Gujarat High Court
Punyapal Ashokkumar Shah vs State Of Gujarat on 10 February, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/6746/2015 ORDER DATED: 10/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6746 of 2015
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PUNYAPAL ASHOKKUMAR SHAH
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR AYAAN PATEL, AGP for the Respondent(s) No. 1,2
MR BM MANGUKIYA(437) for the Respondent(s) No. 5
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 3
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,4
SERVED BY RPAD (N) for the Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 10/02/2022
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed for following relief(s):-
"8 (a) Admit and Allow this petition.
(b) Issue appropriate writ, order or direction to the respondent no.1 and 2 to take appropriate action against President, Valsad Nagarpalika under the provisions of Gujarat Municipalities Act.
(c) Issue appropriate writ, order or direction to quash and set aside the action of Valsad Nagarpalika of accepting impact fee of Rs.2,32,800/-
from respondent no.5 in respect of Final Plot No.100 and 101 and further be pleased to direct the respondent no.2 to demolish the illegal and unauthorized construction made on the public road margin land.
(d) Issue appropriate writ, order or direction to the respondents to immediately comply with the directions issued by the Collector, Valsad in order dated 15.02.2017 in CH/CTS/Breach of Condition 4 / 2004.
(e)..
(f).. "
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2. The grievance of the petitioner appears to be that the respondent no.5 which is an Agricultural Produce Market Committee has made a construction which is illegal and not as per the plan sanctioned for development. Despite this, illegal construction has continued to exist.
3. Learned advocate for the petitioner has submitted that the Collector way back in the year 2007 has given a categoric finding regarding the existence of construction illegally on the margin land and that too a margin land on the road.
4. It is submitted that the Chief Officer of Nagarpalika has accepted the impact fee by wrongly applying the provisions of Gujarat Regularization of Unauthorized Development Act, 2011 (hereinafter referred to as "GRUDA") and has disregarded the observations made by the Collector.
5. It is submitted that the order of the Collector was not disturbed at any stage and in fact, in a challenge before the S.S.R.D, the observations made by the Collector were confirmed and directions were given to undertake some proceedings which also the respondent authorities have failed to do.
6. Learned advocate for the petitioner tried to bring to the notice of this Court several round of litigation on order passed by the Collector, but nowhere the respondent-corporation or the authorities have succeeded, and therefore, it was obligatory for them to remove the unauthorized construction made on the road margin land.
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7. Learned advocate for the petitioner has submitted that the conduct of the respondent authorities may be seen, as apparently they are acting hand in glow and though there is clear cut direction of the Collector to fix the responsibility of the erring officers, nothing is done in that connection.
8. Learned advocate for the petitioner has made feeble attempt to submit that the construction is actually on public road, and therefore, by considering various pronouncements of this Court including the pronouncement by the Division Bench, which has held that no construction on margin land or road can be regularized. Despite this, the Chief Officer has acted against the provisions of law.
9. As against this, the learned advocate for the respondent- Nagarpalika submitted that the Chief Officer has strictly acted in accordance with the provisions of GRUDA and after examining the application made, has passed necessary orders of regularizing the unauthorized construction by accepting the impact fee.
10. It is submitted that while considering such application, the Nagarpalika is required to undertake the exercise of ascertaining the unauthorized constructions and regularize the same as per the provisions of law, and therefore, whatever observations may have been made in connection with unauthorized construction by any quashi judicial authority then also, if such construction is falling within the norms covered under the provisions of the GRUDA, the Nagarpaliak has to proceed and consider the same which in the present case, it has been done by accepting the impact fee.
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11. Learned advocate has, thereafter, drawn attention of this Court to the application made by A.P.M.C, wherein the details regarding the existing construction permitted and additional construction, which was allegedly unauthorized are mentioned and ultimately, the certificate dated 15.01.2014 being issued by accepting the impact fee of Rs.2,32,800/- and regularizing the same.
12. Learned advocate for the respondent-A.P.M.C has submitted that the respondent-A.P.M.C is a public body for the betterment of the agriculturist and will not have any personal interest in functioning of A.P.M.C.
13. It is submitted that the petitioner himself has no locus to file the petition and in fact, if aggrieved, then it is open for him to file an appeal under the provisions of GRUDA which he has not done even within the prescribed time limit.
14. It is submitted that the petitioner is a busy body and a reporter and though he has no interest in the functioning of the A.P.M.C or oblique purpose, the litigation after litigation is initiated by him.
15. In rejoinder, the learned advocate for the petitioner vehemently submitted that the construction is on the public road, which are used by the residents of Valsad City.
16. Considering the submissions made by the learned advocate appearing for the parties and having perused the documents on record, the scope of petition appears to be to the extent of the Page 4 of 7 Downloaded on : Sun Apr 24 12:29:19 IST 2022 C/SCA/6746/2015 ORDER DATED: 10/02/2022 action of Nagarpalika to accept the impact fee and regularizing the construction on Final Plot No.100 and 101.
17. The submissions of learned advocate for the petitioner with regard to construction being on public road does not appear to be the fact which is established on record. The reliance placed by the petitioner on the observations made in the order of 2007 by the Collector only indicate the existence of construction on the margin area of 4.5 mtrs and 3 mtrs, respectively on the side of the existing road, but does not indicate any construction on the public road. Even the notice and the photographs which the petitioner has tried to show to the Court by screen sharing, in the opinion of the Court, would not conclusively lead the Court to believe that the construction is made on the public road. Therefore, submissions made with great vehemence that the construction, which is now regularized by the order of the Chief Officer of Nagarpalika on public road is not accepted.
18. The Court has taken into consideration the documents produced by the Chief Officer along with his reply which indicates that the notice was published in the newspaper on 02.06.2013 regarding regularization and such notices were issued as per the communications dated 01.04.2013 and 04.04.2013. The application from the A.P.M.C was received on 13.08.2013 for regularizing the unauthorized construction and such application was replied by the letter dated 29.12.2013. Thereafter, the additional construction was regularized by accepting the impact fee of Rs.2,32,800/-. The Court finds that there is no allegation with regard to the procedure that was adopted by the Chief Officer while accepting the application and issuing the certificate under the provisions of GRUDA, as there Page 5 of 7 Downloaded on : Sun Apr 24 12:29:19 IST 2022 C/SCA/6746/2015 ORDER DATED: 10/02/2022 was no procedural lapse alleged and also the Court having found on the basis of documents produced that necessary procedure has been adopted, no fault can be found in the declaration made by the Chief Officer under the provisions of GRUDA.
19. In so far as the allegation with regard to inaction on the part of the respondent authorities despite the directions by the Collector and observations by the SSRD while remanding the matter back to the Collector to affix the responsibility and to initiate any proceedings in case any other unauthorized construction is found beyond the construction which is authorized, the Court observes that such contention would be beyond the scope of the petition and in any case too late in a day for this Court to examine especially when all these aspects are greatly disputed on facts by the respondent-corporation as well as the A.P.M.C.
20. With regard to the submissions made on the conduct of the Officer to have acted hand in glove, the Court observes that the petition as well as the affidavit-in-rejoinder and documents annexed thereto do not indicate in specific manner as to how the allegations so made can be substantiated. In view of lack of any material particulars in this regard, the Court is not inclined to examine this issue on the basis of oral submissions made while hearing the case .
21. Over and above this, when there is a statutory provision available for preferring an appeal by the aggrieved party, against the decision of authorities to regularize unauthorized construction by accepting impact fees, which enjoin upon the appeal board to examine threadbare. Therefore the issues with Page 6 of 7 Downloaded on : Sun Apr 24 12:29:19 IST 2022 C/SCA/6746/2015 ORDER DATED: 10/02/2022 regard to unauthorized construction, the process, the existence of unauthorized construction etc., the Court is not inclined to examine the same in view of the efficacious alternative remedy.
22. It is brought to the notice of the Court that one of the party, who is aggrieved by the order of regularizing the unauthorized construction as preferred an Appeal no. 362/A/2014 under Section 12 of the GRUDA.
23. Considering the fact that such appeal is still pending and that it may still be open for the petitioner to prefer an appeal in accordance with law, the Court is not entering into the aspect of whether the regularization order by the Chief Officer is as per the provisions of law.
With the aforesaid observations, the present petition stands dismissed. Notice is discharged. Interim relief, if any, stands vacated.
(A.Y. KOGJE, J) GIRISH Page 7 of 7 Downloaded on : Sun Apr 24 12:29:19 IST 2022