Gujarat High Court
Pranjivan vs State on 17 October, 2008
Author: C.K.Buch
Bench: C.K.Buch
Gujarat High Court Case Information System
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SCA/10169/2007 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10169 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PRANJIVAN
HARJIVAN PARMAR & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance
:
PARTY-IN-PERSON
for Petitioner(s) : 1 - 2.
MS DS
PANDIT, LD.ASST.GOVERNMENT PLEADER for Respondent(s) : 1,
MR
PRASHANT G DESAI for Respondent(s) : 2 - 3.
MR ADIL R MIRZA for
Respondent(s) : 4,
MR RR MARSHALL for Respondent(s) :
5,
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CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 17/10/2008
ORAL
JUDGMENT
Invoking jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner-Party-in-Person has prayed that this Court may issue appropriate writ, direction or order to the respondents, more particularly respondent nos.2 and 4 that the plan submitted by him may be approved with 5.4 mtrs. road-side front margin as shown in the plan (submitted and produced with present petition). A number of documents, plans and sketches have been produced during the course of hearing by the present applicant. Respondent no.2-Corporation has also shown certain maps approved by it in the area where the petitioner intends to erect his residential premises. Necessary permission has been accorded but the problem with the petitioner is that respondent no.2-Corporation is insisting to leave the margin of 7.5 mtrs. margin from the road-side.
I have carefully gone through the affidavits filed on behalf of respondent no.2, and other affidavits more particularly, the affidavit filed by the Senior Town Planner of respondent-AUDA. It would be beneficial to mention the stand taken by respondent no.2 qua the nature of reliefs prayed for by the petitioner in one of the affidavits. The relevant part of the affidavit says that vide Resolution dated 20th July 2007 passed by the Government of Gujarat, the area where the petitioner proposed to construct his house has been merged into respondent no.2-Corporation and pursuant to the said Resolution, respondent no.4-AUDA passed Resolution dated 05th October 2006 delegating powers to respondent-Corporation. The same was forwarded to the State of Gujarat with an amendment in Section 19 of the GDCR in Clause No.12.4.1(a)(1b), wherein the amendment was proposed to be made to the effect that the margin which is required to be kept open in a residential premises situated within the limits of respondent no.2-Corporation is 4.5 mtrs., be kept applicable for the permission applied prior to 14th February 2006 and for the rest of the premises, the persons who have applied after 14th February 2006, the margin of 7.5 mtrs. be kept. According to respondent no.2, the petitioners had not applied for sanction of plan prior to 14th February 2006, but there is a serious dispute as to whether the proposal forwarded by respondent no.4-AUDA has taken the shape of statute or not. There are two affidavits on behalf of respondent nos.2 and 3 i.e. Ahmedabad Municipal Corporation, and the concerned officer. I have carefully gone through the stand taken by respondent-Ahmedabad Municipal Corporation. On careful reading of the stand taken by respondent- Ahmedabad Municipal Corporation vis-a-vis the plan approved by respondent no.4-AUDA earlier and respondent no.2-Corporation in the area. It is relevant to note that the society where the petitioner intends to erect his house as per the plan submitted, specifically indicate that more than one plot owners have been permitted to construct the building leaving the road-side margin land of 4.5 metres. The width of the street/ road where the margin is required to be left is 34.38 metres. The width of the road has been determined by respondent no.4-AUDA at the time of finalising the relevant Town Planning Scheme. The photographs and map shows that the adjacent house of the petitioner is constructed without leaving the margin of 7.5 metres as insisted by respondent-Corporation in the present case. During oral submissions, Shri Prashant Desai, learned counsel appearing for the respondent-Corporation, has submitted to the Court that the petitioners had prayed for fresh construction and approval of plan as if the petitioners intend to erect the house on open plot de-novo and the persons who have been granted permission had placed the site plan as if they want to renovate their building. According to the petitioner, in reality, all these plot owners have started construction de-novo from its foundation itself. The allegation of the petitioners is that on account of some personal grudges, the officers of the respondent-Corporation are taking materially different stand. The petitioners are honest in submitting the plan. The idea of the petitioners was to construct the bungalow de-novo as a new construction and they were also aware that the proposal made to the Government was not at the relevant point of time crystallized as law. So there was no scope to show any obstinacy in the plan submitted by the petitioners because resultant effect was leading to some discrimination. The adjacent neighbour of the petitioners has been permitted to erect the house by leaving the margin in question as 4.5 metres, however, though the petitioners have left the margin of 5.4 metres, they are not granted permission.
It is rightly submitted by Shri R.R. Marshall, learned counsel appearing for the respondent-AUDA that after merger of respondent-AUDA into respondent- Ahmedabad Municipal Corporation, the dispute in question had not remained between respondent-AUDA and the petitioners. So no direction or writ may be issued to respondent-AUDA because the formal approval now has to be granted by the respondent- Ahmedabad Municipal Corporation. It is also submitted by Shri Marshall that when the administration of the area where the petitioners wanted to construct their house is situated was with respondent-AUDA, it was possible for the respondent-AUDA to consider the request of the petitioners to see that equity prevails. Ultimately, the width of the road, according to him, of 34.38 metres, is not insufficient. The map produced at page no.13 shows that practically all houses have the margin is 4.5 metres. So considering this fact situation, the respondent- Ahmedabad Municipal Corporation could have approved the plan not as a precedent but to see that nobody feels discriminated. If the time of filing of application for construction of the building is after the date referred to hereinabove, the respondent- Ahmedabad Municipal Corporation can legitimately insist that the margin has to be left as per the norms prescribed. However, those norms had not taken shape at least on the date on which the petitioners approached for approval of their plan.
True it is that the petitioners at present have constructed their building as if they are supposed to leave the margin of 7.5 metres, but it would not be appropriate for this Court to accept the say of Shri Prashant Desai that the petitioners have waived their right or they are now estopped from praying for the reliefs which have been prayed for in the present case by the petitioners. To avoid conflict with the Local Self Government, a person who wants to erect a building can keep his privilege in abeyance for some time presupposing the scope of some litigation. There is no need to discuss several sections as well as rules and regulations mentioned by the respondent-Ahmedabad Municipal Corporation in the reply affidavit because on facts the Court is of the view that this is a case where the respondent-Ahmedabad Municipal Corporation ought to have approved the plan as prayed for by the petitioners.
So without entering into further discussion, in view of aforesaid observations and discussion, present petition is hereby allowed. However, the petition is dismissed against respondent-AUDA as there is no legal obligation on the respondent-AUDA to approve the plan after merger of the area with respondent- Ahmedabad Municipal Corporation. Hence, no formal orders are required to be passed against the respondent-AUDA and the authorities of the respondent-AUDA which are joined as party in the present proceedings.
It is hereby ordered that the respondent- Ahmedabad Municipal Corporation shall approve the plan as submitted by the petitioners at the earliest, preferably within a period of 15 days from the date of receipt of writ of this Court, failing which the petitioners, after a period of 30 days, can proceed with the construction by leaving the margin of 5.4 metres as per the plan submitted by them, as if their plan is approved by the respondent- Ahmedabad Municipal Corporation.
The writ be issued to respondent nos.2 and 3 only.
(C.K. Buch, J) Aakar Top