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2022 DIGILAW 1569 (GUJ)

SHITALBHAI JAYANTIBHAI PATEL v. STATE OF GUJARAT

2022-11-14

ASHUTOSH J.SHASTRI

body2022
ORDER : 1. Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following relief: “(A) Be pleased to admit/allow this Petition. (B) Be pleased to quash and set aside Impugned Orders dated 11.09.2015 passed by the competent authority under GRUDA i.e. the Respondent No. 4 (Annexure “A”) and further be pleased to direct the respondent herein to regularize the construction/change of use etc. of the petitioners (Shop-Properties in question) by charging the necessary amount of Impact Fees. OR Be pleased to direct the respondent no 1 herein to arrange the hearing of the Appeal No. 6810/2015 and 1268 to 1271/2015 (Annexure “F”) and further be pleased to direct the Appellate Officer concerned to hear and decide the Appeals of the present petitioners (Annexure “F”) in accordance with law within stipulated time as may deem fit by this Hon’ble Court. (C) Be pleased to grant such other and further relief/s that may be deemed fit and proper in the facts and circumstances of the case.” 2. The case of the petitioners is that petitioners are having shops Nos. 1 to 6 of their ownership at Madhav Kunj Society, R.S. No. 67, TP No. 25, FP No. 39-A at Singanpore, Causeway Road, Surat. Over the said portion of land, petitioners are carrying on their business since very long time and these shops are the only source of livelihood to sustain their families. On 18.2.2013 petitioner Nos.1,2,4 and 5 and on 24.7.2013 petitioner No. 3 made applications under Section 12 of the GRUDA, 2011 to complainant authority for seeking regularization of construction/change of use qua their respective shops. The competent authority vide communication dated 5.2.2014 intimated that since the petitioners had not produced NOC of society or its members, their applications cannot be considered and as such, upon receipt of said communication, on 6.2.2014, petitioners have submitted reply and also produced NOC dated 25.1.2005 duly signed of members of Madhav Kunj society in favour of builder wherein it was stated that they will have no right whatsoever so far as 25% space of COP is concerned and have no objection in case of construction, sale, administration, etc. qua the land in question. qua the land in question. The members of the society had also executed said NOC with an understanding that at the time of purchasing the plot in the society, they shall have no right whatsoever in 25% space of COP. 3. It is further case of the petitioners that vide communication dated 12.2.2014, respondent No. 4 had intimated the petitioners that petitioners will have to produce NOC duly signed by the members of Madhav Kunj society within a period of 5 days for the purpose of regularization of construction/change of use, failing which seals will be applied to all the shops and accordingly, same having not been complied, seals have been applied to two shops out of six shops on 3.3.2014 and other shop owners, four in numbers, were asked to vacate their shops, failing which seals will be applied to their shops also. Feeling aggrieved by and dissatisfied with the communication dated 12.2.2014, petitioners preferred appeals before the Appellate Authority under the provisions of GRUDA on 26.3.2014 and said appeals came to be rejected vide order dated 9.6.2015 considering the same as premature. 4. It is the further case of the petitioners that subsequently, without taking into consideration the NOC/agreement dated 25.1.2005, respondent Corporation had rejected the application preferred by the petitioners under the provisions of GRUDA vide impugned order dated 11.9.2015 and feeling aggrieved by the said order, petitioners have preferred appeals on 7.10.2015, being Appeal Nos.6810 of 2015, 1268 of 2015, 1269 of 2015, 1270 of 2015 and 1271 of 2015 before the Appellate Authority. Said appeals according to the petitioners are pending for decision since 7.10.2015 and till the date of filing of the petition, no decision was taken by the Appellate Authority. Since 2 years had been elapsed, vide communication dated 28.8.2017, request was made by the petitioners to grant personal hearing and decide their appeals which are pending since long, but no response has been received by any of the petitioners from the Appellate Authority. 5. Subsequently, on 1.4.2017, respondent No. 1 had appointed one Shri Anupam Anand (IAS), Secretary, Woman and Child Development Department as Appellate Authority for Saurashtra Region and South Gujarat Region. 5. Subsequently, on 1.4.2017, respondent No. 1 had appointed one Shri Anupam Anand (IAS), Secretary, Woman and Child Development Department as Appellate Authority for Saurashtra Region and South Gujarat Region. The appeals filed by the petitioners being of South Gujarat region, will fall under the jurisdiction of said officer and so far Surat district is concerned, hearing be convened twice in a month and to the best of knowledge of the petitioners, Appellate Authority qua South Gujarat region has not conducted single hearing of any of the appeals and since about one year, appeals filed by the petitioners have not been taken up for hearing and as such, since the appeals were not probably being heard by the Appellate Authority, petitioners have invoked the extraordinary jurisdiction of this Court by way of filing the present petition for challenging the original order dated 11.9.2015 passed by respondent No. 4 and also sought an alternative relief as contained in Para 8(B). 6. When the petition is taken up for hearing today, learned advocate Mr. M.J. Mehta for the petitioners has submitted that he is having no information about the appeals which are pending before the Appellate Authority whether any decision is taken or not and as such, since the original order is already seized with the Appellate Authority, he has fairly requested the Court to issue appropriate direction to the Appellate Authority to take appropriate decision on the pending appeals if so far not decided and as such the main relief with regard to challenging the order dated 11.9.2015 in view of the same at present is not pressed. 7. As against this, learned Assistant Government Pleader appearing on behalf of respondent No. 2 Appellate Authority has submitted that if such appeals which are stated to have been filed against the original order dated 11.9.2015 if so far not decided, appropriate direction be issued upon the authority which would be complied with and as such requested the Court not to express any opinion on merits with regard to any of the contention raised in the appeals. 8. 8. Having heard learned advocates appearing for the parties and having gone through the material on record, it appears that order dated 11.9.2015 is the subject matter of aforesaid pending appeals and the appeals whether have been decided or not are not forthcoming and as such, in the interest of justice, instead of examining the merits of the case and in view of the fact that challenge to the original order dated 11.9.2015 is not at present pressed by learned advocate in view of the pendnecy of the appeals, the Court without expressing any opinion on merit, as not called upon, is inclined to dispose of the present petition on the following lines which would meet the ends of justice: ORDER: (1) Appeal Nos. 6810 of 2015, 1268 of 2015, 1269 of 2015, 1270 of 2015 and 1271 of 2015 filed by respective petitioners, if so far not decided by the Appellate Authority, i.e. respondent No. 2 herein shall be taken up expeditiously for its examination and adjudication and same shall be decided in accordance with law on the basis of the material available on record as early as possible, preferably within SIX WEEKS from the date of receipt of writ of this Court. (2) Since the Court is not called upon and alternative relief is pressed by learned advocate for the petitioners, the Court has refrained itself from expressing any opinion on merit with regard to any of the contentions reflecting in the memo of petition. (3) It is made clear that respondent No. 2 shall independently decide the pending appeals in accordance with law on the basis of the material available on record and after due compliance of the principles of natural justice. (4) Since the appeals are stated to be pending since 2015, it is expected that time schedule prescribed by the present order be maintained for taking appropriate decision. 9. With the aforesaid observations, present petition stands DISPOSED OF.