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SCA/8730/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8730 of 2008
=========================================================
PATEL
NATHABHAI HIRABHAI & 5 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
YN RAVANI for
Petitioner(s) : 1
- 6.
MR
SATYAM CHHAYA, AGP for
Respondent(s) : 1,
None
for Respondent(s) : 2,
MR
UTKARSH B JANI for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 11/07/2008
ORAL
ORDER
Heard
learned advocate Shri Y.N.Ravani for the petitioners, learned AGP
Shri Satyam Chhaya for State on advance copy and learned advocate
Shri Jani for respondent No.3 on caveat.
Petitioners
have challenged an order dated 9.6.08 passed by the Secretary
(Appeals), Revenue Department by which the Authority refused to grant
interim injunction in favour of the petitioners pending revision
application filed by the petitioners. By the revision application,
the petitioners have challenged the order passed by the Collector on
15.1.08 directing removal of unauthorized construction put up by the
petitioners.
Between
the petitioners and respondent No.3, there was civil litigation which
ultimately resulted in this court deciding second appeal. The
District Court in the order dated 9.11.02 passed in Regular Civil
Appeal No.27 and 57 of 2001, in terms found that the petitioners had
encroached the land which was otherwise provided for road to the
extent of 10 feet. These findings were upheld by this Court in
Second Appeal No.13 and 14 of 2002 by a common order dated 1.2.2006.
Ultimately, respondent No.3 therefore, moved the Collector for
removal of the encroachment and the Collector on 15.1.08 so
directed. Secretary (Appeals) refused to grant stay against the said
order.
Learned
advocate Shri Ravani even after conceding the above factual position
stated that the District Court had also left the scope for the
petitioners open to approach the Collector if so desired for seeking
regularization of the construction. However, admittedly so far, no
such application has been filed.
Under
the circumstances, learned advocate for the petitioners seeks
permission to withdraw the revision application of the petitioners
filed before the Secretary. In that view of the matter, he also does
not press this petition reserving liberty to approach the Collector
for seeking regularization of the construction.
In
view of the above, without going into the merits of the matter, the
petitioners are permitted to withdraw the revision application filed
before the Secretary (Appeals). Legality of the impugned order,
therefore, is not required to be decided in this petition.
The
petitioners may approach the Collector within two weeks from today by
filing proper application/representation for regularization or
revision of their plans. If such application is made within two
weeks from today, the authority shall decide the same expeditiously
and preferably within a period of three months from the date of
receipt of such application. If respondent No.3 raises any written
objections, the same shall also be considered before taking any final
decision. If the petitioners file the representation within the
time permitted and also files an undertaking that ultimately if the
decision of the Collector, subject to their right to appeal, is
adverse to them, they shall remove the encroachment themselves, till
the Collector decides their application, status quo as on today will
be maintained with respect to the construction by both the sides.
With
the above observations and directions, the petition is disposed of.
Direct
service is permitted.
(Akil Kureshi, J.)
(vjn)
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