1. Heard Mr. R.R.Marshal, ld. Senior Advocate with Mr.R.R.Shah, ld. Advocate for the petitioner. Ms. Asmita Patel, ld. AGP for respondent No.1. Mr. Prashant Desai, ld. Senior Advocate with Mr. Deep Vyas, ld. Advocate appearing for respondent No.2 and 3 and Mr. Mihir Joshi, ld. Senior Advocate for Mr. Jeet Bhatt for respondent Nos.4 and 5.
2. Considering the issue involved in the present petition and on perusal of the record of this petition i.e. the contentions raised in the petition, the affidavit in reply filed by respondent No.2 and 3 as well as the reply filed by respondent Nos.4 and 5 and HC-NIC Page 1 of 5 Created On Fri Jul 01 03:33:53 IST 2016 SCA/9853/2012 2/5 ORDER rejoinder filed by the petitioner and on the basis of the submissions made by all the learned Senior Advocates appearing for the respective parties, the petition requires consideration. Hence, RULE.
3. What is contended in the present petition is as regards the alleged illegal and unauthorized construction, put up and being put up by respondent Nos.4 and 5. It is matter of fact that during the pendency of this petition, respondent Nos.2 and 3 have issued a notice as provided under Section 260(1) of the Gujarat Provincial Municipal Corporation Act, as stated by Mr. Prashant Desai, ld. Senior Advocate appearing for respondent No.2, dated 13.09.2012. Taking into consideration the fact that the said notice has to be decided by the respondent corporation as well as the competent officer of the respondent corporation in accordance with law, the following directions are issued as enumerated below:
4. In light of the aforesaid, the following directions are issued:
I. Pending the final hearing of this petition, the respondent Nos.2 and 3 shall serve the notice HC-NIC Page 2 of 5 Created On Fri Jul 01 03:33:53 IST 2016 SCA/9853/2012 3/5 ORDER under Section 260(1) of the Act dated 13.09.2012 upon respondent Nos.4 and 5, latest by 15.09.2012. On receipt of the same, respondent Nos.4 and 5 shall file reply to the said show cause notice, latest by 29.09.2012. II. On receipt of such a reply, the respondent corporation shall intimate respondent Nos.4 and 5 about the date and time of hearing within 2 days from the receipt of the reply.
III. The respondent corporation and/or its competent authority shall hear respondent Nos.4 and 5 and pass an appropriate, reasoned order as provided under Section 260(2) of the Act, without being influenced by the fact that the present petition is admitted and these interim directions are issued.
IV. The respondent corporation shall decide the same in accordance with law and as per the building byelaws as well as General Development Regulations applicable and as prevailing. The respondent corporation shall place the final order before this Court, accordingly.
which is shown in the notice under Section 260(1) of the Act, surveyed, latest by 15.09.2012 by an officer, not below the rank of Deputy Estate Officer and produce a report before this Court in this petition alongwith the photographs, which should bear the date on which such photographs are taken. A copy of the said report shall be provided to the parties to this petition. Mr. Joshi, ld. Senior Advocate, assures this Court that respondent No.4 and 5 shall cooperate the officer in conducting the said survey.
5. Till the aforesaid exercise is carried out by the respondent corporation as per the directions enumerated above, respondent No.4 and 5 shall not construct further upon the disputed land and shall not put disputed structure (external) to use in any manner whatsoever till further orders. Mr. Joshi, learned Senior Advocate, does not invite any reasons for the same.
6. As observed above, the respondent corporation HC-NIC Page 4 of 5 Created On Fri Jul 01 03:33:53 IST 2016 SCA/9853/2012 5/5 ORDER shall take decision as directed by this Court, strictly on its own merits, after giving opportunity of being heard to the respondent Nos.4 and 5 and after considering the reply, if any, filed by the respondent Nos.4 and 5.
7. After the order is passed by the Municipal Corporation, as directed above, the petition shall be placed before the Court for its further consideration. Parties to this petition are permitted to move the Court for its hearing before the Court.
8. Direct service is permitted.
[R.M.CHHAYA, J.] Ankit* HC-NIC Page 5 of 5 Created On Fri Jul 01 03:33:53 IST 2016