New Shivam Co-op. Housing Society Ltd. vs State of Gujarat and Others

Rajesh H. Shukla, J.—Both the present petitions have been filed by the petitioners under Articles 14 and 226 of the Constitution of India as well as under the provisions of Gujarat Town Planning and Urban Development Act, 1976 as well as under the provisions of Bombay Land Revenue Code, 1879 for the prayers inter alia, that the impugned order passed by the Collector at Annexure-H produced in Special Civil Application No. 2237 of 1999 and impugned order passed at Annexure-M produced in Special Civil Application No. 9790 of 1998 may be quashed and set aside on the ground stated in the petition. Heard Mr. A.J. Patel, learned advocate for petitioners, learned advocate Mr. Amit Thakkar for respondent No. 3 and learned A.G.P. Mr. Bharat Vyas.

When the matter is called out, learned advocate Mr. Patel has submitted that issue involved in the matters is no longer res-integra as the provisions of Section 117(a) of the Gujarat Town Planning and Urban Development Act, 1976 has been interpreted with specific observation that once the land is converted and the permission for development has been granted under the Development Act, NA permission under the provisions of Sections 65 and 66 of the Bombay Land Revenue Code is not necessary. Learned advocate Mr. Patel and Mr. Amit have submitted, however when the matters were earlier before the Coordinate Bench (Coram: Hon''ble Mr. Justice R.S. Garg) the order was passed on 13.4.2007 that these matters may be decided after the reference is decided in Special Civil Application No. 6691 of 1996. Learned advocates have referred to the order passed by the Hon''ble Division Bench consisting of the Hon''ble the Acting Chief Justice Mr. Bhaskar Bhattacharya and Hon''ble Mr. Justice J.B. Pardiwala in aforesaid Civil Application No. 6691 of 1996 dated 12.3.2012 and submitted that Hon''ble Division Bench has decided the reference in favour of the petitioner specifically observing in para 15 and 16 which clinches the issue and it is clearly observed that:--

On consideration of the entire material on record. We therefore, hold that in this case, once permission has been granted u/s 29(1) of the Act, in view of the then provision of the Section 117(a) of the Act, there was no necessity of taking permission under any other authority and the so-called condition imposed in the revised order u/s 29(1) of the Act was not a condition lawfully imposed u/s 29(1) of the Act. It being not supported by any reason. Disclosure of which was mandatory u/s 29(2) of the Act and at the same time.

Further in the judgment, it has also made a reference to the earlier judgments and the orders of the Hon''ble Division Bench in LPA 205 of 1999 in Special Civil Application No. 2365 of 1998 (in case of Co-operative Society) and also other orders. Therefore, in light of these clear findings and answer given by the Hon''ble Division Bench in the reference, the present petitions deserve to be allowed. It is stated by learned advocate for the petitioner that permission has been granted and construction has also been made. It would now be necessary to go beyond it and no permission under Land Revenue Code is required. The present petitions stand allowed. Prayer in terms of para 14(A) of SCA No. 2237 of 1999 and prayer in terms of para No. 19(A) in Special Civil Application No. 9790 of 1998 are granted. Both the impugned orders are hereby quashed and set aside. Rule is made absolute accordingly.