HARSHVARDHAN VADILAL SHAH & ORS. vs DEPUTY ESTATE OFFICER & ANR.

As per the below mentioned order, the captioned petition was reserved for judgment alongwith Special Civil Application No. 2855 of 2015. "By judicial order dated 17.01.2017 followed by the order on administrative side, the first captioned Special Civil Application No. 4556 of 2016 was ordered to be placed before this court by notifying the same alongwith the Special Civil Application No. 2855 of 2016. Heard learned advocate Mr. Kunal Shah for the petitioner in Special Civil Application No. 2855 of 2016, learned Assistant Government Pleader Mr. Rohan Yagnik for the state authorities and learned advocate Ms. Mamta Vyas for the respondent No.4; as far as Special Civil Application No. 4556 of 2016 is concerned, submissions of learned advocate Mr. Ishan Patel for the petitioners and learned advocate Mr. Kunal Shah for the second respondent were, heard at length in both the petitions. Reserved for orders." 1.1 Both the petitions are being decided by a separate CAV order.

The present petition is filed seeking to challenge order dated 06.02.2016 passed by the Deputy Estate Officer, Ahmedabad Municipal Corporation-the first respondent herein, who acted as a competent authority under the Gujarat Regularisation of unauthorised Development Act 2011. By the impugned order, the said authority allowed the application of the petitioner under the aforesaid Act and directed regularisation of construction put up in the property in question on payment of necessary fees.

The aforesaid order is in respect of property situated at Survey No. 1239, 1240 and 1241 in the area Kalupur, Ahmedabad. The second respondent herein claims to be the co-owner of the said property. The co-owners are the brothers and sons of one late Vadilal Shah and have been litigating for partition through Suit No. 290 of 2016 instituted by one of the brothers. The said property consists of ground floor and five upper floors with a cellar. In the first three floors, a school in the name of Shri V. R. Shah Smruti Vidyalaya Prathmikshala is being run. 3.1 So far as the other petition being Special Civil Application No. 2855 of 2015 is concerned, the dispute therein was in respect of permission granted by the authority to start 8th standard class in the said school run in the first, second and third floors of the building. 3.2 It appears that the construction of 4th and 5th floors in the property in question was without any approved plan or Building Use Permission from the Corporation. It may be stated that in the said 5th and 4th floor of the building, the school named Anupam Vidya Vihar and Nutan Adarsh Kanya Vidyalay were being run which as per the averments in the petition, came to be shifted to another place. The tenant occupant of the 4th and 5th floors and respondent No.2 herein, appears to have moved the application under the aforementioned Gujarat Regularisation of Unauthorised Development Act, 2011, which culminated into the impugned order.

Learned advocate for the petitioner raised various grounds to assail the impugned order inter alia stating that the application of the second respondent was barred under the various provisions of the Act including that it ought to have been treated as lapsed in view of passage of time of 18 months contemplated under section 6 of the Act. It was also submitted that the respondent authority decided the application of the second respondent without undergoing necessary inquiry and without forming necessary opinion required under the law. 4.1 The respondent No.2 has filed his affidavit-in-reply refuting the case of the petitioner. It was submitted that recognition of the school run by the petitioner and their wives came to be cancelled by order dated 23.09.2015 by the Director of Primary Education; that the second respondent is not only the occupant but the owner of the premise and that there was no delay or time barred element as the respondents took into consideration the objection of the petitioner, verified the facts and made site inspection. It was submitted by learned advocate for the second respondent that remedy of appeal under section 12 of the Act is available to the petitioner and without filing appeal the present petition is straightway filed.

Section 12 of the Gujarat Regularisation of Unauthorised Development Act, 2011 reads as under: "12. (1) Any person aggrieved by the order or decision of the designated authority under section 6 may within sixty days from the date of the oder prefer an appeal to an Appellate Officer, who shall be a person who has held the office of a Judge of District Court for a period not less than three years or a Secretary to the Government of Gujarat, and appointed in this behalf by the State Government. (2) The State Government may appoint as many Appellate Officers as it may deem fit for different areas or part thereof:

Provided that, the Appellate Officer may entertain the appeal after the expiry of the said period of sixty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(3) On receipt of an appeal under sub- section (1) along with a fee of rupees one hundred, the appellate officer may, after giving the appellant an opportunity of being heard, pass an Page 4 of 7 C/SCA/8947/2013 ORDER order confirming, modifying or cancelling the order appealed against as expeditiously as possible.

(4) The decision of the Appellate Officer under sub-section (2) shall be final and shall not be questioned n any court of law.

(5) No appeal under this section by an aggrieved applicant shall be entertained by the Appellate Court unless an amount equivalent to the 50% of the fees payable under this Act is deposited with the designated authority: Provided that where in the opinion of the Appellate Officer amount to be deposited by the appellant is likely to cause undue hardship to him, the Appellate Officer may in his discretion unconditionally or subject such conditions as he may think fit to impose, dispense with a part of the amount to be deposited so however that the part of amount so dispensed with shall not exceed fifty per cent of the amount required to be deposited. (6) The Appellate Officer shall receive, such monthly salary and such other facilities and allowances from such authority as the State Government may determine from time to time. (7) The provision of sub-section (2) to (5) shall not apply in a case where the appeal is not preferred by the occupier or owner."

5.1 It is an undisputed position, in view of above, that statutory appeal under section 12 of the Act is an alternative remedy available to the petitioner to challenge the order of the first respondent impugned in this petition.

5.2 Having considered the facts of the case, nature of the contentions and the counter contentions of the parties and in view of the aspect that the petitioner herein is still to avail the aforesaid remedy and having further regard to the compass as well as the nature of the controversy, the petitioner deserves to be relegated to exhaust alternative statuary remedy. This court is disinclined to exercise the writ jurisdiction and entertain the writ petition which is instituted straightway without availing the statutory remedy of appeal as above.

Therefore, on the aforesaid ground alone that the alternative statutory remedy of appeal is available, this petition is not entertained. The petitioner is relegated to the said remedy. It is therefore directed that if the petitioner avails the said remedy and prefers the necessary appeal within a period of three weeks from today before the competent authority, the competent authority/officer shall consider the same in accordance with law.

As far as the aspect of limitation and condonation of delay is concerned, the same shall be considered in light of the aspect that the petitioner was prosecuting this petition which remained pending, the appellate authority shall exercise its powers under proviso to sub-section(2) of section 12 to entertain the appeal keeping in view the said consideration.

This court has not gone into the merits of the case of the petitioner and it would be open to the petitioner to raise all the factual and legal contentions before the appellate authority while pursuing the appeal.

The petition is dismissed as above. Notice is discharged.