Gujarat High Court
Natverlal Manilal Patel vs Ahmedabad Municipal ... on 12 July, 2023
Bench: J. C. Doshi
C/LPA/832/2023 ORDER DATED: 12/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 832 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 20420 of 2018
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 832 of 2023
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NATVERLAL MANILAL PATEL
Versus
AHMEDABAD MUNICIPAL CORPORATION, AHMEDABAD
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Appearance:
KARTIKKUMAR K JOSHI(8042) for the Appellant(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/07/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr.Kartikkumar Joshi for the
appellant, learned advocate Mr.Deep Vyas for the Ahmedabad
Municipal Corporation for the respondent No.1 and learned
advocate Mr.B.J.Trivedi was also heard who represents applicant
in Civil Application No.2 of 2023, who seeks to be impleaded
himself in the present proceedings.
2. By preferring the Letters Patent Appeal under Clause 15 of
the Letters Patent, the appellant- original petitioner seeks to call
in question judgment and order dated 25.11.2022 of learned
C/LPA/832/2023 ORDER DATED: 12/07/2023
single Judge whereby with regard to the grievance raised in the
petition, in relation to the land occupied by the petitioner, the
petitioner is allowed to approach the respondent authorities by
making appropriate representation or application alongwith the
relevant material and documents.
3. The challenge in the main petition at the instance of the
petitioner was to the order dated 26.10.2017 which was a
communication issued by the Assistant Town Planning Officer of
the respondent Corporation, thereby the Corporation cancelled
the regularization certificate. According to the case of the
petitioner, the said cancellation was not in accordance with the
procedure required to be followed under the Gujarat
Regularization of Unauthorized Development Act, 2011 (GUDA)
and the Rules of 2012 framed thereunder.
3.1 It appears that the petitioner claims his rights in respect of
the land bearing survey Nos.93/(1+5), 98, 99, 102, the said
original survey numbers were subjected to framing and
implementation of the town planning scheme which is town
planning scheme No.43(Odhav-3). The aforesaid survey numbers
became original Plot No.18 in the town planning scheme to be
converted into final Plot Nos.18, 21 and 24. It further appears
from the facts on record that the occupational and possessionary
claim of the petitioner in respect of the said land is based on
agreement to sale executed by the owner of the land in favor of
the petitioner. The petitioner has stated that he is occupying the
said lands since long.
3.2 At this stage it may be noticed to be recorded that when
C/LPA/832/2023 ORDER DATED: 12/07/2023
the town planning authorities issued notice to the petitioner
under Section 68 of the Gujarat Town Planning and Urban
Development Act, 1976 seeking eviction of the petitioner from
the said land, the said notice was challenged by the petitioner
before this court by filing Special Civil Application No.14470 of
2016 and others. The group of petitions ended up with order
passed by the court in Letters Patent Appeal No.487 of 2023 and
allied appeals on 21.6.2023.
3.2.1 In the said proceedings, learned single Judge
directed the petitioner to approach the competent authority
under the town planning scheme for variation of the scheme,
however, when the said Letters Patent Appeal came up for
consideration, it was given out as recorded in para 4 of the order
dated 21.6.2022 passed in those proceedings, inter alia that the
petitioner had already approached the competent authority by
making application for variation and that the said application
having being considered by the competent authority, came to be
rejected by order dated 24.3.2023.
3.3 The very contention of the petitioner made in this
proceedings that he was lawful occupant of the land in question
was noted by the court while considering the grievance of the
petitioner that the variation proposal was rejected by the order
dated 24.3.2023. It is relevant to reproduce the observations and
directions passed in the aforesaid connected proceedings which
culminated into the proceedings of Letters Patent Appeal No.487
of 2023 culminating into the order dated 21.6.2023.
"5.1 The grievance of the petitioner in respect
C/LPA/832/2023 ORDER DATED: 12/07/2023
of the order dated 24.03.2023and against the
decision of the authority to reject the prayer for
variation could not be subject matter of debate
or adjudication in the present proceedings. It is
always open for the petitioner to file substantive
proceedings before the appropriate
Court/Forum under appropriate nomenclature.
5.2 As regards the apprehension of the
petitioner that since he was treated and
described as encroacher by learned Single
Judge, while passing the impugned order, it is
to be observed that it will be open for the
petitioner to urge in the substantive
proceedings, which may be initiated by him
against order dated 24.03.2023 that he was a
lawful occupant under the Town Planning &
Urban Development Act and is occupant and
possession was accordingly lawful based on
Agreement to Sell, as per his case.
6. This Court does not express any opinion on
the aforesaid aspect, which may be urged by the
petitioner to be considered on its own merits.
Suffice it would be to observe that it will be
open for the petitioner to raise all available
contentions including that he has lawful
occupancy of the plot and that his factory is
situated, in the separate competent
proceedings, which may be instituted by him."
4. Giving the context of the above observations and directions
in the interactive proceedings, when the court put a query to
learned advocate for the petitioner as to whether, as per the
liberty granted in the aforesaid order and observations, any
proceedings to challenge the order dated 24.3.2023, whereby
the variation request was rejected, has been instituted or not?
Responding to the said query, it was stated by learned advocate
for the petitioner that the petitioner is in process of challenging
C/LPA/832/2023 ORDER DATED: 12/07/2023
the said order.
4.1 It was submitted that the land of the petitioner was
regularized under GUDA Act, however the Corporation on its
own, cancelled the regularization. In this regard it was
submitted on behalf of the Corporation that the cancellation was
in wake of alleged misrepresentation and fraud by the petitioner.
5. In view of the above scenario obtaining, the present
Letters Patent Appeal is disposed of with following directions
and observations.
(i) The grievance of the petitioner raised in the instant petition,
dealt with by learned single Judge and now subject matter of this
Letters Patent Appeal that the procedure under the GUDA has
not been followed while rejecting the request for regularization,
is permitted to be agitated when the petitioner may file
challenge to the order dated 24.3.2023. However this court does
not express any opinion in this regard.
(ii) The remedy of appeal under Section 12 of the GUDA Act,
which is available to the petitioner, may also be availed by the
petitioner, if advised.
(iii) It will be also open for the petitioner to make representation
as per the directions of learned single Judge and avail the said
right in accordance with law.
6. Observing that either of the above course may be adopted
by the petitioner to ventilate his grievance, for otherwise, the
C/LPA/832/2023 ORDER DATED: 12/07/2023
court does not find any merit in the challenge to the order of
learned single Judge.
7. The present Letters Patent Appeal is accordingly not
entertained subject to above directions.
The Civil Application will not survive, in view of the
disposal of the appeal. Accordingly, It is disposed of.
(N.V.ANJARIA, J)
(J. C. DOSHI,J)
Manshi
