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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Tusharbhai Harjibhai Ghelani - Appellants
Vs.
State of Gujarat - Respondent
R/Special Civil Application No. 494 of 2015
Decided On : 07-12-2018
Indian Penal Code – Section 65 – Constitution of India – Article 226 – Applicants prayed writ of mandamus or writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside order passed by District Collector, and be further pleased to declare that NA permission deemed to granted in respect of land bearing Revenue Survey to issue writ of mandamus or writ of certiorari or any other appropriate writ, Pending admission, hearing and final disposal of this petition, your Lordship may be pleased to direct District Collector, to reconsider application of petitioners Permission in respect of land bearing revenue survey for residential purpose, to pass such other and further orders as may be expedient and necessary in circumstances of case –Held, Order of status quo would mean that the writ applicants shall not change or alter the nature, character and possession of the property in question. The Order of status quo cannot be legal impediment so far as grant of N.A. Permission is concerned, in future, if any further injunction is granted by Civil Court in suit filed by respondents 3 to 17, if order of status quo passed by Civil Court is affirmed by Court in appeal from order, then writ applicants will not be in position to develop land, however, that does not mean that they cannot pray for permission to put land for nonagricultural use, collector should reconsider its decision in light of decision of Court in case of Bhayabhai and also keeping in mind order passed by Court in Appeal with Civil Application – Petition succeeds. (Para 47, 48, 49)
Facts of the case:
Applicants prayed writ of mandamus or writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside order passed by District Collector, and be further pleased to declare that NA permission deemed to granted in respect of land bearing Revenue Survey to issue writ of mandamus or writ of certiorari or any other appropriate writ, Pending admission, hearing and final disposal of this petition, your Lordship may be pleased to direct District Collector, to reconsider application of petitioners Permission in respect of land bearing revenue survey for residential purpose, to pass such other and further orders as may be expedient and necessary in circumstances of case
Findings of the court:
Order of status quo would mean that the writ applicants shall not change or alter the nature, character and possession of the property in question. The Order of status quo cannot be legal impediment so far as grant of N.A. Permission is concerned, in future, if any further injunction is granted by Civil Court in suit filed by respondents 3 to 17, if order of status quo passed by Civil Court is affirmed by Court in appeal from order, then writ applicants will not be in position to develop land, however, that does not mean that they cannot pray for permission to put land for nonagricultural use, collector should reconsider its decision in light of decision of Court in case of Bhayabhai and also keeping in mind order passed by Court in Appeal with Civil Application
Result: Petition succeeds.
JUDGMENT :
J.B. Pardiwala, J.
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;
(B) to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction, directing the Collector to accept the charges for NA permission for residential purpose in respect of the land bearing Revenue Survey No. 29, Final Plot No. 93 admeasuring 8060 sq. mtrs, situated in the sim of village Rundh, Surat.
(C) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to direct the District Collector, Surat to reconsider the application of the petitioners dated 25.06.2014 for N.A. Permission in respect of land bearing revenue survey No. 29, Final Plot No. 93, admeasuring 860 sq. mtrs. situated in the sim of village Rundh, Surat for residential purpose;
(D) to pass such other and further orders as may be expedient and necessary in the circumstances of the case."
2. The case of the writ applicants, in their own words, as pleaded in the writ application, is as under;
3.2 The names of the petitioners were also reflected in the extract of village form No. 7/12 and 8A. Hereto annexed and marked as ANNEXURE-D (Colly) are the copies of the extract of village form No. 7/12 and 8A.
3.3 Petitioners state and submit that by government notification dated 14.2.2006 village Rundh was included in Surat Municipal Corporation and accordingly, revenue entry No. 1396 was mutated and certified on 26.12.2006. Hereto annexed and marked as ANNEXURE-E is the copy of revenue entry No. 1396.
3.4 Petitioners state and submit that the land is included in Surat Urban Development Authority and as per the certificate dated 08.02.2013 issued by the authority, land Revenue Survey No. 28 and 29 came into the residential zone. Hereto annexed and marked as ANNEXURE-F is the copy of certificate dated 08.02.2013 along with the map. That as per the draft Town Planning Scheme, SUDA No. 29 (Rundh-Vesu-Magdalla) for the old plot No. 29 the Final Plot No. 93 admeasuring 8060 has been allotted. Hereto annexed and marked as ANNEXURE-G is the copy of re distribution statement.
3.5 Petitioners state and submit that the land in question is originally owned by one Bhaniben D/o. Somabhai Nimabhai and Mangiben D/o. Somabhai Nimabhai. They have purchased the land by Regd. sale deed dated 29.5.1950 thereafter names of their husband have been entered. That it is alleged that the said Bhaniben and Mangiben have executed power of attorney in favour of one Natwarlal B. Patel and not by all four persons. That as such the said power of attorney was cancelled by the original owners. But, subsequently the said power of attorney holder has executed sale deed in favour of Prathmesh Farms Pvt. Ltd. and other 14
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