Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 143

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, J.
Ahmedabad East Infrastructure LLP & other - Appellant
Versus
Collector And District Magistrate, Gandhinagar & others - Respondent
R/SPECIAL CIVIL APPLICATION NO. 883 of 2020 With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020, CIVIL APPLICATION (DIRECTION) NO. 1 of 2021
Decided on : 24-02-2021

Advocates:
Advocate Appeared:
For the Appellant : MR S.N. SOPARKAR, MR GAURAV MATHUR & ABHISHEK SHAH
For the Respondent: MR SP HASURKAR, MR RONAK RAVAL, adv

Point of Law: Section 10(d) there are two mandatory requirements; (1) Telegraph Authority shall do as little damage as possible; and (2) to pay full compensation to all persons interested for the damage sustained by them by the reasons of the exercise of those powers.

Headnote:
Constitution of India,1950 - Article 226, 348(1) and (3) - Gujarat Town Planning and Urban Development Act, 1976 - Section 29(1) - Regulations for Residential Townships, 2009 - Regulation 7 - Business of development of townships - Remove tower foundation and towers - Liability Partnership firm - Right to Information Act - Indian Electricity Rules, 1956 - Rule 80(1) and 82 Indian Telegraph Act, 1885 - Sections 10 to 16 - Electricity Act, 2003 Section 164 - Petitioner No.1 is a Limited Liability Partnership firm, incorporated and registered under provisions of Limited Liability Partnership Act, 2008 - Petitioner No.1 is engaged in business of development of townships - Petitioner No.2 is a partner of petitioner No.1 - Order to promote construction of new and modern living spaces, considering growing needs of society and in public interest, Government of Gujarat issued Regulations, 2009 under Act, 1976 It is stated that petitioner No.1, in terms of regulation No.7 of aforesaid Regulations, applied for permission to develop a township situated in village in name of Arvind Uplands under Section 29(1)(ii) of Act of 1976 to Government of Gujarat.
Finding of the Court: This Court cannot go into aspect whether alternate route is available or not and whether respondent No.3 should change route or not - However, it is pertinent to note at this stage that though permission was granted to petitioners to construct township in year 2012 and as per the terms and conditions of the order passed by Government of Gujarat, petitioners are required to construct ESWS houses in 5% of land, till filing of the petition in year 2020 i.e. for last 7 years, it is an admitted fact that petitioners have not constructed said houses - In view of aforesaid facts and circumstances of present case, this Court is of view that petitioners are not entitled to claim the relief/s, as prayed for in the present petition - It is pertinent to note at this stage that though the permission was granted to the petitioners to construct the township in the year 2012 and as per the terms and conditions of the order passed by the Government of Gujarat, petitioners are required to construct ESWS houses in 5% of the land, till filing of the petition in the year 2020 i.e. for last 7 years, it is an admitted fact that petitioners have not constructed the said houses.
Result: Petition is dismissed.

ORDER :

1. In this petition, which is filed under Article 226 of the Constitution of India, the petitioners have prayed that the order dated 05.05.2015 passed by respondent No.1 - Collector and District Magistrate, Gandhinagar, be quashed and set aside and it is also prayed that the respondent No.3 - Gujarat Energy Transmission Corporation Ltd. (GETCO for short) be directed to forthwith remove the tower foundation and towers putup in Survey No.27 of village Nasmed, Taluka Kalol, District Gandhiangar.

2. Heard learned Senior Advocate Mr. S.N.Soparkar assisted by learned advocate Mr.Gaurav Mathur for Singhi & Co. for the petitioners, learned Assistant Government Pleader Mr. Ronak Raval for respondent Nos. 1 and 2 and learned advocate Mr. S.P.Hasurkar for the respondent No.3.

3. The factual matrix of the present case is as under:

3.1. It is stated that petitioner No.1 is a Limited Liability Partnership firm, incorporated and registered under the provisions of the Limited Liability Partnership Act, 2008. The petitioner No.1 is engaged in the business of development of townships. The petitioner No.2 is a partner of petitioner No.1.

3.2. It is stated that in order to promote construction of new and modern living spaces, considering the growing needs of the society and in public interest, the Government of Gujarat issued Regulations for Residential Townships, 2009 ('the Regulations' for short) under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the 'Act of 1976'). It is stated that petitioner No.1, in terms of regulation No.7 of the aforesaid Regulations, applied for permission to develop a township situated in village Nasmed, Taluka Kalol, District Gandhinagar, in the name of Arvind Uplands under Section 29(1)(ii) of the Act of 1976 to the Government of Gujarat. The Government of Gujarat, vide order dated 29.09.2012, directed Ahmedabad Urban Development Authority to grant inprinciple permission under Section 29(1) of the Act of 1976 in accordance with the provisions and conditions contained in Schedule appended to the said Order. It is stated that as per the conditions mentioned in the Schedule, the petitioner No.1 is bound to allot dwelling units to the Socially and Economically Weaker Section (SEWS for short).

3.3. It is further stated that pursuant to the permission granted by the State Government, the petitioner No.1 has undertaken the development of the township, which is spread over in area of 135 acres at village Nasmed - Adhana, Taluka Kalol, District Gandhinagar. It is stated that substantial construction of the township has been completed.

3.4. It is the case of the petitioners that SEWS housing is planned to be located at Survey/Block No.55 of village Nasmed, which forms the township. Further in survey No.27, adjacent to SEWS housing land, the petitioner No.1 has planned public garden for recreation and use by the residents.

3.5. Petitioners have further stated that Ms. Aashna Sushilbhai Agarwal (erstwhile owner), who was the owner at the relevant point of time of survey No.27, made an application for NonAgricultural use Permission with respect to 11448 sq. meters out of 14468 sq. meters of survey No.27. It is stated that the respondent No.1, vide order dated 30.04.2015, granted NA Permission on the terms and conditions stated therewith, with respect to the aforesaid land. It is the case of the petitioners that the aforesaid order was forwarded to the respondent No.3 as well as Uttar Gujarat Vij Company Ltd. (UGVCL). It is also stated that for remaining parcel of land admeasuring 3020 sq. meters of Survey No.27, erstwhile owner again made an application for NA permission which was granted by the respondent No.1 on 12.08.2015.

3.6. Now it is the case of the petitioners that they are planning to begin construction of SEWS houses and public garden in Survey No.55 and 27 respectively. Now the grievance of the petitioners is that in last week of May, 2019, the people deputed by respondent No.3 fo

Click Here to Read the rest of this document

2021 Supreme(Guj) 143

Point of Law: Section 10(d) there are two mandatory requirements; (1) Telegraph Authority shall do as little damage as possible; and (2) to pay full compensation to all persons interested for the damage sustained by them by the reasons of the exercise of those powers.

Cases Referred (3)