Gujarat High Court
Harunbhai Kaderbhai Malkani vs Chairman, Gujarat Housing on 21 October, 2024
NEUTRAL CITATION
C/SCA/10681/2024 ORDER DATED: 21/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10681 of 2024
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HARUNBHAI KADERBHAI MALKANI
Versus
CHAIRMAN, GUJARAT HOUSING & ORS.
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Appearance:
MR AZIZ AN ALVI(1366) for the Petitioner(s) No. 1
MR MOHAMMADZAID M SHAIKH(13938) for the Petitioner(s) No. 1
MR G.H.VIRK, LD.GOVERNMENT PLEADER WITH MS SIMRANJIT VIRK,
ADVOCATE WITH MS NENCY SHETH, ADVOCATE for Respondent Nos.2 and 3.
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 21/10/2024
ORAL ORDER
1. This petition is filed challenging the notice dated 10.07.2024 issued by respondent No. 2- Gujarat Housing Board, under which the petitioner was directed to remove unauthorized construction of Ibadat Khana, situated in the land/ common plot of the Memon Colony 192 LIG in the vicinity of Bharat Nagar of Bhavnagar.
2. Facts in brief, as referred in the petition, are as under:
The petitioner is a resident of 192 LIG colony constructed and developed by respondent No.2 - Gujarat Housing Board (for short "GHB") at Bhavnagar. Subsequent to its development as residential premises, the same at the relevant Page 1 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024 NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined time was allotted to various persons who are at present residents of this colony, wherein, the petitioner is one of the residents in the said colony.
2.1 The colony is situated far from the city of Bhavnagar and respondent No.1 had at the relevant time allotted houses to present occupants, by entering into lease deed. It is the case of the petitioner that the said colony was constructed in the year 1980 and a Masjid/ Ibadatgah was constructed in the year 1989. The said Masjid/ Ibadatgah was constructed with the consent of the residents of the said colony as there was no place of worship available to the residents of the colony in the nearby area. The Masjid was constructed after passing of resolution by the members of the colony and only for the purpose of offering prayers.
2.2 After construction of Masjid/ Ibadatgah in the year 1989, Respondent Nos.2 and 3 issued Notice dated 10.07.2024, to the colony directing to demolish Masjid/ Ibadatgah. Vide Notice dated 10.07.2024, seven days' time was given to remove unauthorized construction failing which, it was directed to be demolished by the authority. Aggrieved by the Notice dated 10.07.2024, present petition is filed.
3. Learned advocate for the petitioner submitted that as Page 2 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024 NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined stated in the petition, the petitioner is a resident of the Memon Colony 192 LIG in the vicinity of Bharat Nagar at Bhavnagar. The petitioner is a lease holder in the subject colony. By passing the resolution, Masjid/ Ibadatgah was constructed in the common plot with the consent of residents of the said colony for religious purpose. The purpose for this construction was because there was no place of worship available for their prayers. It is submitted that for Municipal Taxes, Electricity Bill and other taxes are paid on regular basis by the residents for their respective units and therefore they are the owners. In support of his submission, learned Advocate placed reliance on bills of electricity and taxes paid by them to justify the ownership. The decision taken to construct the Masjid/ Ibadatgah on the common plot of the property, was taken by passing a resolution, which is on record at Annexure "B". Learned Advocate submitted that considering their ownership as also the construction done after passing of the resolution, action of the respondents by issuing Notice being unjust and illegal, deserves to be quashed and set aside. Most importantly, the colony is ready to make an application seeking regularization of illegal construction by payment of impact fees and penalty. Regularization of construction is permissible under the Gujarat Regularisation of Unauthorised Development Act No.1 of 2023 (for short "GRUDA Act").
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4. Learned Government Pleader Mr. G.H. Virk on advance copy, appeared on behalf of respondent Nos.2 and 3 and submitted that respondent No.2 is a statutory body constituted under the provisions of the Gujarat Housing Board Act, 1961. The petitioner is a lease holder of the subject property and ownership lies with the Gujarat Housing Board and only by developing the land, the colony was constructed in the year 1980 and thereafter, allotted by way of lease agreement to the members of the colony. From the petition, it is not clear as to who has constructed the said Masjid/ Ibadatgah in the year 1989 and under what capacity. From the averments made in the petition, it is evident that the said Masjid/ Ibadatgah was constructed in the common plot of the colony that too by passing of resolution by the residents of the said colony, which is annexed at Annexure "B" (Pg.10). Learned Government Pleader submitted that the said resolution has no value in the eye of law since the ownership lies with the Gujarat Housing Board and therefore, the present petition is not maintainable as the petitioner is not the owner of the said land over which the illegal construction is made. The petitioner not being owner of the said property, the provisions of the GRUDA Act, 2023 will have no application in the present case.
5. Apart from the above submissions, learned Government Pleader Mr. Virk invited attention of this Court to Section 8 of Page 4 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024 NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined the GRUDA Act and submitted that regularisation of unauthorised development shall not be permitted in the case when the land belongs to the Government, local authority or statutory body. Section 8 of GRUDA Act 2023, further provides that regularisation of unauthorised development shall not be permitted when the land was allotted by the Government for specific purpose. In this case, as per clause (a) of section 8, the land belongs to the statutory body i.e. respondent No.2 and the same was allotted to be used for "common purpose". Therefore, on merits also, the petitioner is not entitled for regularisation by making an application under the GRUDA Act. Therefore, on both counts, the present petition deserves to be rejected.
6. Considered the submissions and documents on record. It is noticed that this Court on 24.07.2024 had permitted the petitioner to place on record the relevant documents substantiating his grievance. In response to the permission granted, few conveyance deeds entered into between the residents of the colony and Gujarat Housing Board have been placed on record. In one of the conveyance deeds dated 11 th October 2012, entered into between Gujarat Housing Board as first part and Shri. Harunbhai Kadarbhai Mokani, as second part wherein covenants (e), (f) and (g) read as under:
Page 5 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined "(e) The Board here by agrees that it shall subsequent to the above mentioned date and so on from time to time thereafter, at the end of each successive term of ninety nine years shall grant at the request and cost of the second party and extend the term of lease-hold rights for a further period of ninety nine years, so as to be co-terminus with the period of the Lease-Deed for the said land on which said building in which the said flat is situated.
(f) The party of the second part shall have the right of use of common portions and common service along with other occupants of the building subject to the constitution of the Association or Society, as the case may be of which he/she is the constituent member;
(g) The conditions stipulated in the Registered Agency Agreement, dated --- shall continue to form part of these present till the Registered Agency executes necessary Lease-Deed at the end of the Hire Pürchase period of the Registered Agency; that the lease deed by which the Building containing the said flat or house of the Second party stands shall apply mutatis mutandis to this conveyance and the party of the Second part shall be bound to observe them, and shall not do or permit anything to be done in contravention of the said conditions."
From the said conveyance deed, it is evident that the petitioner is a "lease holder" of the flat allotted to him situated in 192 LIG, Bhavnagar. Thus, it cannot be ignored that the petitioner is not the owner of the subject property but only a lease holder in respect of the flat allotted to him.
7. Further, from the averments made in the petition, it is evident that though the colony was constructed in the year 1980, the Masjid/ Ibadatgah was constructed in the year 1989 by passing a resolution by members of the colony. Admittedly, Page 6 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024 NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined no permission was sought prior to the construction of Masjid/ Ibadatgah. The purpose mentioned in the resolution was to offer prayers as there was no place available to them to offer their prayers in nearby area. Thus, from the above facts it is evident that Masjid/ Ibadatgah was constructed on the land, owned by the respondent No.2- Gujarat Housing Board. Therefore, the contention that residents/ occupiers of the colony are owner of the subject property is misconceived.
8. Moreover, in the opinion of this Court, reliance placed on the provisions of the GRUDA Act, 2023 is also misconceived. It would be apposite to refer to the following sections of GRUDA Act, 2023.
Section 8 of the Act provides for circumstances, in which the unauthorised development shall not be regularised, which reads as under:
"8. (1) Notwithstanding anything contained in this Act, an unauthorised development shall not be regularised in a case where unauthorised development is carried out on any of the following lands, namely:
(a) land belonging to Government, local authority or statutory body;
(b) land acquired or allotted by the Government, local authority or statutory body for a specific purpose;
(c) land under alignment of roads indicated in development plan or a town planning scheme or under alignment of a public road:Page 7 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024
NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined
(d) land designated or reserved under a development plan or a town planning scheme;
(e) water courses and water bodies like tank beds, river beds, natural drainage and such other places;
(f) areas earmarked for the purpose of obnoxious and hazardous industrial development;
(g) playground attached with the educational institution."
Section 10 of the GRUDA Act provides for circumstances, under which the unauthorised construction may be regularised, which reads as under:
"10. Subject to the rules framed under this Act, the Designated Authority may regularise any unauthorised development in respect of the following matters, namely: -
(i) Margins,
(ii) Built up area,
(iii) Height of building,
(iv) Change of use, (V) Common plot subject to limit of fifty per cent coverage and of permissible use only,
(vi) Covered Projection,
(vii) Parking, subject to the further condition that the occupier or owner shall provide parking at least fifty per cent. of the requirement as per CGDCR in unauthorised development and where it is not so feasible, in a place owned or occupied by himself or in case of more than one applicant, within such distance not exceeding five hundred meters from the unauthorised development as directed by the Designated Authority. For the rest of the fifty per cent. parking required, the compounding shall be permissible at the prescribed rates.
(viii) Sanitary facility, subject to the condition that the Designated Authority is satisfied that the sanitary facility provided is adequate;
(ix) such other matters which the State Government may Page 8 of 9 Uploaded by DIPTI PATEL(HC00191) on Wed Oct 23 2024 Downloaded on : Wed Oct 23 21:43:14 IST 2024 NEUTRAL CITATION C/SCA/10681/2024 ORDER DATED: 21/10/2024 undefined prescribe."
9. From the reading of Section 8(a) of GRUDA Act, it is amply clear that regularisation shall not be permitted in case where unauthorised development is carried out on the land belonging to the Government, local authority or statutory body. In this case, it is evident from the records that the land in question belongs to respondent No.2, a statutory body.
10. Further, Section 10(v) permits regularization in respect of common plot to the extent of 50%, if used for the purpose for which it was permitted. In this case, common plot was not given for construction of Masjid/ Ibadatgah, which was constructed in the year 1989 without prior permission of the concerned authority. Hence, the impugned Notice is rightly issued directing to remove the construction, failing which, the same shall be demolished by the respondent authority.
11. In view of the above clear provisions, this Court does not find any merit in the petition and, the same is hereby rejected. The respondent authorities are permitted to take action in accordance with law.
(MAUNA M. BHATT,J) DIPTI PATEL...
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