Gujarat High Court
Rambhai Danumal Bhimani vs Ahmedabad Municipal Corporation on 6 September, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/253/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 253 of 2017
In SPECIAL CIVIL APPLICATION NO. 18111 of 2016
With
CIVIL APPLICATION NO. 1 of 2018
With
CIVIL APPLICATION NO. 2 of 2017
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RAMBHAI DANUMAL BHIMANI Versus AHMEDABAD MUNICIPAL CORPORATION ========================================================== Appearance:
MR CHINMAY M GANDHI(3979) for the PETITIONER(s) No. 1 MR MB GANDHI(326) for the PETITIONER(s) No. 1 MR SATYAM Y CHHAYA(3242) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 06/09/2018 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal, filed under Clause 15 of the Letters Patent, is directed against the oral order dated 20.10.2016 passed by the learned Single Judge in Special Civil Application No.18111 of 2016, by which the learned Single Judge has dismissed the petition.
2. The facts of the present appeal in nutshell are as under:
2.1 It is the case of the petitioner that the Page 1 of 14 C/LPA/253/2017 CAV ORDER petitioner is the owner of the property bearing City Survey No.1154/A/2 and 1154/C situated in Lambeshwar pol, Opp.Calicodome, Kalupur, Ahmedabad city. In the said building, there is a basement, ground floor, first floor, second floor and third floor. Electric connection was obtained for the said building since 1929 and property is very old. The petitioner purchased the property along with the building by a registered sale deed in the year 1999. As the construction of the said building was very old, repairing work was required. The petitioner, therefore, submitted an application to the respondent-Corporation in the prescribed format with necessary documents and plans and deposited the requisite fees. However, no permission was granted by the respondent-
Corporation. The petitioner, with a view to avoid any disaster or casualty, carried out the necessary repair work and therefore the respondent-Corporation issued the impugned notices alleging that the petitioner has carried out unauthorized construction.
3. The petitioner, therefore, filed the captioned petition in which he had prayed for the following reliefs:
"7.(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;Page 2 of 14
C/LPA/253/2017 CAV ORDER (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned illegal & arbitrary Notice dated 29/08/2013 (which is served by affixing at petitioner's property on 02/09/2013) bearing Reference Case No.Cshed/2013/CZ/0983 (Annexure-A), and all incidental & consequential proceedings thereto, pursuant to which the Petitioner's property is sought to be demolished by the Respondent, and consequentially be pleased to direct the Respondent not to demolish the property(building) of the Petitioner being Bhimani House, Kalupur-2, City Survey No.1154/A/2 + 1154/C, 624B, Opposite Calicodome, Lambeshwar Pol, Relief Road, Kalupur, Ahmedabad.
(C) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to pass order directing the Respondent to maintain status quo qua the property (building) of the Petitioner being Bhimani House, Kalupur-2, City Survey No.1154/A/2 + 1154/C, 624B, Opposite Calicodome, Lambeshwar Pol, Relief Road, Kalupur, Ahmedabad.
D) An ex-parte ad-interim relief in terms of Para (C) may kindly be granted.
E) Such other and further relief, as may be deemed just, fit, proper & necessary in the interest of justice."
4. The learned Single Judge, by impugned order, dismissed the petition and therefore the appellant-petitioner has filed the present appeal.
Page 3 of 14C/LPA/253/2017 CAV ORDER 5. Heard learned advocate Mr.Gandhi for the appellant-petitioner and learned advocate
Mr.Satyam Chhaya for the respondent-Corporation.
6. Learned advocate Mr.Gandhi submitted that as per the provisions contained in Gujarat Development Control Regulations (`GDCR' for short), no development permission is required for rebuilding an existing wall, repairing the wall including plastering the wall. Similarly, no such permission is required for changing roof tiles, increasing the height of the wall to change the slope of the roof and repairing the roof without increasing the existing room height. In fact, the petitioner has carried out the repair work by rebuilding/repairing walls and by changing roof type by using T-girders and under the advice and supervision of the structural engineer, for strengthening the structure and for providing extra support. In fact, the petitioner has wrongly submitted an application for grant of permission to the respondent Corporation.
7. Learned advocate Mr.Gandhi thereafter submits that the prescribed fees suggested by the respondent-Corporation was deposited, inspite of that, the respondent-Corporation failed to grant permission to the petitioner and therefore no Page 4 of 14 C/LPA/253/2017 CAV ORDER fault can be found with the petitioner while carrying out the repairing work. At this stage, it is submitted that after the impugned order is passed by the learned Single Judge, the respondent-Corporation has demolished the construction without authority of law and therefore appropriate direction be issued to the respondent-Corporation to reconstruct the property in question or direction be given to the respondent-Corporation to pay compensation to the petitioner.
8. Learned advocate Mr.Gandhi would thereafter submit that the stand taken by the respondent- Corporation that the property in question is heritage building is not correct and therefore no permission of Heritage Conservation Committee was required. In support of the said contention, learned advocate has placed on record the list of heritage buildings within the historic city of Ahmedabad. The said list was published in the year 2014. After referring to the same, it is pointed out that the survey number of the property in question is not mentioned in the said list. It is, therefore, submitted that the insistence on the part of the respondent- Corporation to get approval of Heritage Conservation Committee is misconceived. It is contended that the learned Single Judge has not Page 5 of 14 C/LPA/253/2017 CAV ORDER properly considered the aforesaid important aspects of the matter and dismissed the petition mainly on the ground that the petition under Article 226 of the Constitution of India cannot be entertained because of the conduct of the petitioner and no discretionary relief can be granted in favour of the petitioner. He, therefore, urged that the impugned order passed by the learned Single Judge be set aside and thereby this appeal be allowed.
9. Learned advocate Mr.Gandhi has placed reliance on Rule 11-A of the Rules framed by the Corporation while exercising powers under Section 456 of the Gujarat Provincial Municipal Corporation Act (`GPMC Act' for short). It is submitted that as per the said Rule, sanction was required to be granted by the respondent- Corporation for alteration, modification in the existing buildings linked with each other by common wall in the old fort and gamtal area within the limits of Ahmedabad Municipal Corporation.
10. On the other hand, learned advocate Mr.Satyam Chhaya appearing for the respondent-Corporation has opposed this petition and mainly contended that the petitioner had submitted an application for repair of the disputed property at the Page 6 of 14 C/LPA/253/2017 CAV ORDER relevant time. In view of the prevailing policy of the Corporation, old construction `within the walled city area' could have been repaired and/or strengthened with the help of T-girder. However, the said policy was discontinued by the respondent-Corporation on 19.8.2013. Subsequently, the said policy was again introduced from 30.11.2015 restricting to only residential units. Property in question is not a residential unit and is a commercial unit. It is submitted that under the guise of repairing work, certain persons started converting residential unit into commercial unit or under the guise of repairing work, they had started constructing new units and therefore earlier policy was discontinued. At this stage, it is submitted that the petitioner submitted an application on 6.8.2012 for repairing of building with the help of T-girder. At this stage, it is submitted that at the time when the application was submitted by the petitioner along with the plan, the property in question was forming part of the land of heritage structure and the same was identified as Grade-II-B category of the list. Thus, as per the relevant policy and prevailing GDCR, the opinion of the Heritage Conservation committee was mandatory. Thus, the opinion was sought for from the said Committee by the competent authority. It is submitted that the Chairman of the said Page 7 of 14 C/LPA/253/2017 CAV ORDER Committee vide communication dated 15.6.2013 informed the respondent-Corporation that the construction of the petitioner was found in fairly good condition and the repairs/reconstruction with T-girder was not permitted. The respondent-Corporation, therefore, informed the petitioner on 27.9.2013 that T- girder policy is discontinued and in view of the communication dated 15.6.2013 from the aforesaid Committee, such permission asked for by the petitioner cannot be granted.
11. Learned advocate Mr.Chhaya further submits that though the plan submitted by the petitioner was not approved, he had started the illegal construction and therefore the respondent- Corporation issued notice under Section 267 of the GPMC Act and the petitioner was directed to stop illegal construction. In spite of receipt of the said notice, the petitioner proceeded with the construction and therefore the respondent- Corporation issued notice under Section 260(1) of the GPMC Act on 2.9.2013 and final notice/order under Section 260(2) of the GPMC Act for demolition was thereafter passed on 10.9.2013. In spite of that, the petitioner proceeded with the construction and therefore seal was applied. The petitioner broke open the seal and therefore the complaint under Section 188 of the Indian Penal Page 8 of 14 C/LPA/253/2017 CAV ORDER Code was filed against him.
12. Learned advocate Mr.Chhaya thereafter would contend that the petitioner is trying to mislead this Court by submitting that under the information received under the Right to Information Act, the property in question is not shown as heritage structure in category of Grade- II/B. It is clarified that at the relevant point of time, the property in question was in the aforesaid list as heritage building. However, when the petitioner has removed the old structure and constructed the new structure on T-girder, in the list of 2014 published by the concerned authority, the same is not reflected as heritage building. Similarly, after the order dated 20.10.2016 passed by the learned Single Judge, even the structure put up by the petitioner is demolished by the respondent-Corporation and therefore said property is not reflected in the list of heritage building.
13. Learned advocate Mr.Chhaya therefore contended that looking to the conduct of the petitioner and in the facts and circumstances of the present case, the learned Single Judge has rightly refused to exercise the discretion in favour of the petitioner and therefore this Court may not interfere with the said order.
Page 9 of 14C/LPA/253/2017 CAV ORDER
14. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also gone through the material produced on record. It has emerged from the record that the property in question was purchased by the petitioner in the year 1994. The petitioner was aware about the relevant provisions of the GPMC Act and the provisions of GDCR and therefore he had rightly submitted an application to the respondent-Corporation for grant of development permission on 4.7.2012. Along with the said application, plan was also submitted. Thus, it is not correct on the part of the petitioner that plan under Section 253 and 254 of the GPMC Act was not required for carrying out repair/construction for the property in question.
15. It is further reflected from the record that vide communication dated 17.10.2012, the Deputy General Manager (heritage project) informed the petitioner that the property in question is within the list of heritage building and therefore the application of the petitioner is required to be placed before the said Committee and permission of the Committee is required. It was also stated in the said communication that the plan submitted by the petitioner is not as per the format sanctioned by the Committee.
Page 10 of 14C/LPA/253/2017 CAV ORDER Thereafter, once again on 21.3.2013, the
petitioner was informed that he has to submit the plan as per the sanctioned format and therefore he has to contact the concerned officer of the respondent-Corporation. It is required to be noted that on 15.6.2013, the Heritage Conservation Committee, after considering the material, observed that the building appears to be in fairly good condition and therefore dismantling and reconstructing with T-girder was not permitted. Further, by communication dated 27.9.2013, the Deputy Estate Officer (Central Zone) informed the petitioner that the permission cannot be given to him as the petitioner has produced T-girder plan. The petitioner was further asked to submit new plan as per GDCR 2021.
16. Thus, from the aforesaid documentary evidence, it is clear that the respondent- Corporation has specifically rejected the application given by the petitioner. Inspite of that, the petitioner has proceeded with the reconstruction of the property in question with T-girder. Therefore, the respondent-Corporation initially issued the notice under Section 267 of the GPMC Act and asked the petitioner to stop the unauthorized construction. Inspite of that, he had proceeded with the construction and therefore Page 11 of 14 C/LPA/253/2017 CAV ORDER the notice under Section 260(1) of the GPMC Act was issued to him. Thereafter, notice/order under Section 260(2) of the GPMC Act was passed. Even seal was applied to the property in question. However, the petitioner broke open the said seal and therefore the complaint under the provisions of the Indian Penal Code came to be filed against him. The petitioner was also aware that the property in question is heritage building and therefore he submitted an application on 19.11.2012 to the Municipal Corporation for grant of permission for repair. The said application is produced during the course of hearing of this appeal. The same is taken on record.
17. The learned advocate for the petitioner contended that the petitioner got the information under Right to Information Act that the property in question is not in the list of heritage building and as per the list published on 2014, the said property is not in the list of heritage building and therefore the action taken by the respondent-Corporation denying the permission was not correct. The said contention of the learned advocate is misconceived. It is required to be noted that the property in question was heritage building in the list published by the concerned authority. The said aspect can be reflected from the photograph produced at page 102 of the Page 12 of 14 C/LPA/253/2017 CAV ORDER compilation. However, the petitioner had demolished the said structure/construction and inspite of the denial of permission asked for by the petitioner, he had proceeded further with the reconstruction of the property in question. The said aspect is reflected from the second photograph produced at page 102 of the compilation. Thus, when the petitioner has reconstructed the building which is a new building, the said property is not reflected in the list of heritage building produced in the year 2014 or when the information was given in the year 2016 under RTI Act to the petitioner.
18. At this stage, it is required to be noted that the contention raised by the learned advocate Mr.Gandhi with regard to the provision contained in Rule 11A of the Rules is concerned, the reliance upon the said Rules is misconceived and the same is not applicable to the facts of the present case as the property in question was in the list of heritage building. Further, no such contention was raised before the learned Single Judge and for the first time the same is pressed into service at the time of hearing of this appeal.
19. In view of the foregoing discussion and in view of the reasoning recorded by the learned Page 13 of 14 C/LPA/253/2017 CAV ORDER Single Judge, we are of the view that the learned Single Judge has not committed any error while declining to exercise the jurisdiction under Article 226 of the Constitution of India. The appeal is accordingly dismissed. Consequently, civil applications also stand dismissed.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) SRILATHA Page 14 of 14