Gujarat High Court
Pallavbhai Shishirbhai Choksi vs Ahmedabad Municipal Corporation on 17 January, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/23036/2019 ORDER DATED: 17/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23036 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 23036 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 23036 of 2019
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PALLAVBHAI SHISHIRBHAI CHOKSI
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MS ROOPAL R PATEL(1360) for the Petitioner(s) No. 1
ANGESH A PANCHAL(9138) for the Respondent(s) No. 6,7
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 17/01/2022
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioner, inter alia with the following prayers:-
"14[B] YOUR LORDSHIPS may be pleased to call for original file/documents from the official respondent(s) on which sanction of the plan etc. has been processed of the present building and after perusing the same, appropriate order(s) may be passed/direction(s) may be issued;
[C] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, order or direction under Article 226 of the Constitution of India declaring that, inaction/ommission/commission of the respondents is illegal, unjust, arbitrary and violative of Articles 14 and 21 of the Constitution of India and further to direct that official respondents either to demolish the illegal construction and/or set right the illegalities committed by the private respondents in constructing the building as narrated in the present petition and further be pleased to restrain the respondents to utilize the constructed building for the purpose of paying guest/student housing/service apartment;Page 1 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022
C/SCA/23036/2019 ORDER DATED: 17/01/2022 [D] YOUR LORDSHIPS may be pleased to grant an interim relief restraining the respondents to undertake further proceedings qua the said building including grant of B.U. permission during the pendency and final disposal of this petition before this Honourable Court, in the interest of justice;
[E] YOUR LORDSHIPS may be pleased to grant an interim relief restraining the private respondents from alienating, transferring or transacting the said building in any manner whatsoever during the pendency and final disposal of this petition before this Honourable Court, in the interest of justice."
[2] The challenge is the alleged illegal action on the part of the respondent-corporation in case of construction and usage of a building being made by the private respondents which has resulted in usage of the premises near the locality of the petitioner for ladies hostel which is a commercial usage and therefore, against the relevant provision of Town Planning and Municipal laws. [3] Learned advocate for the petitioner submitted that the plot in question is a plot No.3 (for short "subject plot") of Gokulpark Society, where one of the plot holders is the petitioner and these plots of the society are meant for dwelling unit. The subject plot was sold to respondent No.6, who in turn, handed over the possession to respondent No.7, who has demolished the residential bungalow and constructed multi-storied building. On behalf of Gokulpark Society, Right to Information application was made seeking information regarding the development permission under which such building was being constructed, however, no such information was provided and therefore, complaint came to be filed on 04.10.2019 with the Page 2 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 competent authorities of respondent-corporation. [3.1] That, the construction of seven storied building has taken place which is on the subject plot admeasuring 468 Sq.Yards and is on a road which is 40 feet wide. Therefore, the construction has been made in illegal manner and for illegal purpose. Such complaint was made by the petitioner and other 19 residents of the area. Learned advocate submitted that despite these illegalities were brought to the notice of the authorities and the authorities being responsible for preventing unauthorized and illegal construction, no action has been taken. The illegal purpose was also highlighted in daily newspaper, still no action was initiated and therefore, the present petition has been filed.
[3.2] Learned advocate submitted that on the plot it was advertised that the project was for student housing project which would be in the nature of paying guest and therefore, this activity would clearly fall in the definition of "commercial activity", which cannot be permitted in the residential area.
[3.3] It is submitted that even the use of the property for the purpose of students' hostel cannot be made applicable to this property as the hostel would be a place for accommodating the students within the campus of the educational institution. This not being so, activity will have to be termed as commercial activity. It is submitted that even the construction of the seven stories on 14 Page 3 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 meter wide road is also not acceptable norm of the respondent- corporation. It is submitted that if all the seven floors are to be occupied by accommodating students or paying guest there would be large scale activity which would be necessary for maintaining students or paying guest like parking, providing food, staff for maintenance etc, and this would be real nuisance to the residents in the area. Thereafter, learned advocate has also indicated that there were several flaws while putting up the construction as no required details were provided at the site.
[4] As against this, learned advocate for the respondent-corporation submitted that the respondent authorities received an application for development permission in 2018 and the respondent undertook the scrutiny and after scrutiny came to the conclusion that the development permission application was in order and in compliance with GDCR dated 12.12.2017. The authority also ascertained the veracity of the documents alongwith the application which were also found in conformity with the GDRC. The application was therefore, forwarded to the Town Development Officer and Building Plan Scrutiny Pool which was scrutinized by the authority of the respondent No.5-corporation and having satisfied the same in conformity with the GDCR guidelines, the plan was approved. After being approved, the application for development permission was granted and respondent No.7 was issued commencement letters/Raja Chiththi dated 06.11.2018 for development of a hostel Page 4 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 building over the subject plot.
[4.1] It is submitted that on the basis of the affidavit filed on behalf of respondent No.5 that respondent No.5 had conducted periodical visit over the subject plot so as to ascertain whether the construction is made in conformity with the approved plan and as to whether the respondent No.7 has necessary permission from authorities like Fire Department as well as licence to operate lift. It was also ascertained that on payment of requisite charges, an additional FSI was also granted for the construction. The development permission therefore, was as per the relevant provisions and after following due process of law. [5] Learned advocate appearing for respondent Nos.6 and 7 submits that the petition is a motivated petition only on the basis of apprehension that in case of the usage of the premises for hostel, the peace of the area would be disturbed. It is submitted that several allegations made in the petition are factually incorrect and misconceived and can be termed to be irresponsible statements only with a view to prejudice the Court against the respondent No.7. [5.1] It is submitted that the development permission granted as per the requirement of law and respondent No.7 has received all the necessary permissions for developing the plot which includes the certificates under fire safety and B.U. permission of development being in conformity with the development permission granted. Page 5 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022
C/SCA/23036/2019 ORDER DATED: 17/01/2022 [5.2] It is submitted that the petitioner has made reckless allegations in the petition with regards to the eruption of illegal building in Goyal Park Society. The petitioner has not produced anything to substantial to evidence the same. It is submitted that the competent authority on 06.11.2018, in pursuance of the applications made by the respondent No. 7 has approved plans for construction of seven story building on a 40 feet road with basement vide Rajachitthi No.00503/261018/A0511/RO/M1. The respondent No.7 has applied for Building Use Permission on 16.01.2020 and has also paid the Plan and Building Scrutiny Fee, BU Smart Card Fee and Water Meter Fee and charge on 16.01.2020. Thereafter, two inspection visits for building Use Permission have also been carried out by the officers of the Ahmedabad Municipal Corporation from 16.01.2020 ti 21.01.2020. The respondent No.7 has made all payments regarding FSI charges and other miscellaneous charges to the AMC.
[6] The issue before the Court which was primarily argued is about the usage of the subject plot for non-residential purpose and commercial activity and another issue being grant of permission to construct seven storied building on the subject plot, which is lying on the 40 feet road.
[7] The Court has considered the rival submissions of the parties and perused the documents placed on record. From the pleading it appears that in October-2018, the corporation received an Page 6 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 application for development permission from the respondent No.7 as it was desirous of developing the land situated at Sub plot No.3, Final Plot No.295, Town Planning Scheme No.20, Gulbai Tekra. [7.1] The respondent No.7 had submitted documents such as certificate of undertaking structural safety requirements, certificate of architect, undertaking to comply with the development regulations, certificate of the structural engineer, the licence of the developer etc. The respondent No.7 has also paid the necessary charges and fees, i.e. charges for drainage connection, water connection, plan and building scrutiny fee, tree plantation fee, and such other fees and charges payable.
[7.2] The respondent No.7 sought development permission for the purpose of constructing a residential hostel on the subject land. Alongwith the said application, respondent No.7 submitted a building plan for the proposed hostel building. As per the said building plan, the proposed hostel building included a basement, 7 floors, a stair cabin, as well as, an overhead water tank and the same was to be constructed upto a height of 25 meters. [8] From the pleadings, it appears that the construction of a "hostel", falls under the category of "Dwelling-3",as per the clause 7.4 of the GDCR Guidelines. Hostel is defined under clause 30.105 of the GDCR Guidelines, as well as, the same falls under the category of residential use, as per clause 30.211 of the GDCR Guidelines. The construction of 'hostel' is permitted in Residential Zone-1, as per Page 7 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 clause 7.3 of the GDCR Guidelines. The construction of "hostel" is permitted on a 12 meter road, as per clause 7.3 of the GDCR Guidelines. In view of the above, the construction of the hostel, b y respondent No.7, on the subject land is not in violation of the GDCR Guidelines.
[8.1] Clause 7.6.1 of the GDCR Guidelines permits hostels to be constructed on a road having width of 12 meter. Moreover, Clause 8.3.1 provides for the maximum permissible building height, wherein, on a road having width of 12 meter, the permissible height of the building is 25 meters.
[9] The Court has also examined the issue raised with regards to the margin around the construction, wherein it is being alleged that on four sides of the building only 10 feet margin is kept open as against the required 15 feet margin. However, as per Clause 8.4.2, the required margin is 3 meters on the road side margin and 4 meter on the rear side as per Clause 8.4.4. The plan sanctioned is accordingly for leaving the margin as provided. Reference can be made to the table under Clause 8.4.1 of the GDCR, 2017.( on page 135) [9.1] The issue with regards to the parking also is provided as per Clause 8.1 of the GDCR. Apparently respondent No.7 has allotted parking in addition to the requisite parking as is provided under the sanctioned development permission. Rest of the allegations with regards to breach of any building byelaws have been verified by the respondent-corporation on physical verification and having found Page 8 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 the same in conformity with the relevant GDCR.
[10] The other issued raised by the petitioner with regards to usage of the building for commercial purpose. It is necessary to refer to the table 7.3.1 which prescribes the Use of Zone and Permissible Uses for D1 to D7 (A) and D7(B) category. In the said table, in S.R.No.4 is "Residential 1," where the uses prescribed as is use "Industrial 1,2,3 and 4" and "Agricultural 1, 2, and 3." The table 7.4 itself for "Use Classification" prescribes type of use of building which are grouped so as to have classified used, wherein in at Sr. No.3 each use classified as Dwelling-3 includes common use as Apartment, Hostel, Dharmashala, Cottage Industry, Pre-School and Affordable Houses. Considering the zone in which sub plot is falling, it cannot be said that the use of the sub plot for the purpose of hostel is prescribed.
[11] The attempt being made on the conclusion of argument by learned advocate for the petitioner regarding usage not being in conformity with the Regulation for Providing Hostel and Paying Guest Accommodation Bill, 2017, by submitting that the facility provided on the subject plot is not falling in the definition of "hostel" as the hostel would include not only a place for providing sleeping accommodation, but also cooking and dining facility to provide inexpensive food and lodging. In the instant case, the nature of construction put up does not suggest to provide inexpensive lodging facility, in expensive dining facility, in fact the accommodation can Page 9 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022 C/SCA/23036/2019 ORDER DATED: 17/01/2022 be treated to be like that provided in a hotel unit. This argument cannot be sustained in as much as the aforesaid definition if to be accepted is in "Regulation to Provide Hostel and Paying Guest Accommodation Centers Bill, 2017" and there is nothing on record to indicate that such bill has taken a form of statute and till such time, the Court is not inclined to examine the issue that is raised. Moreover, the question which the petitioner now seek to raise would lead to raise several questions of law which are disputable and would certainly need leading of evidence, which exercise, the Court is not inclined to undertake at this stage.
[12] In view of the forgoing reasons, the Court is not inclined to interfere in this petition which apparently is against the usage of subject plot for the purpose of hostel which is as submitted by learned advocate for the respondent No.7 is providing hostel facility exclusively for the ladies who are either students or young girls who are having jobs and using the same as paying guest. [13] With the aforesaid, the petition deserves to be and the same is hereby dismissed.
[14] In view of the order passed in the main matter, all the other connected Civil Applications do not survive. Hence, the same stand disposed of accordingly.
(A.Y. KOGJE, J) SIDDHARTH Page 10 of 10 Downloaded on : Sun Apr 24 09:52:53 IST 2022