Heard learned advocates for the parties.
The petitioner, an association of owners / allotees of plots in industrial area under the control of respondent GIDC at Hansalpur, Viramgam, district Ahmedabad, has approached this Court by way of this petition under Article 226 of the Constitution with following main prayers:
"(A) Be pleased to admit and allow the present petition.
(B) Be pleased to issue writ of mandamus or any other appropriate, writ, order or direction under Article 226 of the Constitution of India quashing and setting aside the decision taken by the respondent GIDC as contained in communications dated 15.4.2011 at Annexure-'C', and 28.7.2011 At Annexure-'E', of issuing No Objection Certificate and permitting respondent No.6 Nitaben to make use of the open plot between plot Nos. 237 and 238 in GIDC Industrial Estate, Hansalpur, Viramgam,District Ahmedabad, as road.
Be pleased to hold and declare that the respondent GIDC has got no power or authority and is not entitled to permit the use of the open plot between plot Nos. 237 and 238, in Industrial Estate, Hansalpur, Viramgam, District Ahmedabad, other than the purpose for which the said open plot is reserved in the development plan sanctioned for the said industrial estate on 11.9.1996 and be pleased to direct the respondent authorities not to permit the use of the said open plot for the purpose of road to anybody, including respondent No.6 Nitaben, by issuing suitable writ, order or direction under Article 226 of the Constitution of India.
(D)Be pleased to direct the respondent authorities not to permit or make use of the open plot between plot Nos. 237 and 238, in Industrial Estate, Hansalpur, Viramgam, District Ahmedabad, for any other purpose except the purpose of Future Expansion for which the said plot is reserved in the development plan at Annexure-'A', by issuing suitable direction under Article 226 of the Constitution of India.
(E) Be pleased to direct the respondent GIDC to use the plot in question, i.e. open plot between plot Nos. 237 and 238, in Industrial Estate, Hansalpur, Viramgam, District Ahmedabad by allotting such plot for the office purpose of the petitioner Association or for community hall for the members of the Association or for any further Future Expansion for the benefit of the members of the petitioner Association, by issuing suitable direction under Article 226 of the Constitution of India.
(F) Be pleased to grant interim direction, directing the respondent authorities as also respondent No.6 Nitaben, not to make use of the open plot between Plot Nos. 237 and 238, in Industrial Estate, Hansalpur, Viramgam, District Ahmedabad for road or for any purpose other than Future Expansion for which reservation is made in the development plan at Annexure-'A' and further grant interim direction, directing the respondents not to carry out any change or any construction or any kind of alteration in the said plot for making use of the said plot for the purpose of road and be pleased to grant further interim direction, directing the respondents to maintain the status-quo in respect of the said plot, till this petition is finally heard and decided by this Hon'ble Court."
The petitioner association is bringing an action by way of this petition challenging the decision of respondent GIDC in permitting respondent no.6 to have right of ingress & egress through open plot which is not numbered as the respondent no.6 is owner and in possession of the land contiguous to the property of GIDC being Survey No. 89. GIDC was requested to permit respondent no.6 to use that way as otherwise there was no other ingress or egress out of survey no. 89, as when GIDC acquired plots or piece of land the original owner of survey no. 89 was assured of right to entry and exit through the plot, therefore the plot is not even numbered, though in map it is mentioned that 'kept for future expansion'.
Learned advocate for the petitioner has contended that the petitioner association have been taken into confidence for constructing boundary wall surrounding the entire GIDC estate, and specific consent was obtained there from and they have contributed towards construction of wall, now on account of accepting respondent no.6's request for way, the construction wall on that open plot is required to be broken and not only respondent no.6 is given right to ingress & egress but she has been permitted to enjoy other infrastructural facilities on contribution basis as if she became member of the industrial estate in question.
Petitioner's advocate has further contended that the map forming part of the compilation to petition clearly indicate that subject land is reserved for future expansion and that motive is unfortunately given go-bye on account of request of the petitioner, who has stuck into the issues of original land looser. Thus per say she is not a land looser and therefore when she purchased the land in question bearing part of survey no. 89 she had to thank herself and she cannot claim the way through GIDC estate which is causing inconvenience to the members.
Petitioner's advocate further contended that the respondent no.6 who is not original land looser has misled this Court by saying that she is entitled to have way through that open plot in her capacity as land looser. Therefore, on this count also the action of respondent GIDC deserves to be deprecated and it is required to be quashed and set aside.
The permission to respondent no.6 to use the plot would be contrary to sanctioned lay out plan and therefore to that extent it amounts to perpetuating illegality and hence on this count also the petition is required to be allowed.
The counsel for respondent no.6 and GIDC invited this Court's attention to the averments made in the counters and submitted that, it was never a case of respondent no.6 that she herself is the land looser, but this fact is not denied by any one that originally when GIDC was acquiring land this owner was possessing land bearing part of survey no.89 and was assured way of right and therefore, if one looks at the map those plot is not even numbered and is kept as open plot. The very mentioning of future expansion may not be construed to a meaning as petitioner is seeking it to be construed. The petitioner have no right whatsoever for challenging the action of GIDC as GIDC has never promised the petitioner or members of the association that this land will be kept for any particular purpose. GIDC cannot be deprived of its right and obligations under law. The provision of law otherwise also persuades respondents to give way to land locked owner. Therefore, in view of the decision of GIDC, the petition being filed only for creating hurdle may be rejected.
Learned counsel for GIDC as well as respondent no.6 have further invited this Court's attention to the decision and the factors considered while deciding the matter and submitted that the petitioner have no right which could be enforced against GIDC for keeping the plot as it is. The proforma agreement with land owner or allotee also no way suggests in any contrary to what is submitted on behalf of GIDC and respondent no.6.
Learned counsel for GIDC has submitted that respondent no.6 has already paid the requisite charges for accepting her request for permission and therefore now GIDC cannot be compelled to refund the amount and close the way.
This Court heard learned advocate for the parties and perused the documents annexed with the petition. The petition is required to be dismissed for the following reasons:
i) Petitioner association or its members have not indicated any where as to in what manner they claim right over the open piece of land which is termed as 'open plot' as the association as such has no relationship with GIDC in its capacity as an association. GIDC has entered into an agreement with individual plot holders and the advocate for the petitioner has failed in indicating any condition in any one of them which would give some right in favour of an individual member or even in favour of association or collectively to claim preservation of plot as open plot so as to deny request of respondent no.6.
The members of the association at the best can be claimed to have some inconvenience on account of respondent no.6's request for using the road, but the petition lacks any material or even pleading which would merit some consideration under Article 226 of the Constitution.
The petitioner association or members could not even remotely establish any right or establish any right in them to resist the action of GIDC or any reasonableness in the action impugned. Therefore, this petition being meritless deserves rejection and is accordingly rejected. Ad-interim relief granted earlier stands vacated. Notice discharged. However there shall be no order as to costs.
At this stage learned advocate for the petitioner requests for extension of ad-interim relief already granted, which is resisted by learned advocate for the respondent no.6. In view of the reasonings given in the order, I am of the considered view that granting extension of ad-interim stay is not in the interest of justice, hence the request is rejected.
[ S.R. BRAHMBHATT, J ] /vgn Top