- (1.) All the three petitions raise similar and common challenge and involve almost similar facts and contentions. The respondent is also common. Therefore, it is proposed to decide the petitions by present common order. For sake of convenience, facts are drawn from the record of SCA No.3444 of 2011.
(2.) The petitioner has preferred present petition seeking below mentioned reliefs:- "(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned public notice dated 29.07.2010 published under the Gujarat Government Gazette Part-II by the respondent No.l as being without jurisdiction, authority of law, arbitrary and violative or Articles 14, 19 (1) (g) and 21 of the Constitution of India; (B) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the action of respondents in seeking to enter in the agricultural land bearing Block No. 76, situated Mouje: Bilasiya, Taluka : Daskroi, District: Ahmedabad and in seeking to make construction thereon as being illegal, arbitrary, null and void, without authority, against the provisions of the Electricity Act, 2003 and also violative or Articles 14, 19 (l)(g) and 21 of the Constitution of India; (C) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, declaring that the respondents have no power or authority to enter into the land fo the petitioner and to erect any poles thereon in pursuance to impugned public notice dated 29.07.2010 published under the Gujarat Government Gazette Part-II, by respondent no.l, in the interest of justice and equity; (D) YOUR LORDSHIPS be pleased to restrain the respondents, their Officers, agents, servants, etc. from entering into the agricultural land of the petitioner being Block No.76 Mouje Bilasiya, Taluka-Daskroi, District-Ahmedabad and putting up any construction on the same, pending the admission, hearing and final disposal of this petition;"
(3.) After initial hearing, while issuing notice to the respondent company following order was passed: ".......Issue Notice returnable on 29 th March, 2011. In the meanwhile, the officers of the respondents will not take any activity other than the survey and other preliminary works, if require. Direct service is permitted." 3.1. The respondents, in response to the notice issued by the Court after hearing the petitioners, have filed reply affidavit. 3.2. Along with the reply affidavit in Special Civil Application No.3444 of 2011, the respondent No.2 company also preferred, as mentioned earlier, a Civil Application being C.A.No.4104 of 2011 under clause-(3) of Article 226 of the Constitution of India and prayed that the interim relief granted vide order th dated 16 March, 2011, may be vacated. Operation of the said order was th extended from time to time and then on 26 March, 2011 the respondent No.2 company filed the application under Article 226 (3) of the Constitution of India. Subsequently i.e. after the respondent filed said application, the petitioner sought to add/raise some more grounds by amending the petition and for that purpose moved a draft amendment dated 11.4.2011 requesting permission to amend the petition by adding certain grounds and also additional prayer, by adding prayer 8(aa) in the memo of petition. 3.3. The petitioner's request to allow the draft amendment has been opposed by the respondent mainly on the ground that the draft amendment came to be submitted after it filed the aforesaid application under Sub-clause (3) of Article 226 of the Constitution of India and the time frame was about to expire. This Court taking note of said objection of respondent No.2 company heard the submissions of all the contesting parties with regard to relief, including interim relief prayed for, and also heard the petition on merits. 3.4. So far as the respondent's objection with regard to the draft amendment is concerned, it does not deserve to be accepted and/or upheld for diverse reasons, (a) it is necessary to note that the draft amendment was moved before the parties commenced the arguments and before any other or further order could be passed (b) the objection appears to have been raised solely out of apprehension that the petitioner moved draft amendment with a view to compelling the respondent to seek adjournment to respond to the amendment and thereby to frustrate the application under Article 226(3), it would not be justified to reject the draft amendment on account of such apprehension more so when it is moved at the initial stage and when it raises or proposes to add legal contentions and not any major or substantial fact unknown to the respondent (c) having regard to the fact that the petitioners have moved the draft amendment before the admission or disposal of the petition and contentions which are essentially based on provisions of the Act have been raised by way of draft amendment and although additional ground and challenge against the notification dated 5.1.07 has been added on the ground that the petitioners were never aware about the Notification and in the impugned public notice dtd.29.7.2010 there is no reference of the said notification, the petitioner was not aware about and/or in position to incorporate any contention or challenge against the said Notification, this Court is of the view that the draft amendment deserves to be and needs to be granted. Hence, on overall consideration I am of the view that the petitioner should not be denied the opportunity to raise all available contention. Therefore, the draft amendment is granted. Petitioner is allowed to amend the petition so as add ground 4(g) to 4(j) and para:8 (aa). The petitioner shall carry out the amendment. In the meanwhile the amendment is deemed to have been incorporated.;