SCA/3342/1994 of DOSHI NARESHKUMAR DAHYALAL Vs STATE OF GUJARAT on 7 October 1995

ORAL JUDGMENT

The order passed by the Deputy Secretary (Appeals),Revenue of Department at Ahmedabad on behalf of the State ofGujarat (the respondent herein) on 8th February 1994 is underchallenge in this petition under Art. 226 of the Constitutionof India. By the impugned order, the N.A. permission grantedto the petitioner by the order passed on 30th May 1991 by the District Development Officer of Sabarkantha District atHimatnagar with respect to a parcel of land bearing Survey No.1579 situated at Vadali Taluka Idar (the disputed land forconvenience) came to be set aside in exercise of the powersunder sec. 211 of the Bombay Land Revenue Code, 1879 (the Codefor brief).

2. The facts giving rise to this petition move in a narrow compass. The petitioner applied for N.A. permission to theDistrict Panchayat with respect to the disputed land. By theorder passed on 30th May 1991 by the District DevelopmentOfficer at Himatnagar, such permission came to be granted oncertain terms and conditions. Its copy is at Annexure A to thispetition. It appears to have come to the notice of theconcerned officer of the respondent. He appears to have foundit not according to law. Its suo motu revision under sec. 211of the Code was therefore contemplated. Apropos, a show-causenotice came to be issued on 3rd August 1991 calling upon thepetitioner to show cause why the N.A. permission at Annexure Ato this petition should not be cancelled. A copy of theaforesaid show-cause notice is at Annexure C to this petition.The petitioner filed his reply thereto on 13th December 1991.Its copy is at Annexure D to this petition. The petitioner alsoproduced before the author of the show-cause notice onecertificate issued by the Nagar Panchayat of Vadali indicatingthat the petitioner's land was situated within the town site,that is, within the constructed area of the town. A copy of theaforesaid certificate is at Annexure F to this petition. By theorder passed by and on behalf of the respondent on 8th February1994 under sec. 211 of the Code, the permission at Annexure Ato this petition came to be set aside. A copy of the aforesaidorder passed on 8th February 1994 is at Annexure H to thispetition. The aggrieved petitioner has thereupon approachedthis court by means of this petition under Art. 226 of theConstitution of India for questioning its correctness.

3. The ground on which the N.A. permission at Annexure Ato this petition is cancelled is to the effect that theconstruction proposed to be raised pursuant to the N.A.permission at Annexure A to this petition was within thebuilding line as provided in the Ribbon Development Rules (theRules for convenience) framed under Sec. 492(1) of the Code ofCriminal Procedure, 1898. A copy of the Rules is at Annexure Bto this petition. It is not in dispute that the disputed landis abutting on the State Highway between Ambaji and Idar. Inview of the Table given in the Rules, the building line is 40meters from the centre of the road. There is however aprovision in Rule 3(2) thereof to the effect that, if the landis situated in the village site (or in the town site), thebuilding line would be as shown in Col. 5 thereof which isshown to be 24 meters from the centre of the road. It has been provided in Rule 3(7) thereof that, if the road takes turn inthat area or the land in question is on the curve, the buildingline would be 20% more than what is shown in the Table.

4. The petitioner has filed an additional affidavitannexing therewith certain documents. One document is acertificate issued by the Gram Panchayat of Vadali (it appearsto have been converted from a nagar panchayat to a grampanchayat) indicating that the disputed land is situated in thevillage site. In that view of the matter, the building line inaccordance with the Table given in the Rules would be 24 metersfrom the centre of the road. It is not in dispute that the landis situated or rather abutting on the curvature of the road andin view of Rule 3(7) thereof 20% will have to be added to thebuilding line. In that case, the building line would be 28.8meters from the centre of the road. It transpires from therecord that the petitioner has made construction at a distanceof 29 meters from the centre of the road. In that view of thematter, the petitioner cannot be said to have made any breach ofany provision of the Ribbon Development Rules. The contraryconclusion reached by the author of the order at Annexure H tothis petition cannot therefore be sustained in law. It deservesto be quashed and set aside.

5. In the result, this petition is accepted. The orderpassed by and on behalf of the State of Gujarat on 8th February1994 at Annexure H to this petition is quashed and set aside.Rule is accordingly made absolute with no order as to costs.