VASUBHAI NARANBHAI PATEL Vs. AHMEDABAD URBAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) RULE . Shri R.R.Marshall, learned advocate waives service of notice of Rule on behalf of respondent No.1 -AUDA and Shri Shalin Mehta, learned advocate waives service of notice of Rule on behalf of respective respondents. With the consent of learned advocates appearing for the respective parties, the petition is taken up for final hearing today.

(2.) BY way of this petition under Article 227 of the Constitution of India, petitioners -original plaintiffs/appellants have prayed for an appropriate writ, order or direction, quashing and setting aside the judgment and order dated 7.11.2006 passed by the learned Additional District Judge and 2nd Fast Track Court, Ahmedabad (Rural) passed in Civil Misc.Appeal No.138 of 1998 as well as order dated 17.11.1998 passed by the learned 7th Joint Civil Judge (S.D.), Ahmedabad (Rural) below Exh.5 in Regular Civil Suit No.108 of 1997 as well as notice dated 2.8.1996 issued by the respondent No.1 -Ahmedabad Urban Development Authority (hereinafter referred to as "AUDA"). The petitioners have also prayed for directing the respondent No.1 to clarify under which authority it has cancelled the development permission dated 1.8.1992.

(3.) PETITIONERS herein -original plaintiffs have instituted Civil Suit No.108 of 1997 in the Court learned 7th Joint Civil Judge (S.D.), Ahmedabad (Rural) for a declaration for declaring the notice dated 2.8.1996 issued by the respondent No.1 hereinoriginal defendant No.1 AUDA issued under Section 36 of the Gujarat Town Planning Act (hereinafter referred to as "the Act") as illegal and also prayed for permanent injunction restraining the respondent No.1 -AUDA from implementing the said notice dated 2.8.1996 and further restraining the AUDA obstructing the plaintiffs from using the suit property/Row houses. It is the case on behalf of the plaintiffs that they are in occupation and possession of the Row houses ad -measuring 50 sq.yrds allotted by the defendant No.2 society and they have become the absolute owner of the said Row houses. It is the case on behalf of the plaintiffs that they have been allotted the said tenements on payment of full consideration. However, as there was a dispute between the society and the original land owners, the sale deed cannot be executed. It was further case on behalf of the plaintiffs that all of a sudden the respondent No.1 herein -AUDA issued notice dated 2.8.1996 under Section 36 of the Act for demolition of the aforesaid Row houses and therefore the aforesaid suit came to be filed for the aforesaid reliefs. In the said suit, the petitioners -original plaintiffs submitted application Exh.5 for interim injunction which came to be heard by learned Additional District Judge and 2nd Fast Track Court, Ahmedabad (Rural), who by his order dated 7.11.2006 dismissed the application Exh.5 by holding that the construction of Row houses in question is absolutely illegal and unauthorised and in fact development permission was already cancelled in the year 1992, and in spite of cancellation of development permission, Row Houses came to be constructed and that even the society from whom the plaintiffs have alleged to have purchased the Row Houses had no title and even the plaintiffs have also no title as there are no sale deed executed in their favour. The learned trial court also held that the notice dated 2.8.1996 is a consequential notice under Section 36 of the Act and therefore neither the balance of convenience nor there is a prima facie case in favour of the plaintiffs and thereby dismissed the application below Exh.5.