Gujarat High Court
Hansaben Ratubhai Prajapati vs State Of Gujarat on 26 April, 2023
Bench: A.J.Desai, Biren Vaishnav
C/LPA/526/2023 ORDER DATED: 26/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 526 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 4216 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/LETTERS PATENT APPEAL NO. 526 of 2023
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HANSABEN RATUBHAI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
MR. CHINTAN A JANI(7168) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
for the Respondent(s) No. 3
MS SHRUTI P. PATHAK, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR M.R. BHATT, SENIOR ADVOCATE WITH
MR AKASH N SHAH(10130) for the Respondent(s) No. 4
MR G H VIRK, ADVOCATE WITH MR SIMRANJITSINGH VIRK,
MR PRASHANTH AND MS NENCY SHETH, ADVOCATES for the
Respondent(s) No. 2
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 26/04/2023
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)
1. By way of this appeal under Clause 15 of the Letters Patent, the original petitioners / appellants have challenged an oral order dated 11.4.2023 passed by the learned Single Judge Page 1 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 in Special Civil Application No.4216 of 2023, by which the petition filed by the present appellants seeking issuance of writ of mandamus or any other writ or directions quashing and setting aside the action of the redevelopment of the houses/flats situated at premises being 132, M.I.G., (o/o. 384 MIG), Surya Apartment Vibhag-3, Sola Road, Ahmedabad as well as to quash and set aside the order dated 6.2.2023 passed by the Competent Officer of Gujarat Housing Board in Case No.103/2022, by which the original petitioners / appellants were asked to vacate the premises for exercising powers under the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972.
2. The short facts giving rise to the present appeal are as under.
2.1 The appellants / original petitioners, 14 in number, who were occupying the dwelling houses in a society viz. Surya Apartment Vibhag-3, having 132 units and it was originally granted to the allottees by Gujarat Housing Board for last more than 38 years. The association of the Page 2 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 society passed a resolution dated 1.12.2019 to go for redevelopment of public housing scheme, for which the guidelines came to be issued in the year 2016. The association of Surya Apartment had made a request to Gujarat Housing Board for redevelopment. The said resolution dated 7.12.2019 was passed by more than 75% of the members. In the month of October 2021, the Gujarat Housing Board issued a tender, for which the said tender was accepted which was submitted by respondent No.4. As per the terms and conditions of the said tender, a tripartite agreement came to be executed on 12.8.2022 between the association of the first part, Gujarat Housing Board of the second part and Katira Construction Limited being party of the third part. Respondent No.4 developer agreed to carry out redevelopment as per the prevailing bye-laws of Ahmedabad Municipal Corporation and Gujarat Development Control Regulations. It was agreed that all the dwelling unit owners shall be provided residential units access, in which they are in possession. As per the agreement and in accordance with the Page 3 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 guidelines for 2016, the developer has agreed to grant more space to the extent of 140% than the existing one and has thereby to follow the guidelines and to pu up a construction as per the GDCR.
2.2 Out of 132 dwelling unit holders, 118 dwelling unit holders vacated the premises. Since the appellants / original petitioners had not vacated, the proceedings were initiated under the provisions of Section 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 read with Section 60A of the Gujarat Housing Board Act. Being aggrieved with the said decision, the petition came to be filed.
2.3 The learned Single Judge, at the time of first hearing of the Special Civil Application after recording the submissions made by learned advocate who appeared before the learned Single Judge, issued a notice which was made returnable on 20.3.2023. Gujarat Housing Board filed the affidavit and opposed the petition. 2.4 Considering the observations made in the order Page 4 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 dated 7.3.2023 which was issued by the learned Single Judge at the time of issuing notice, an additional affidavit dated 25.3.2023 was also filed, by which the Gujarat Housing Board had produced relevant documents in connection with the submissions made by learned advocate for the petitioners and observed in the order of notice.
2.5 After having heard learned advocates appearing for the respective parties, the petition came to be dismissed. Hence this appeal.
3. Mr. Bharda, learned advocate appearing for the appellants, at the outset, submitted that they have no reservation against the development. However, the development, which is permitted by the Gujarat Housing Board, is contrary to the guidelines issued by the Urban Development and Urban Housing Department, Government of Gujarat which was issued in the year 2016 and upon which present development is sought to be made at the instance of the Gujarat Housing Board and the private respondents. He has specifically Page 5 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 stated that the original petitioners / appellants are in minority since more than 91% of dwelling unit holders of Surya Apartment Vibhag-3 have agreed for redevelopment. He would submit that as per the scheme of 2016 where the residential society is being redeveloped, only new apartment can be permitted to be constructed, wherein in the present development scheme, the Gujarat Housing Board has permitted the development to construct shops which are used of commercial purpose.
4. By taking us through the object regarding the said guidelines, he would submit that the object of the said authority is to upgrade existing housing stock, to create additional affordable housing stock wherever possible, to utilise available land in optimal manner and to improve neighbourhood at no or minimal cost to the Government. He would submit that where a redevelopment takes place on public housing scheme, three components are required to be kept for consideration viz. redevelopment of existing public housing scheme; creation of additional affordable housing stock; and free sale component. He would submit that as per clause 3.1(d), only in such scheme, Page 6 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 commercial activities can be permissible if in the old society similar types of activities are in existence. He would, therefore, submit that the scheme floated by the Gujarat Housing Board is required to be quashed and set aside.
5. By taking us through the tripartite agreement and particularly clause 6 of the said agreement, he would submit that Gujarat Housing Board has permitted the developer to sell the units as well as shops which would be constructed and after allotting the dwelling units of 132 members of Surya Apartment Vibhag-3. He would submit that granting such permission, the Gujarat Housing Board is not going to get anything and it would be a great loss to a government undertaking.
6. Mr. Bharda, learned advocate has argued that no details have been submitted by the Gujarat Housing Board about the scheme. However, he was confronted by learned advocate appearing for the respondent by taking us through an affidavit filed by the Gujarat Housing Board on 20.3.2023, by which all the details have been supplied. He would submit that the appellants had not supplied the said affidavit and, therefore, he Page 7 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 is not aware about the said affidavit and he has apologised before this Court for not producing the said affidavit in the papers of appeal though it is a part of writ proceedings. The said apology has been made by him after verifying the papers of Letters Patent Appeal and the original papers of Special Civil Application which was shown to him.
7. On the other hand, Mr. Virk, learned advocate appearing for the Gujarat Housing Board, by taking us through the order dated 7.3.2023 passed by the learned Single Judge at the time of issuance of notice which is reproduced in the impugned order in para 15, would submit that the main grievance of the original petitioners at the time of filing of the petition was not supplying the details and, therefore, an affidavit was filed on 20.3.2023 supplying all the details which suggest that all the formalities have been carried out by the Gujarat Housing Board as well as by the Urban Development and Urban Housing Department before granting the actual redevelopment permission in favour of respondent No.4. He would submit that though the original petitioners were floating in numbers other 4 are agreed for vacating the premises and, therefore, 10 appellants, out of 132 Page 8 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 dwelling unit holders, have come forward by filing of this appeal and, therefore, more than 91% of the total members of the society have agreed for redevelopment.
8. Apart from this aspect, he would submit that there is no bar on putting up certain area for commercial use, i.e. shops in the present case as per the policy of 2016. He would submit that as per the said guidelines, each dwelling unit holder is required to allot an apartment in the development scheme having more carpet area than the unit holder was holding at the time when the redevelopment scheme has been floated. As per clause 3.1
(b) (1), the apartment being detached dwelling unit, the developer is supposed to grant maximum aggregate carpet area which may be 140% of existing approved carpet area of the dwelling unit or 30 sq. mtrs. carpet area whichever is higher. In the present case, the developer had agreed 40% more to each dwelling unit, for which almost 122 persons have agreed for having such area.
9. He would submit that as per clause 3.1 (d), the developer is supposed to grant same size of area if some commercial Page 9 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 spaces are being used by those occupiers whose property is being redeveloped and, therefore, the submission made by the learned advocate for the appellants that only in such area, commercial purpose is permitted, cannot be accepted.
10. He would submit that with regard to allotment of additional dwelling units, the Gujarat Housing Board would be controlling the allotment as per clause 6.5 of the said guidelines and the Gujarat Housing Board would remain the owner of the said dwelling units. He would submit that as far as the shops which are going to be a part of the redevelopment scheme are concerned, the control over the same would be with the developer which is going to redevelop the entire scheme and is going to hand over the possession of 132 dwelling units without charging anything and the Gujarat Housing Board is not going to make any expenditure. He would submit that the property which is under redevelopment is more than 30 years old housing society and, therefore, under the said scheme, it is permissible and, therefore, more than 91% have agreed for redevelopment with modern amenities and only 10 dwelling unit holders have come forward by filing of this appeal.
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11. By taking us through a communication dated 4.3.2023 sent by one of the appellants Samirbhai Shah addressed to competent officer, Gujarat Housing Board requesting him to grant one month more time for vacating the premises. However, he has filed the present petition with ulterior motive and, therefore, there is no need to interfere with the order passed by the learned Single Judge impugned in this appeal. He would submit that most of the appellants themselves have committed illegalities which are reproduced in the judgment impugned in this appeal in para 14(j). He would submit that most of them have either put up construction or they are running shops on the ground floor which is not permissible where apartments were allotted by the Gujarat Housing Board. He would, therefore, submit that the appeal be dismissed.
12. Mr. M.R. Bhatt, learned Senior Advocate assisted by Mr.Akash N. Shah, learned advocate for respondent No.4, would submit that as the arguments advanced by Mr. Virk with regard to the fact that more than 91% of the members have agreed for redevelopment, he has also adopted the arguments with regard Page 11 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 to the scheme of 2016. However, he has added that the developer is free to sublease for 99 years after calculating FSI available for redevelopment and that too after granting additional spaces to 132 unit holders. By taking us through clauses 3.2 and 3.3 of the guidelines of 2016 as well as regulation 5.3, he would submit that the developer has followed the regulations of GDCR and all plans have been inwarded by the competent authority as per the said regulations. Having been inwarded the same, respondent No.4 developer has already paid Rs.50,500/- to each dwelling unit holder who had vacated and had started paying Rs.13,500/- per month towards rent till new construction dwelling unit is handed over to the original owner / occupier. He would submit that the original petitioners have approached this Court at a belated stage being fully aware that all plans have been passed by the authority and Gujarat Housing Board has executed the tripartite agreement with the association, representing 91% of the members of Surya Apartment Vibhag-3.
13. He would submit that the appellants have deliberately produced the affidavit dated 25.3.2023 filed by Gujarat Housing Page 12 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 Board along with the memo of appeal and has also argued as the appellants were not aware about the compliance of the order and details submitted by Gujarat Housing Board showing the details about the scheme including number of size of the apartment and shops which are sought to be constructed by the developer under the tripartite agreement. He would, therefore, submit that on this ground also, appeal be dismissed.
14. We have heard learned advocates appearing for the respective parties and perused the papers on record.
15. It is an undisputed fact that a resolution was passed by the members of Surya Apartment Vibhag-3 for redevelopment under the guidelines of 2016 issued by the Gujarat Housing Board. The resolution dated 1.2.2019 which was passed by the association was sent to Gujarat Housing Board requesting to undertake redevelopment by letter dated 7.12.2019. Gujarat Housing Board after verifying the details issued the tender in the month of October 2021. Ultimately, the same was accepted and tripartite agreement was executed on 12.8.2022.
16. It is not in dispute that except 10 appellants, all dwelling Page 13 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 unit holders have vacated their residential premises. The respondent No.4 developer has already paid Rs.50,500/- to each dwelling unit holder who had vacated and had started paying Rs.13,500/- per month towards rent till new construction dwelling unit is handed over to the original owner / occupier. Since some of the dwelling unit holders did not vacate the premises, the Gujarat Housing Board thought it fit to take recourse provided under Section 60A of the Gujarat Housing Board Act, which came to be amended in the year 2019 and, therefore, the proceedings under Section 60A of the Gujarat Housing Board Act as well as under provisions of Section 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 were initiated. Section 60A of the Gujarat Housing Board Act reads as under:
"60A. Re-development of Buildings or Apartments:
(1) Notwithstanding anything contained in this Act, any work in relation to the re-development of a buildings or apartments may be carried out by the Board, on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent of the owners or occupiers of such building:
Provided that, in respect of such building, -
(i) a period of twenty-five years must have been Page 14 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 completed, from the date of issuance of permission for development by the concerned Authority, or
(ii) the concerned Authority has declared that such building is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof.
Explanation. - For the purpose of this section, the expression "re-development" shall have the meaning as assigned to it in the Comprehensive General Development Control Regulations, 2017.
(2) It shall be obligatory for all the owners or occupiers to vacate the existing premises for the purpose of re-development whenever the Board decides to take up the procedure for re-development of building after following due procedure of sub-section (1):
Provided that if any owner or occupier does not vacate the premises, the Board shall cause to be served one month notice to the said owner or occupier for vacating the existing premises:
Provided further that the Board or, as the case may be, the individual agency shall have to provide alternate accommodation or rent in lieu of alternate accommodation to the owners or occupiers for the period of re-development.
(3) In case of failure to vacate the existing premises as provided in sub-section (2) above, the owners or occupiers shall be treated as unauthorized occupant on the land of the Board. The competent authority shall effect summary eviction of such owner or occupier in accordance with the provisions laid down in sub-section (3) of section 56 of the Gujarat Housing Board Act, 1961, as far as practicable."Page 15 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023
C/LPA/526/2023 ORDER DATED: 26/04/2023
17. Since the appellants have not vacated the premises, the order came to be passed under Section 60A (3) of the Gujarat Housing Board Act.
18. We have also gone through the guidelines of 2016 issued by the Urban Development and Urban Housing Department, Government of Gujarat. The objectives are referred in clause 1, which reads as under:
"Urban Development & Urban Housing Department (UDD), Govt. of Gujarat proposes to undertake the redevelopment of public housing schemes in the urban areas of the state under PPP mode to achieve the following objectives: (i) to upgrade existing housing stock (ii) create additional affordable housing stock wherever possible (iii) to utilize available land in optimal manner and (iv) to improve neighborhood at no or minimal cost to the Government."
19. The public housing scheme is defined under clause 2.1, which reads as under:
"a. Public Housing Scheme means a housing scheme developed by any public agency for the public at large, where ownership of land continues to remain with the public agency and only dwelling unit is sold to the beneficiary subject to conditions laid down in the scheme.
b. Dilapidated condition means "Such houses which show signs of decay or breaking down and require major repairs and are far from being in condition that can be Page 16 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 restored or repaired are considered as dilapidated."
20. Clause 3 of the guidelines reads as under:
"3. Approach:
Redevelopment of public housing scheme may have the following three components:
1. Redevelopment of existing public housing scheme
2. Creation of Additional Affordable Housing Stock
3. Free Sale Component"
21. As per the said clause, public housing scheme may have three components viz. redevelopment of existing public housing scheme which is done in the present case; creation of additional affordable housing stock which is already part of redevelopment scheme since against 132 existing dwelling units, the developer is going to construct 261 dwelling units and there is also a third component which deals with free sale component.
22. Now free sale component is elaborated in clause 3.3 of the scheme, which reads as under:
"a. The developer may develop balance FSI remaining after redeveloping the existing housing units and construction of affordable housing units as permitted under general development control regulations for his Page 17 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 own sale.
b. The developer may sub lease free sale component land on 99 year basis as per applicable statutory provision though ownership right of the land will remain with the concerned public authority."
23. Considering the location of the property in question, the developer is going to get three FSI, i.e. three times more than the size of the plot, upon which redevelopment is going to take place. As per the GDCR itself, the authority has permitted the development to put up construction for commercial use considering the location of the plot. It is pertinent to note that neither Gujarat Housing Board nor original dwelling unit holders are going to pay anything to the developer. The entire property is being redeveloped at the cost of developer and, therefore, the provisions have been made in the said guidelines that the developer can make the permanent sub lease free sale component land on 99 year basis as per applicable statutory provision though ownership right of the land is remained with the concerned public authority, i.e. Gujarat Housing Board.
24. It is also pertinent to note that as per clause 6.5 of the Gujarat Housing Board would be allotted under the supervision Page 18 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 of implementing agency as per guiding principles of allotment of houses issued by the concerned department. Clause 6.5 reads as under:
"The housing units of redevelopment and affordable housing will be allotted under the supervision of implementing agency as per guiding principles of allotment of houses issued by the department."
25. It is also pertinent to note that all the appellants have requested the Gujarat Housing Board to grant one month's time for vacating the same. Meanwhile, the petition came to be filed on various grounds including that they were not supplied the details.
26. Considering the submissions made on behalf of learned advocate for the petitioners who appeared before the learned Single Judge, following order was passed by the learned Single Judge while issuing notice:
"1. Mr. Chirag Prajapati, learned advocate for the petitioners submitted that the whole redevelopment process has been undertaken behind the back of the petitioners. It is submitted that various documents so also, the scheme were not made available to the petitioners and therefore, the applications were made, seeking information inasmuch as, the petitioners have all the right to know what they will be getting by way of redevelopment. On 04.10.2022, one of the petitioners has made a request to the executive engineer, Page 19 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 specifically taking a stand that they are not opposing the redevelopment. All what they want is the information about the benefits and amenities, which shall be provided by the developer. In absence thereof, it would be difficult for the petitioners to raise any grievance. It is submitted that so far as the consent aspect is concerned, very interestingly, the consent of only those members have been taken, who were in favour of the redevelopment and not of the petitioners and since there was majority of the consent, the whole redevelopment work has been started. It is submitted that the petitioners, though have all the rights, have not been provided any information, which would be prejudiced to their rights of raising any objection against the redevelopment. It is submitted that it is not clear as to who is the competent authority, who has passed the order, considering the fact that the name is not mentioned.
2. On the other hand, Mr. G.H. Virk, learned advocate appearing on caveat has submitted that the present writ petition is nothing but, a malicious attempt inasmuch as, all the petitioners are the residents of the ground floor and first floor. Out of 132 residents, the objection is only by 14 and two of which, are the husband and wife and therefore, essentially, the objection can be said to be only by 12 unit holders. It is submitted that it is improper on the part of the petitioners to raise objection inasmuch, it was apropos the proposal made by the Surya Apartment (Part 3) Association that the whole process of redevelopment was initiated, resolution has been passed by the association and signed by almost 90% and minuscule has not signed. It is submitted that the objection is being raised by the petitioners possibly for the reason that they are the holders of the units situated at ground floor and had carried out the illegal construction and the units are being used for commercial purpose. It is submitted that it is difficult to fathom as to why, objection is being raised for, now the petitioners and the unit holders shall be getting larger area compared to the area which, presently, they are residing. Moreover, transit allowance to the tune of Rs.13,500/- per month is being given to the Page 20 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 unit holders. 110 unit holders are already availing of the said benefit, except the petitioners. It is submitted that if the petitioners are ready for the same, they also will be extended the same benefits; however, the petitioners are insisting for some further amount, which would be unjust and not in the interest of all the unit holders. It is submitted that the petitioners are not against the redevelopment and considering the request of the petitioners, the Board is ready and willing to extend them some more time to vacate the premises.
3. Mr. Prajapati, learned advocate states that he has already declared before this Court and also in the representations that the petitioners are not averse to the redevelopment, all what the petitioners want, are the documents and information of the benefits which will be made available to them by the developers and the Board.
4. Mr. Virk, learned advocate submitted that the details, otherwise, are available on the portal; however, the same shall be provided to the petitioners at the earliest i.e. by today itself.
5. Mr.Prajapati, learned advocate would like to take instructions. Request is made for an adjournment.
6. At his request, let the matter appear on 20.03.2023."
27. In response to the notice, an affidavit came to be filed by the Gujarat Housing Board on 25.3.2023 supplying all the details. Considering the above submission, initially the grievance of the original petitioners had anxiety about future of allotment of the apartment, size of the apartment and other amenities. It is not in dispute that all the appellants have either Page 21 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 put up illegal construction or they themselves are running shops. The details have been reproduced in the order dated 11.4.2023 which reads as under:
Petitio Name of Block no. Unit No. Present Status ner Petitioner No. 1 Hansaben R. 152 1815 Ground floor - illegal Prajapati construction - lease deed not executed with GHB 2 Narendra V. 163 1948 Ground floor - illegal Raval construction of 2 shops 3 Hasumatiben 162 1934 Ground floor - illegal A. Patel construction of 3 shops and other structures 4 Sandip K. 162 1937 First floor - illegal Rabari construction - the Petitioner himself is not residing in this Unit 5 Samir N. Shah 183 2189 First floor - illegal construction 6 Pragaram U. 183 2190 First floor - illegal Prajapati construction 7 Mukesh J. 163 1947 Ground floor - illegal Chaudhary construction (shops) - the Petitioner himself is not residing in this Unit 8 Ushaben H. 183 2192 First floor Patel Petitioner Nos.8 and 10 are Wife and Husband, and have appeared as separate petitioners 9 Vinod D. Patel 163 1952 First floor - illegal construction 10 Hasmukh P. 183 2191 First floor - illegal Patel construction Petitioner Nos.8 and 10 are Wife and Husband, and have appeared as separate petitioners Page 22 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 11 Subhadraben 182 2180 First floor - illegal K. Purohit construction 12 Kantilal S. 183 2186 Ground floor - illegal Dataniya construction (3 shops and additional structures) 13 Ravajibhai K. 183 2187 Both, ground floor - illegal Parmar construction 14 Kamlaben R. 183 2188 Petitioner Nos.13 and 14 Parmar are Husband and Wife, respectively
28. While considering the various provisions in the guidelines of 2016, we are of the opinion that there is no bar of inclusion of instructing certain areas for commercial use and, therefore, it cannot be said that granting certain parts of the redeveloped property for commercial use is contrary to the guidelines.
29. Therefore, we are of the opinion that the persons, who have put up illegal construction and are running shops, are opposing a scheme which is being undertaken in accordance with the guidelines issued by the State Government. We have also gone through the order of the learned Single Judge. We are in agreement with the same and do not find any fault for interference. Accordingly, the appeal stands dismissed.
Consequently, Civil Application No.1 of 2023 does not survive Page 23 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023 C/LPA/526/2023 ORDER DATED: 26/04/2023 and stands disposed of.
30. At last, we accept unconditional apology submitted by Mr.Bharda, learned for the appellants for not producing the affidavit which was produced before the learned Single Judge and arguing that no details have been supplied since he was not appearing before the learned Single Judge. However, we deprecate the method adopted by the present appellants and taking the course granted and not producing all the documents which were part of the petition and swearing affidavit in the present proceedings. Hence, we impose costs of Rs.25,000/- (Rupees Twenty Five Thousand only) which shall be deposited with the Gujarat High Court Legal Aid Services within a period of eight weeks from today.
(A.J.DESAI, ACJ) (BIREN VAISHNAV, J) Bharat Page 24 of 24 Downloaded on : Thu Apr 27 20:59:08 IST 2023