KANAIYALAL NANDUMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Shri D.D. Vyas, learned counsel for the petitioners. Shri A.Y. Kogje, learned AGP for the respondents. The parties are finally heard.

(2.) Somewhere in the year 1980, the petitioners could secure permission under the hands of the Collector under Section 65 of the Bombay Land Revenue Code, 1879 for raising residential construction on the plot in their possession. Even at this stage, it is to be noted that the petitioners had made joint application and had secured joint order in their favour. The plot in dispute was admeasuring 562 meters but the Collector granted permission to raise one single construction to the tune of 160.60 sq. mts. The petitioners thereafter made separate applications to the Municipality for sanction of the plans, two separate permissions were sought and instead of one joint construction, two separate residential constructions were made. The total area, according to the respondents exceeded by 21.90 meters. After learning about the fact, the Collector issued a notice dated 14.8.99 to each of the petitioner asking them to show cause as to why construction was made beyond the permission granted, the construction was illegal as the marginal land, which was required to be kept open was not left and if permission was for one single construction, why two separate constructions at a distance of 3/5 meters have been raised.

(3.) Each of the petitioner appeared before the Collector and submitted that they did not raise any extra construction and if ultimately any construction in excess of the said permission is found, the same be regularised, they admitted that the land to be left as marginal open land was not available in accordance with the permission granted by the Collector but submitted that the land was left as marginal open land in accordance with the municipal byelaws and the plans sanctioned by the Municipality. It was lastly submitted that each of the petitioner made separate application to the Municipality for sanction of the plans and as the separate applications were sanctioned, construction of two separate units was not illegal. After hearing the parties, the Collector, by his order dated 29.10.90 made in Vashi.23-B 2384/exemption final registration no.22/89 No. CH/N.A./Breach of condition/Reg. 3/90-91, directed that the illegal construction beyond the permission of the Collector be removed. The petitioners being aggrieved by the said order, took up the matter before the Additional Secretary, Revenue Department [Disputes), the matter was registered as SRD/BKHP/VLS/790.5/95 and as the said matter came to be dismissed on 21.6.95, the petitioners are before this Court.