Gujarat High Court
SCA/7127/1991 of SHOBHABEN K DESAI Vs SURAT MUNICIPAL CORPORATION THRO MUNICIPAL COMMISSIONER on 14 September 1995
1 Date of Decision: 14th September 1995 SPECIAL CIVIL APPLICATION NO. 7127 of 1991 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA 1. Whether Reporters of Local Papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? No 3. Whether their Lordships
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���Date of Decision: 14th September 1995
SPECIAL CIVIL APPLICATION NO. 7127 of 1991
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHA
1. Whether Reporters of Local Papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether their Lordships wish to see the fair copy of judgment? No
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? No
5. Whether it is to be circulated to the Civil Judge? No
---------------------------------------------------------------- Kum. V.P. Shah, Advocate, for the Petitioner Shri Prashant G. Desai, Advocate, for the Respondents
----------------------------------------------------------------CORAM: A.N. DIVECHA, J.(Date: 14th September 1995)
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ORAL JUDGMENT
The order passed by and on behalf of the respondents on14th August 1991 rejecting the building permission to thepetitioner for construction on her land is under challenge inthis petition under Art. 226 of the Constitution of India.
2. It is not necessary to set out in detail the factsgiving rise to this petition. On behalf of the petitioner, an application for building permission for construction on her landwas made. It was accompanied by the necessary building plans.By the order passed on 14th August 1991, such permission wasrejected on the ground that the land in question wascontemplated to be acquired. Its copy is at Annexure D to thispetition. The aggrieved petitioner has questioned itscorrectness by means of this petition under Art. 226 of theConstitution of India.
3. It may be mentioned that, by an interim order, thiscourt directed the responents to consider that application forbuilding permission and approval of the building plans de horsthe contemplated acquisition. Thereupon one order came to bepassed on 24th October 1991 rejecting such permission on accountof several objections found in the building plans. Its copy isat Annexure 1 to the affidavit-in-reply filed on behalf of therespondents. It is not in dispute that the objections mentionedtherein have not been removed by or on behalf of the petitionerpresumably because of pendency of this petition before thiscourt.
4. The question whether or not the building permission canbe refused on the ground of contemplated acquisition is nolonger res integra. In its Division Bench ruling in the case ofSurat Municipal Corporation and Another v. Bhikhabhai MorarbhaiPatel and Others reported in 1994(2) 35(2) G.L.R. 947 thiscourt has held that the contemplated acquisition under sec. 78of the Bombay Provincial Municipal Corporations Act, 1949 is noground to refuse building permission. In that view of thematter, the impugned order at Annexure D to this petition cannotbe sustained in law for a single moment.
5. It is however the case of the respondents that thebuilding permission has been refused on account of objectionsraised on the basis of the building plans submitted therewith interms of the communication at Annexure 1 to theaffidavit-in-reply filed on behalf of the respondents in thiscase. That communication was issued more than 3 1/2 years ago.It might be too stale at this stage to require the respondentsto consider the building permission afresh after objectionsfound therein are removed. Instead, it would be quite proper todirect the petitioner to make a fresh application for buildingpermission together with the necessary building plans. It wouldbe desirable on the part of the respondents to point outdefects, if any, or raise objections, if any, with respect tosuch building plans at a stretch and not on a piecemeal basis.The building permission together with the building plans made byor on behalf of the petitioner shall be considered on their ownmerits uninfluenced by any contemplated or proposed acquisitionin view of the aforesaid Division Bench ruling of this court.It is clarified by way of abundant caution that the building permission cannot and need not be refused on the ground of anycontemplated or proposed acquisition.
6. In vies of my aforesaid discussion, I am of the opinionthat the petition deserves to be accepted only to the limitedextent of quashing and setting aside the impugned order atAnnexure D to this petition. The parties are required to actaccording to law in the light of this judgment of mine.
7. In the result, this petition is accepted to theaforesaid limited extent. The order passed by and on behalf ofthe respondents on 14th August 1991 at Annexure D to thispetition is quashed and set aside. The respondents are directedto act according to law in the light of this judgment of mine asand when an application for building permission together withthe necessary building plans is presented by or on behalf of thepetitioner. Rule is accordingly made absolute to the aforesaidlimited extent with no order as to costs.
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