UPENDRABHAI MAGANBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case are that the petitioner applied for permission for construction over a portion of the land bearing Survey No.1082/2 to the Nadiad Urban Development Authority. The permission came to be granted on 22.4.1993 by the said Urban Development Authority. Thereafter, as per the petitioner, the plinth level construction was made and at that stage, the District Collector initiated proceedings under the Bombay Land Revenue Code (hereinafter referred to as ?the Code?) and on 31.1.1994, the District Collector passed the order for removal of the construction on the ground that the conditions of order dated 15.2.1984 were not complied with and fresh permission under Section 65 of the Code was also not obtained. The petitioner carried the matter before the State Government in revision, which came to be decided on 26.2.1996 and the State Government observed that the permission was required to be obtained under Section 65 of the Code and as, in any case, the conditions were not complied with when the permission was granted under the Code in the year 1984, the order of the Collector was proper and, therefore, the revision was dismissed. It is under these circumstances the present petition.

(2.) Heard Mr.Shital R. Patel for Mr.A.J.Patel, learned Counsel for the petitioner and Mr.Soni, learned AGP for the State Authorities.

(3.) Mr.Patel, learned Counsel appearing for the petitioner, contended that in view of the decision of this Court in case of ?Karimbhai Kalubhai Belim and Ors v. State of Gujarat and Anr.?, reported in 1996(1) GLH, 200 permission under Section 65 of the Code is not to be obtained if the permission is already granted under Gujarat Town Planning and Urban Development Act (hereinafter referred to as ?the T.P. Act?). He submitted that in the year 1999 there was amendment in the T.P. Act, whereby Sub-section (A) of Section 117 is deleted, but the same at the most would apply prospectively and it would not alter the position of law as already laid down by this Court in the above referred decision. In support of his contention, he also relied upon the decision of the Division Bench of this Court dated 17.12.2003 in LPA No.205 of 1999 in SCA No.2365 of 1998 and, therefore, he submitted that as per the view taken by the Division Bench in the said decision, for the construction made prior to 1999 cannot be said as illegal merely because the permission is not obtained under Section 65 of the Code and, therefore, he submitted that the order passed by the Collector and its confirmation thereof by the State Government deserve to be quashed and set aside.