Maheshchandra Nirnajanbhai ... vs State Of Gujarat
2021 Latest Caselaw 3267 Guj

           C/SCA/6712/2016                                            ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6712 of 2016

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           MAHESHCHANDRA NIRNAJANBHAI JOSHI & 5 other(s)
                            Versus
                  STATE OF GUJARAT & 3 other(s)
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Appearance:
MR VIJAY H NANGESH(3981) for the Petitioner(s) No. 1,2,3,4,5,6
MR KM ANTANI, AGP for the Respondent(s) No. 1
MR HRIDAY BUCH(2372) for the Respondent(s) No. 4
MRS KRISHNA G RAWAL(1315) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 25/02/2021

                                    ORAL ORDER

1. Heard learned advocate Mr. Vijay Nangesh for the petitioners, learned advocate Mr. Nishant Lalakhiya for learned advocate Mr. Hriday Buch for respondent no.4 and learned Assistant Government Pleader Mr. K.M. Antani for the respondent­State through video conference.

2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :

"(A) Your Lordships be pleased admit and allow this petition;

(B) Your Lordships be pleased to issue a writ or any other appropriate writ, order or direction, commanding respondents to take prompt action in

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accordance with law against illegal construction bring made by respondent no.4 in the interest of justice;

(C) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction or commanding to respondents to consider the representation made by the petitioner on 9.2.16 and 9.3.16, 21­03­2016(Annx­A) in the interest of justice;

(D) Pending, admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondent no.4 from further construction in the interest of justice;

(E) Your Lordships may be pleased to grant at interim relief in terms of para 7(D).

(G) Your Lordships may be pleased to pass such other and further order as may be deemed fit in the interest of justice."

3. Brief facts of the case are as under :

3.1) The petitioners are the members of Tulsi Park Society which consists of 60 plots. It is the case of the the petitioners that the petitioners are residing adjacent to the plot of respondent no.4, being Survey No. 292/A/1 which is residential premises wherein illegal construction work is going on without any sanction from respondent no.3.

3.2) It is the case of the petitioners that permission was granted by the Collector on 24.7.1995 to use Survey No.292/A/1 and 292/2 for residential use only. It is the case of the

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petitioners that despite such permission from the Collector, respondent no.4 was making illegal construction of commercial premises and therefore, the petitionerS made representations dated 9.2.2016 and 9.3.2016 to the respondent authorities raising the grievance against such illegal construction. The petitioners also made application dated 9.3.2016 to the Chief Officer of the RTI, Dhandhuka requesting information regarding FSI Plan and permission granted by the authorities for constructing commercial complex to respondent no.4. The petitioners made yet another representation on 21.3.2016 raising their objections against the illegal construction put up by respondent no.4.

3.3) Being aggrieved by the inaction on part of the respondent authorities to redress the grievances of the petitioners, the petitioners have preferred the present petition with the aforesaid prayers.

4. Learned advocate Mr. Vijay Nangesh for the petitioners submitted that respondent no.4 has made illegal construction without any permission and therefore, the respondent authorities ought to have stopped such illegal construction and the representations made by the petitioner ought to have been considered. It was therefore, submitted that the respondent authorities be directed to take appropriate action in

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accordance with law against the illegal construction made by the respondent no.4.

5. Learned advocate Mr. Nishant Lalakhiya appearing for learned advocate Mr. Hriday Buch on the other hand submitted that respondent no.4 has not made any illegal construction. The construction made by respondent no.4 is after obtaining necessary sanction of plans from the competent authority i.e. the Town Planning Officer, Ahmedabad. Mr. Lalakhiya relied upon the following averments made in the affidavit in reply filed on behalf of respondent no. 4 :

"3. The answering respondents purchased plot bearing Survey No.292A/1 paiki 5 admeasuring about 1140.75 sq. mtrs. The same shall be herein after referred to as 'the plot in question' and/or 'the disputed plot' for brevity and convenience. The plot in question came to be purchased by the answering respondents by a registered sale deed on 23.6.2015. On and from the said date, the answering respondent became owner of the plot in question.

4. The plot in question was already converted to non­agricultural use. However, the answering respondent wanted to develop for commercial and residential purposes instead of purely residential purpose and therefore, the application for revised non­agricultural use was made on 22.2.2016. The competent authority i.e. Deputy Collector, Dhandhuka, vide order dated 4.4.2016 allowed the said application by imposing various conditions. A copy of the said order dated 4.4.2016 is annexed hereto and marked as Annexure­I to this affidavit in reply.

5. In the meanwhile, the answering respondent

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had already applied for development permission before the Town Planning Officer, Ahmedabad on 28.10.2015. By an order dated 23.2.2016, the Town Planning Officer, Ahmedabad allowed the said application and granted to the answering respondent to develop the plot and put up construction for commercial plus residential use. A copy of the said permission is annexed hereto and marked as Annexure­II to this affidavit in reply.

6. The answering respondent had also made an application with the municipality to grant permission to put up construction under section 155(1) of the Gujarat Municipalities Act. Such an application was given on 17.2.2016. the said application remained pending with the municipality. In the meanwhile, as the aforesaid permission to put up the construction was sanctioned by the Town Planning Officer, the answering respondent commenced the construction. Therefore, the petitioners started making grievances with various authorities, though there was no illegality committed by the answering respondent. As such the inquiries were made pursuant to the said complaint. The Technical Assistant of the Construction Division of Dhandhuka Municipality visited the site. On 13.4.2016, he made a report that the answering respondents have not encroached upon the approach road to the Society of the petitioners and that the construction is put up by keeping the margin of 3 mtrs. Further, the answering respondents have not encroached upon either the road or any part of the society of the petitioners. Therefore, he gave no objection to the permission sought by the answering respondents. A copy of the said report dated 23.4.2016 is annexed hereto and marked as Annexure­III to this affidavit in reply.

7. Thereafter, in a meeting of the Town Planning committee of the Municipality on 18.4.2016, the application of the answering respondents came up for consideration. The said Committee discussed that the construction has

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commenced without permission of the municipality and therefore, the fine is imposed upon the answering respondents. However, the permission to put up construction has been accorded. A copy of Resolution No.3 passed by the Town Planning Committee of Dhanduka Municipality is annexed hereto and marked as Annexure­IV to this affidavit in reply.

8. I submit that in view of the fact and circumstances of the case, there is no illegality committed by the answering respondents in putting up construction which necessitates exercise of powers under Article 226 of the Constitution. In any case, such a petition is not maintainable on the ground of locus standi of the petitioners. This Hon'ble Court in judgment rendered in the case of Ashraf Abu Akar Ansari vs. Commissioner & Ors., vide oral judgment dated 13.2.2012 passed ins Civil Application No. 1570 of 2012, has specifically held that persons like present petitioners would not be 'a person aggrieved' to maintain a petition under Article 226 of the Constitution. Further, the Division Bench of this Hon'ble Court in Letters Patent Appeal No. 47 of 2012 has come to such a conclusion that a petition under Article 226 of the Constitution is not maintainable even if some alleged encroachment and/or illegal construction is made and the dispute between private parties cannot be decided in the writ petition. Thus even on this ground the present petition may not be entertained and may kindly be dismissed."

6. Referring to the aforesaid averments, it was submitted that there is no illegality in the construction put up by respondent no.4 and therefore, the grievance of the petitioners is without any basis.

7. Having     heard         the     learned       advocates        for       the





             C/SCA/6712/2016                                                    ORDER

respective parties and having gone through the materials on record, more particularly, in view of order dated 23.2.2016 passed by the Town Planning Officer, it is apparent that necessary permission was granted to respondent no.4, as the Town Planning Officer by the said order sanctioned the revised lay out plan for the purpose of commercial and residential units to be constructed by respondent no.4 on various terms and conditions.

8. In view of above undisputed facts, grievances raised in this petition are redressed and therefore, the petition would not survive. The petition is accordingly disposed of. Notice is discharged.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR