Vanita Shah Widow Of Late Shri ... vs Gandhidham Development ...

1. This petition is filed under Article 226 of the Constitution of India, wherein the petitioners have prayed that direction be issued to respondent No.1, Gandhidham Development Authority to implement and execute the order dated 01.03.2014 and to demolish the illegal construction made by respondent No.2 on Plot No.91, Ward No.12B, Gandhidham.

2. Heard learned advocate Ms.Aishwarya Reddy for M/s. Trivedi and Gupta, appearing for the petitioners and learned advocate Mr.N.L. Ramnani for respondent Nos.2 to 2.3.

3. Learned advocate for the petitioners submitted Page 1 of 6 C/SCA/7220/2014 ORDER that the petitioners are residents of Plot No.90, Ward No.12B, Gandhidham. It is submitted that respondent No.2 has carried out the illegal construction on Plot No.91, Ward No.12B in contravention of the provisions of the Gandhidham (Development and Control on Erection of Building) Act, 1957 (hereinafter referred to as "the Act of 1957" for short) and the Rules framed thereunder. It is submitted that when the said aspect was pointed out to respondent No.1 authority by the petitioners, respondent No.1 issued Show­cause Notice dated 12.02.2014, to show cause as to why action under Sections 12 and 13 of the Act may not be initiated against him. Thereafter, the order of demolition was passed by respondent No.1 under Section 12(1) of the Act. Learned advocate for the petitioners referred the said order, copy of which is produced at Page­13 of the compilation. The grievance of the petitioner is that though the said order is passed by respondent No.1, no action is taken by respondent No.1 authority for demolition of the illegal construction carried out by respondent No.2. It is, therefore, urged that this petition be allowed and appropriate direction be Page 2 of 6 C/SCA/7220/2014 ORDER issued to respondent No.1 authority.

4. On the other hand, learned advocate Mr.N.L. Ramnani appearing for the private respondents referred the affidavit­in­reply filed on behalf of respondent No.1 and submitted that as per the provisions contained in Section 12 of the Act, respondent No.1 has already filed Reference before the Principal District Judge, Kutch at Bhuj and, therefore, the said authority has already initiated an action and now the matter is pending before the competent Court. It is further submitted that the present petitioners have no locus to file the present petition, as they are not parties before the Principal District Judge, Kutch at Bhuj, where the Reference is pending and, therefore, this petition is not maintainable and required to be dismissed.

5. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the grievance of the petitioners in the present petition is about inaction on the part of respondent No.1. It is alleged that though respondent No.1 has passed an order for Page 3 of 6 C/SCA/7220/2014 ORDER demolition of the illegal construction carried out by respondent No.2, no action is taken by the said authority. However, from the affidavit­in­reply filed by respondent No.1, copy of which is produced at Page­33 of the compilation, it is clear that respondent No.1 has already filed the Reference under Section 12 of the Act before the Principal District Judge, Kutch at Bhuj. Copy of the said Reference is also produced on record at Page­36 of the compilation. The said proceedings are pending before the competent Court and it is for the competent Court to pass appropriate order in the Reference filed by respondent No.1, in accordance with law.

6. At this stage, Section 12 of the Act is required to be referred to, which provides as under:

"12. Order of demolition of building in certain cases.:­ (1) Where the Authority is satisfied that the erection of any building has been commenced, or is being carried on, or has been continued in contravention of any direction issued under section 6 or without the permission referred to in section 7 or in contravention of any condition subject to which such permission Page 4 of 6 C/SCA/7220/2014 ORDER has been granted, the Authority may make an order directing that such erection shall be demolished by the owner thereof within such period not exceeding two months, and on the failure of the owner to comply with the order, the authority may itself cause the erection to be demolished and the expenses of such demolition shall be recoverable from the owner in the same manner as an arrear of land­revenue:

Provided that before causing such erection to be demolished, the Authority shall make a reference [to the District Judge, Kutch, who shall constitute a Board of Appeal under section 19 for deciding the reference.] The Board shall after giving notice to the owner and after giving him reasonable opportunity to show cause why the erection should not be demolished, confirm, modify or cancel the order of demolition. The decision of the Board shall be conclusive, and shall not be liable to be questioned in any suit in a civil or any proceeding in a criminal court.

(2) The order direction the demolition of any erection made under sub­section (1) shall not prevent the infliction of any punishment to which the person affected thereby is liable under section 13 or any other law for the time being in force."

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C/SCA/7220/2014 ORDER

7. In the aforesaid facts and circumstances of the present case, this Court is of the view that when the action is already initiated by respondent No.1 by filing Reference before the competent Court, the present petition is not required to be entertained. Accordingly, the petition is dismissed. Notice is discharged.

(VIPUL M. PANCHOLI, J) piyush Page 6 of 6