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Judgment
K.S. Jhaveri, J.—By way of this petition, the Petitioners have prayed for the following reliefs:
[A] The Hon''ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order at Annexure-H hereto; and consequently hold that the Petitioners are not required to obtain NA permission u/s 65 of the Code once they have obtained permission u/s 29 of the Act.
[B] Pending admission, hearing and final disposal of this petition, the Hon''ble Court may be pleased to stay execution, operation and implementation of the impugned order at Annexure-H hereto; and be further pleased to stay further proceedings in the case which might have been filed by the Mamlatdar, Nadiad pursuant to the impugned order:
[C] & [D] ....
The learned Counsel for the Petitioner states that the issue involved in this petition is squarely covered by the decisions of this Court in Letters Patent Appeal No. 205/1999 in Special Civil Application No. 2365/1998 dated 17.12.2003, Letters Patent Appeal No. 627/1997 in Special Civil Application No. 2264/1988 dated 24.11.1999 and in the case of Karimbhai Kalubhai Belim and Others Vs. State of Gujarat and Another, . The order dated 17.12.2003 passed by the Division Bench in Letters Patent Appeal No. 205/1999 in Special Civil Application No. 2365/1998 reads as under:
#. The Appellants have challenged the order of the learned Single Judge allowing the petition of the Respondents and setting aside the orders of the Collector and the State Government made on 5th March, 1994 and 18th February, 1998, respectively, by which demolition of thirteen shops constructed by the Respondent-Society in Survey No. 103/3 within the development area of Kapadwanj was ordered.
#. The learned Counsel appearing for the Appellants argued that the construction of thirteen shops was contrary to law, because, no permission was granted for making such construction in the portion of land in which the shops were constructed at the time when the Collector had issued order on 29.5.1995 granting permission to construct twelve residential houses in 1965 sq. mts. of land while imposing a condition that other 9418 sq. mts. should be kept open. It was submitted that as per condition No. 5 of the order dated 29.5.1965, no construction should be done on the land except by permission in writing of the Collector. Since no such permission was obtained, the order of the Collector made on 5th March, 1994 and the revisional order of the State Government confirming that order requiring the shops to be demolished were justified.
#. In the order dated 5th March, 1994 at Annexure: I to the petition, the only ground on which the shops were ordered to be demolished was that the construction was made without obtaining the permission of the Collector. That order was confirmed by the revisional authority on the same ground.
#. In respect of the agricultural land, the Collector''s permission is required when any occupant wishes to use his holding for any purpose other than the purpose indicated in Section 65(1) of the Bombay Land Revenue Code, 1879. The provision regarding permission of the Collector requires an application to be made by the occupant and the Collector may after due inquiry, either grant or refuse the permission. This is why the contention is raised that the Collector''s permission was not obtained as per the said requirement which was also reflected in the order dated 29th May, 1965 of the Collector while permission was granted in respect of 1965 sq. mts. of land.
#. In the present case, there is no dispute about the fact that the permission to construct thirteen shops was, in fact, granted by the Respondent No. 3-Area Development Authority on 20th November, 1989. This fact is mentioned in the letter dated 13.9.90 of Kapadwanj Borough Municipality which is the Area Development Authority, addressed to the Respondent-Society and there is no dispute about the same. u/s 26 of the Gujarat Town Planning & Urban Development Act, 1976, it is provided that on or after the date on which a draft development plan is published in the official gazette u/s 13 in respect of any development area, no person shall carry on any development in any building or over any land, within the limits of the said area without the permission in writing of the appropriate authority and without obtaining certificate from the appropriate authority to the effect that the development charge as leviable under the Act has been paid or that no charge is leviable. u/s 27 of the said Act, any person, not being the Central Government or the State Government, intending to carry out any development in any building or in or over any land within the limits of a development area on or after the date referred to in Section 26, shall except where such development is for any of the purposes specified in the proviso to that section, make an application in writing to the appropriate authority for permission u/s 29 for such development in the prescribed form and with the required particulars.
#. By Section 117 of the said Act, it was provided that, notwithstanding anything contained in any other law for the time being in force, when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to have unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained. The said provision which was contained in Clause (a) of Section 117 has been deleted by Act No. 2 of 1999. However, the permission for construction of these shops which was granted by the Area Development Authority on 20.11.89 during currency of the said provision was sufficient and the construction made pursuant to that permission cannot be ordered to be demolished on the ground that permission of the Collector was not obtained u/s 65 of the Bombay Land Revenue Code.
#. The impact of the provisions of Section 117 of the said Act was considered by this Court in Karimbhai Kalubhai v. State of Gujarat and Anr. reported in 1996 (1) G.L.H. 200 in which the learned Single Judge, in context of similar facts where permission was obtained u/s 29 of the Act, held that by virtue of the provisions of Section 117, the Petitioners were not required to obtain any other permission under any other law. The learned Single Judge followed the earlier unreported decisions which are referred to in para-3 of the judgment for holding that no permission under any other law including that u/s 65 of the Bombay Land Revenue Code would be necessary if development permission was obtained u/s 29 of the Act with respect to the lands in question.
#. In view of the overriding effect of the provisions of Section 117(a) of the Gujarat Town Planning & Urban Development Act, 1976 during the period that it was operating and in view of the fact that the permission was already obtained by the Respondent-Society for constructing thirteen shops in the land in question from the Area Development Authority u/s 29 of the Act, there was no need to obtain permission of the Collector for construction of thirteen shops on the land in question under the provisions of Section 65 of the Bombay Land Revenue Code or under the terms and conditions of the order dated 29.5.65. We therefore fully concur with the reasoning of the learned Single Judge given for setting aside the orders of the Collector and the State Government. The appeal is, therefore, dismissed. There shall be no order as to costs.
2.1. The order dated 24.111999 passed by the Division Bench in Letters Patent Appeal No. 627/1997 in Special Civil Application No. 2264/1988 reads as under:
This appeal, which is filed under Clause 15 of the Letters Patent, is directed against judgment dated June 28, 1996 rendered by the learned Single Judge in Special Civil Application No. 2264/88, by which order passed by the Collector, Vadodara on June 27, 1986 as confirmed in revision by the State Government vide order dated February 12, 1988 requiring the Respondents to obtain N.A. permission u/s 65 of the Bombay Land Revenue Code, is set aside.
The predecessor in title of the Respondents was regranted land by order dated January 12/23, 1964 on certain terms and conditions. The predecessor-in-title of the Respondents expired in November, 1983. The Respondents had obtained necessary building permission u/s 29 of the Gujarat Town Planning and Urban Development Act, 1976 ("Act" for short). Pursuant thereto, they had started raising constructions on the land. The Collector, Vadodara issued notice dated March 11, 1985 calling upon the Respondents to show cause as to why the constructions raised on the land should not be ordered to be removed u/s 66 of the Code, as no N.A. permission was obtained u/s 65 of the Code. The Respondents filed reply to the said notice on March 30, 1985. The Collector by his order dated June 27, 1986 directed the Respondents to remove the constructions made on the disputed land and eviction of the Respondents there-from. Feeling aggrieved by the said order, the Respondents preferred revision before the State Government u/s 211 of the Bombay Land Revenue Code. The revision came to be rejected vide order dated February 12, 1988. Therefore, the Respondents moved the High Court by way of filing Special Civil Application No. 2264/88 and prayed the Court to set aside the above referred to two orders. The learned Single Judge took the view that as the Respondents had obtained building permission u/s 29 of the Act, it was not necessary for them to obtain N.A. Permission u/s 65 of the Bombay Land Revenue Code. Therefore, the learned Single Judge allowed the petition by judgment dated June 28, 1996, which has given rise to the present appeal.
We may state that similar view was expressed by the learned Single Judge in several other matters and the judgments rendered in some of the matters were subjected to appeal. In Letters Patent Appeal No. 151/96 arising out of Special Civil Application No. 7735/95, Division Bench had passed following order on October 30, 1996:
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ORDER PASSED BY THE HIGH COURT IN THE CASE OF
State of Gujarat through Collector, Baroda....Appellants
v.
Patel Kantibhai Mohanbhai, through constituted power of attorney Chhotabhai Patel, 72, Shrijidhan Co.operative Housing Society, Manjalpur, Baroda....Respondents
BEING LETTERS PATENT APPEAL NO. 151 Of 1996: IN SPECIAL CIVIL APPLICATION NO. 7735 OF 1995.
Mr. B.H. Chhatrapati for Petitioner No. 1
Government Pleader for Petitioner No. 1
Mr. A.J. Patel for Respondent No. 1
Notice served for Respondent No. 1
Mr. P.M. Bhatt for Respondents No. 2-3
Date of Decision: 30.10.1996
CORAM: G.D. Kamat, C.J. and C.K. Thakkar, J.
(30.10.1996)
ORAL ORDER:
We have heard the learned Counsel on admission after disposal of the application for condonation of delay vide Civil Application No. 7797 of 1996. We admit this appeal. Admission is, however, restricted to the interpretation of legal provisions.
Shri A.J. Patel, learned Counsel appearing on behalf of the Respondents say that the scheme has been completed. In that multistoreyed building has already come up. We make it clear that even in the event appeal succeeds,the order to be made shall not in any way affect the buildings which are already erected.
Sd/- G.D. Kamat, J.
Sd/- C.K. Thakkar, J.
Again, in Civil Application No. 7798/96, which was filed in Letters Patent Appeal No. 151/96, following order was passed:
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 7798 OF 1996 IN LETTERS PATENT APPEAL NO. 151 OF 1996
State of Gujarat ...Petitioner
v.
Patel Kantibhai Mohanbhai, through his power of attorney Chhotabhai Kishorebhai Patel ...Opponent
To
The State of Gujarat through Collector, Baroda.
Patel Kantibhai Mohanbhai, through P.O.A. Chhotabhai Kishorebhai, 72, Shrijidhan Co.operative Housing Society, Manjalpur, Baroda.
Whereas the abovenamed Petitioner through his advocate presented the abovenamed application in this Court praying:
And whereas upon hearing Mr. B.H. Chhatrapapti for Petitioner No. 1, Court passed the following order:
Coram: G.D. Kamat, C.J. and C.K. Thakkar, J.
(30.10.1996)
ORAL ORDER:
Rule. Heard learned Counsel for the interim relief. Stay of the impugned judgment. It shall, however, not affect the cases which are decided and the work relating to construction is executed and completed or under construction. The stay shall cover only those cases which arise in future. Rule made absolute accordingly with no order as to costs.
Sd/- G.D. Kamat, C.J.
Sd/- C.K. Thakkar, J.
It is relevant to mention that in Letters Patent Appeal No. 151/96, Court was called upon to interprete Section 117 of the Act. Section 117 provided effect of other law and specified that nothwithstanding anything contained in any other law for the time being in force-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for development has not been obtained.
(b) xxx xxx xxx
The State Legislature has passed Act No. XV of 1999 i.e. "The Gujarat Town Planning and Urban Development (Amendment) Act, 1999". By Section 21 of the amending Act, Section 117(a) of the Gujarat Town Planning and Urban Development Act, 1976 is deleted. The amending Act was brought to the notice of the Court hearing Letters Patent Appeal No. 151/96 and, therefore, the Bench hearing appeal has passed following order on July 2, 1999:
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 151 OF 1996 in SPECIAL CIVIL APPLICATION NO. 7735 OF 1995
State of Gujarat...Appellant
v.
Patel Kantibhai Mohanbhai...Respondent
Mr. B.H. Chhatrapati for Appellant
Mr. A.J. Patel for Respondent No. 1
Mr. P.M. Bhatt for Respondents No. 2 & 3.
CORAM: K.G. Balakrishnan, C.J. AND S.D. Dave, J.
(2.7.1999)
ORAL ORDER: (Per: K.G. Balakrishnan, C.J.)
This is an appeal preferred by the State against the judgment passed in Spl. C.A. No. 7735 of 1995. The Respondent herein had obtained development permission and contended that no further N.A. permission was required to be obtained from the State authority. That plea was accepted on the basis of interpretation of Section 117A of Gujarat Town Planning and Urban Development Act, 1976. While admitting the appeal, it was specifically held that the appeal was being admitted for the purpose of proper interpretation of Section 117A of the Act. On 30th October, 1996, the Division Bench has passed order to the following effect:
Shri A.J. Patel, learned Counsel appearing on behalf of the Respondent says that the scheme has been completed. In that multistoreyed building has already come up. We make it clear that even in the event appeal succeeds, the order to be made shall not in any way affect the buildings which are already erected.
It may also be noted that Section 117A of the Gujarat Town Planning and Urban Development Act, 1976 was deleted by the Amending Act of 1999. Under the aforesaid circumstances, the interpretation of the said provisions is not required. Hence, the appeal is disposed of accordingly, Notice stands discharged.
Date: 2.7.1999
K.G. Balakrishnan, C.J.
S.D. Dave, J.
In this appeal, the Appellant had filed Civil Application No. 5598/97 praying the appellate court to stay judgment and order dated June 28, 1996 rendered by the learned Single Judge in Special Civil Application No. 2264/8, pending hearing and final disposal of the appeal. It was also prayed that the Respondents should be restraining from raising any construction and/or from changing the status of the land in question bearing Survey No. 136 and Final Plot No. 69 situated in Vasna Saied in Taluka Vadodara. Initially, ad-interim relief was granted and the parties were directed to maintain status-quo as on September 1, 1997. However, interim relief was vacated by an order dated September 22, 1997 and Civil Application No. 5598/97 was disposed of.
The orders passed by Division Bench in Letters Patent Appeal No. 151/96 which was filed against judgment passed in Special Civil Application No. 7735/95 as well as Civil Application No. 7798/96 which was filed in Letters Patent Appeal No. 151/96 make it manifest that the construction which was raised by the Respondents on the disputed land would not to be affected in any manner, even if the appeal is to be allowed. There is no manner of doubt that the appeal involves interpretation of Section 117(a) of the Gujarat Town Planning and Urban Development Act, 1976. As Section 117(a) of the Gujarat Town Planning and Urban Development Act, 1976 is deleted by Section 21 of the Gujarat Town Planning and Urban Development (Amendment) Act, 1999, now it is not necessary for the Court to interprete the said provision and the issue involved in the appeal has become academic. It is ruled by the Supreme Court in several reported decisions that the Court should not decide academic matters. Under the circumstances, we are of the opinion that the appeal has become infructuous and deserves to be disposed of accordingly.
For the foregoing reasons, the appeal fails and is dismissed as having become infructuous. There shall be no orders as to costs.
In view of the aforesaid orders passed by this Court, this petition stands disposed of on the same lines. The impugned order at Annexure-H to the petition is quashed and set aside. Rule is made absolute to the above extent with no order as to costs.