Pashupatinath Salt And Allied ... vs The Gandhidham Development ...
2023 Latest Caselaw 77 Guj

     C/LPA/1053/2022                         JUDGMENT DATED: 04/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 1053 of 2022
                                    In
        R/SPECIAL CIVIL APPLICATION NO. 13255 of 2022
                                  With
         CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                                    In
          R/LETTERS PATENT APPEAL NO. 1053 of 2022
=============================================
          PASHUPATINATH SALT AND ALLIED INDUSTRIES
                                 Versus
           THE GANDHIDHAM DEVELOPMENT AUTHORITY
=============================================
Appearance:
MR AKSHAT C VIN(10740) for the Appellant(s) No. 1
MR CJ VIN(978) for the Appellant(s) No. 1
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
=============================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                            and
           HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 04/01/2023

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

1. Present appeal under clause 15 of the Letters Patent is

filed against the oral judgment dated 19.07.2022 passed by

the learned Single Judge in Special Civil Application No.

13255 of 2022.

2. The brief background of facts are that present

appellant - original petitioner in Special Civil Application

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No. 13255 of 2022 is engaged in the activity of desalinating

sea water and extracting salt and is carrying allied

activities. The appellant was granted land bearing Traverse

Survey No. 155/1 paiki admeasuring 18000 sq.mtrs., at

Village Kidana, Taluka Gandhidham, District : Kutch and the

allotment was made pursuant to order dated 29.07.2008.

Such grant has also been mutated in the revenue records in

favour of the appellant and by drawing panchnama, physical

possession of the land was also entrusted to the appellant

by Circle Officer on 22.08.2008. Pursuant to such allotment,

plans were got approved and within the prescribed time,

construction as per the plan was also made. Having verified

the said fact of construction and compliance of stipulations

attached thereof with the competent authority, even had

issued completion certificate on 20.10.2009, and this entire

fact has been mutated even in the revenue records.

2.1. It is the case of the appellant that opponent no. 1 then

issued a show cause notice on 15.07.2010 and

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

simultaneously issued an order of demolition on 09.08.2010,

alleging that construction made by the appellant was not

legal nor in consonance with the permission granted and

when the present appellant did not comply with the said

order of demolition, a reference was made being Reference

No. 62 of 2011 in view of Section 12(1) of Gandhidham

(Development and Control on Erection of Buildings) Act,

1957 (hereinafter referred to as the "Act"). The said

reference was prepared and presented on 04.05.2011 by

opponent no. 1 before Principal District Judge, Kutch-Bhuj.

The said reference was for constitution of Board of Appeal

in view of Section 19 of the Act and having received the

notice thereof, appellant filed his detailed reply on

25.05.2022. By objecting against such reference supportive

documents having been attached by the appellant along

with reply to contest the reference and it was specifically

contended that detailed mandatory procedure prescribed

under Section 11 of the Act is to be observed which having

not been done, reference deserves to be dismissed.

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

2.2. It is the case of the appellant that, Board of Appeal

then existing disposed of the reference by issuing certain

directions by relying upon concession made by the

appellant and without examining the merit. In fact,

appellant has not made any concession of whatsoever

nature at any stage of hearing. In fact, appellant had

contested the reference by filing exhaustive reply and

attached all documents, but still the Board of Appeal,

disposed of the reference vide order dated 04.06.2022, as a

result of which, the present appellant approached this

Court by way of Special Civil Application No. 13255 of

2022.

2.3. The learned Single Judge upon hearing the parties has

dismissed the petition by order dated 19.07.2022 and it is

this order passed by the learned Single Judge which is

made the subject matter of present Letters Patent Appeal

before us.

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

3. Initially, after hearing the learned advocate appearing

for the appellant, this Court issued notice and considering

the contentions and stand taken by respondent, this Court

granted interim relief in terms of paragraph 8 (C) in Civil

Application 1 of 2022 and same is extracted here-under for

immediate reference.

1. Heard Mr.C.J.Vin, learned counsel appearing for the appellant.

2. Issue Notice returnable by 25.08.2022.

3. The learned Single Judge while dismissing the Special Civil Application has observed that Special Civil Application No.12820 of 2022 which was filed challenging the order dated 04.06.2022 was withdrawn by the petitioner which prima facie is erroneous inasmuch as the appellant herein was not the petitioner in Special Civil Application No.12820 of 2022 and neither he was a party to the said proceedings.

4. It is submitted by Mr.Vin, learned counsel appearing for the appellant that the appellant herein was not a party in Special Civil Application No.12820 of 2022 and no concession was made in the said Special Civil Application which came to be disposed of vide order dated 13.07.2022. He would also submit that even in the order which came to be passed by the second respondent herein on 04.06.2022, no statement was made by the present appellant. However, learned Single Judge seems to have been swayed by the concession made by another party to the same proceedings as a ground for not entertaining the petition.

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

5. Hence, we are of the considered view that the interim prayer sought for in paragraph 8(C) in Civil Application No.1 of 2022 deserves to be granted and accordingly, ad- interim order as prayed for in paragraph 8(C) is hereby granted.

6. Relist this matter on 25.08.2022. Direct service is permitted."

4. Mr. C.J. Vin, learned advocate appearing for the appellant

has vehemently contended that the order passed by the learned

Single Judge is not in consonance with the record and the stand

taken by the appellant. In fact, according to Mr. Vin, learned

advocate, the learned Single Judge while passing the order

impugned has observed that Special Civil Application No. 12820

of 2022 was filed challenging the order dated 04.06.2022, which

was withdrawn by the petitioner, but in fact, the present

appellant was not the petitioner in the said petition i.e. Special

Civil Application No. 12820 of 2022 and the appellant was not

even a party to the said petition and as such, giving of

concession does not arise. Mr. Vin has further submitted that

even when the order was passed by the authority on 04.06.2022,

no statement was made nor any concession was made by the

appellant. However, the learned Single Judge appears to have

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

been carried away by the observations made by respondent no.

2 and as such, according to learned advocate Mr. Vin, there

appears to be a clear error in exercising discretion by the

learned Single Judge. In fact, a reference which has been made

in paragraph 5 is not by the appellant, nor the appellant was a

party to the said proceedings and as such, by projecting such

stand, a request is made to set aside the impugned order passed

by the learned Single Judge.

4.1. Additionally it is submitted that permissions have been

granted and construction has been put up in consonance with

the stipulations and there appears to be no irregularity of any

nature which would have permitted the authority to ignore

while disposing of the reference. On the contrary, the

owners/occupiers were permitted to submit lay-out and

building plans, approved by the authorized engineer as can be

seen from the order dated 04.06.2022, reflecting on page 47

and as such, to give concession is out of place. Learned

advocate Mr. Vin has categorically submitted an additional

affidavit pointing out that one Surya Salt Private Ltd., had filed

Special Civil Application 12820 of 2022, which has nothing to do

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with the present appellant and to justify that, a case status

report of said Special Civil Application was produced along with

said additional affidavit. The cause of action in both the

petitions are stated to be altogether different and the

proceedings before opponent no. 2 was relating to two different

properties and there is no similarity in both the said petitions

and as such, learned advocate Mr. Vin has contended that

learned Single Judge ought not to have disposed of his petition

by relying upon the said petition i.e. Special Civil Application

12802 of 2022. Hence, learned advocate Mr. Vin has requested

this Court to set aside the impugned order and seek for

restoration of Special Civil Application 13255 of 2022 to its file

for adjudication on merits.

5. Pursuant to the notice having been issued, Mr. Nikhilesh J.

Shah, learned advocate appeared on behalf of the respondents

and has fairly conceded to the said submissions of learned

advocate Mr. Vin and has made no submissions on merits and

left it to the discretion of the Court. Learned advocate Mr. Shah

has not even chosen to oppose the petition by filing any

appropriate reply and as such, the stand of the appellant has

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

remained uncontroverted. It is in this background, both the

learned advocates have requested the Court to dispose of the

present Letters Patent Appeal.

6. Having heard the learned advocates appearing for the

respective parties and having gone through the stand taken by

the appellant in the context of the relevant record produced

before us, we may observe hereunder :

6.1. Perusal of the order passed by the learned Single Judge

as indicated in paragraph 5 and 6, to a substantial extent

reliance is placed on disposal of petition being Special Civil

Application 12820 of 2022 for disposing of Special Civil

Application 13255 of 2022 and it has been observed that the

present appellant who is the owner and occupier of Survey No.

155/1, cannot challenge the order after giving concession before

the Board. It has been observed that by keeping faith on the

statement made before the Board, observations were made

permitting the owners/applicants to submit the lay-out and

building plans approved by the authorized engineer on or before

30.06.2022, which the present appellant was supposed to

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

comply and it is in this background, petition filed by present

appellant came to be disposed of.

6.1. In view of this, when categorical statement is made by

learned advocate Mr. Vin that there was no concession given by

the present appellant, nor the appellant is connected with the

said petition i.e. Special Civil Application 12820 of 2022 and has

submitted that appellant has no concern with disposal of said

petition, we are unable to understand as to how concession so

given would be binding on present appellant who had filed

Special Civil Application 13255 of 2022. To verify the said

aspect, we have perused the case status of said Special Civil

Application 12820 of 2022 and the same appears to have been

filed by one Surya Salt Private Limited which petition, came to

be withdrawn by the concerned learned advocate and the

present appellant appears to be not a party to the said petition.

6.2. In addition to this, we have also perused the additional

affidavit filed by present appellant and noted the contents of it

in which also, a categorical stand has been taken by the present

appellant that appellant has nothing to do with said petition and

C/LPA/1053/2022 JUDGMENT DATED: 04/01/2023

both petitions are standing on different situation, parties are

different and cause of action of both the petitions are also

different and different properties were the subject matter of

both petitions even before opponent no. 2 as well and there is

absolutely no similarity except the date and content in the order

passed by opponent no.2. The said assertion made on oath are

contained in paragraphs 4, 5 and 6 and we deem it proper to

incorporate hereunder :-

"4.Surya Salt Private Limited was aggrieved by order dated 04.06.2022 passed by opponent no. 2 in Board Reference No. 39 of 2011 and challenged it by way of Special Civil Application No. 12820 of 2022. The petitioner opted to withdraw Special Civil Application No. 12820 of 2022. Accordingly, the learned Lawyer withdrew Special Civil Application No. 12820 of 2022 upon instruction of the petitioner. Copy of order dated 13.07.2022 passed by learned Single Judge in Special Civil Application No. 12820 of 2022 is produced herewith and is marked as Annexure- 'AA-5' to this additional affidavit. Case status of Special Civil Application No. 12820 of 2022 is produced herewith and is marked as Annexure-'AA-6' to this additional affidavit.

5. I say with great respect that I have not given any concession or consent for submission to the jurisdiction of opponent no. 1 as is observed by the opponent No. 2 in its order dated 04.06.2022. I adhere to my contest against the exercise undertaken by opponent no. 1 as well as decision of opponent no. 2 as well as the order of learned Single Judge.

6. It may be observed from the case status of both the

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petitions that petitioners are different, Board References bear different number and filed against different parties. Causes of action in both the petitions are different. Proceedings before opponent no. 2 related to two different properties. I say with great respect that there is no similarity in Special Civil Application No. 13255 of 2022 filed by appellant and Special Civil Application No. 12820 of 2022 filed by Surya Salt Private Limited, except the date and content in the order dated 04.06.2022 of opponent no. 2."

6.3. Based upon the aforesaid stand taken by learned advocate

for the appellant, even from the beginning i.e. when we passed

an order on 04.08.2022, it was a clear assertion that no

concession was made by the present appellant before opponent

no. 2 and even during the course of reference. On the contrary

reference was opposed by the present appellant filing detailed

reply along with attached documents. Hence, when that be so,

the assertion ought to have been examined by the learned

Single Judge in its true perspective and disposal of the petition

filed by the appellant on the basis of concession made in

different petition, as stated above is an error, which requires to

be corrected.

6.4 At this stage, we may clearly point out that pursuant to the

notice having been issued, learned advocate Mr. Nikhilesh Shah

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appeared on behalf of respondent authorities and today, when

the matter is taken up, learned advocate has fairly submitted

the stand taken by the appellant about dissimilarity of both

petitions appears to be just and as such, without offering much

resistance, he has left it to the discretion of the Court. Hence,

we are of the view that assertion made by the appellant has

remained uncontroverted, and as such, we deem it proper to

correct the error that has crept in the order under challenge.

Hence, without expressing any opinion on merits of the main

matter, we deem it proper to pass the following

: ORDER:

      (i)      Letters Patent Appeal is allowed.


      (ii)     The impugned order dated 19.07.2022 passed by the

learned Single Judge in Special Civil Application 13255 of 2022 is set aside the and as a consequence thereof, Special Civil Application is ordered to be restored to file with a request to the learned Single Judge to dispose of the same on merits and in accordance with law as expeditiously as possible.

(iii) Since petition is restored to its file, whatever,

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interim order granted earlier shall continue till the hearing of main petition on merits or till it is vacated or varied whichever is earlier.

(iv) We make it clear that we have not expressed any opinion on merits and same shall be examined independently and in accordance with law.

(v) Pending applications if any, stands consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) phalguni