SCA/1007720/2002 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10077 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL MANUBHAI KHODIDAS & 3 - Petitioner(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance : MR JS YADAV for Petitioner(s) : 1 - 4. MS MS SHAH,AGP for Respondent(s) : 1 - 2. RULE SERVED BY DS for Respondent(s) : 3, 5, MR PRAKASH K JANI for Respondent(s) : 4, MR NK MAJMUDAR for Respondent(s) : 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 02/12/2008 ORAL JUDGMENT 1. The petitioners have challenged order dated 2.7.2002 passed by the Collector, Mehsana as SCA/1007720/2002 2/5 JUDGMENT well as order dated 9.9.2002 passed by respondent No.1 herein. 2. Shortly stated the facts leading to the presnt petition are that : 2.1 The petitioners were granted permission by Mehsana Urban Development Authority for development of a plot of land belonging to them subject to certain terms and conditions by order dated 21.12.2001. 2.2 Respondent No.6 Laxminarayan society which has its plot adjacent to the plot of the petitioners approached the Collector challenging the order passed by the Mehsana Urban Development Authority. The Collector vide his impugned order dated 2.7.2002 quashed the permission granted by the Authority upon which the petitioner approached respondent No.1 who also dismissed the appeal by order dated 9.9.2002. Both these orders are under challenge in the present petition. 3. It is stated that substantial portion of the construction was already completed under the permission granted by Mehsana Urban Development Authority before the Collector interfered with the same. My attention was drawn to an order dated 11.2.2003 by which Learned Single Judge of this Court suspended the operation of two SCA/1007720/2002 3/5 JUDGMENT impugned orders. Of-course, it was clarified that the construction put up by the petitioners shall be at their risk and subject to the outcome of the petition. 4. Learned advocate Shri Yadav for the petitioners stated that by that time entire construction was over and there are number of occupants of different units constructed by the petitioners. 5. Learned advocate Shri Suthar for respondent No.6 submitted that the petitioners had put up unauthorised and illegal construction to rules and regulations. 6. Considering the facts and circumstances of the case and particularly, when construction was at an advanced stage when the Collector and thereafter, respondent No.1 sought to intervene and that thereafter under the interim order of the Court same is protected, I do not find it appropriate that such construction be demolished in toto, even if there were some defects in carrying out such construction at the relevant time. However, this is not to suggest that if the existing construction is either impermissible or not according to the building regulations or is such that it cannot be regularised, same must stand. 7. In view of the above discussions, the petition SCA/1007720/2002 4/5 JUDGMENT is disposed of by giving following directions : 1) The petitioners shall present before the Collector, Mehsana detailed drawing of the construction carried out, duly certified by a qualified engineer/architect within four weeks from today. 2) Upon such materials being presented before the Collector, he shall have the existing construction verified for the purpose of ascertaining as to what extent the same can be regularised even after charging premium if any. 3) To enable the collector to come to such a conclusion, it would also be open for respondent No.6 to present its representation which shall be done within four weeks from today. 4) Once the above exercise is completed, it will be open for the Collector to take steps for removing the construction if any, which cannot be regularised. 8. The above directions are issued on the premise that the plot in question is not of the ownership of respondent No.6 society and that therefore, their objections cannot travel beyond ensuring that the construction is according to rules. However, if respondent No.6 has any other remedy under law to establish that plot in SCA/1007720/2002 5/5 JUDGMENT question is that of ownership of the society, this order is not meant to take away any such remedy. 9. With above directions, the petition is disposed of. Rule made absolute to the above extent. (Akil Kureshi,J.) (raghu)