rajachiti and Development
permission relied upon by the respondents cannot be said to be by the
Panchayat but the same is by Sarpanch and therefore, it cannot be
said that the respondents have obtained permission of Panchayat as
contemplated under Section 104(1) of the Act.
5. Mr.Ashish
Dagli, learned Advocate and Mr.Shalin Mehta, learned Advocate for the
respondents have submitted that until and unless Rajachiti and
Development permission are challenged and/or quashed and set aside by
the competent authority, same is in existence and valid and
therefore, the petitioner unilaterally cannot decide said Rajachiti
and Development permission as illegal. Mr.Buch, learned Advocate for
the petitioner has submitted that aforesaid Rajachiti and Development
permission are not in accordance with law and same are not required
to be challenged by the petitioner as same can be said to by nullity.
6. Heard
the learned Advocates appearing on behalf of the respective parties.
7. As
stated above, only ground which is required to be considered by this
Court now is whether the respondents have obtained permission for
putting up Mobile tower on the land of respondent No.3 or not. The
respondents have relied upon Rajachiti and Development permission
dated 20.04.2006 and 24.10.2006 at Mark ? 17/2 and same is by
Sarpach, Gram Panchayat, Lati and same is on the letter pad of Lati
Gram Panchayat. It is the contention on behalf of the petitioner
Panchayat now through subsequent Sarpanch that aforesaid Rajachiti
and Development permission cannot be said to in accordance with law
and provision of the Act as same are not by the Panchayat and are by
the Sarpach of Lati Gram Panchayat is concerned, it is to be noted
that aforesaid Rajachiti and Development permission are not
challenged before the competent authority. Unless and until said
Rajachiti and Development permission are challenged before the
competent authority and are set aside by the competent authority, the
petitioner cannot ignore the said Rajachiti and Development
permission. As on today said Rajachiti and Development permission are
in existence. Under the circumstances, it cannot be said that the
respondents are putting up mobile tower on the land of respondent
No.3 without obtaining any permission. The learned Appellate Court
has rightly allowed the appeal by quashing and setting aside the
order passed by the learned Trial Court below Exh.5 by which the
learned Trial Court had restrained the respondents herein from
putting up construction of mobile tower. No illegality has been
committed by the learned Appellate Court which calls for interference
of this Court in exercise of powers under Article 227 of the
Constitution of India. Under the circumstances, there is no substance
in the present Special Civil Application, which deserves to be
dismissed and is accordingly dismissed.
[M.R.Shah,J.]
satish
Top