Harshadbhai Ishvarlal Kiri vs Ahmedabad Municipal Corporation on 2 February, 2021

[Cites 1, Cited by 0]

Gujarat High Court

Harshadbhai Ishvarlal Kiri vs Ahmedabad Municipal Corporation on 2 February, 2021

Bench: Bhargav D. Karia

        C/SCA/12887/2020                                      ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 12887 of 2020

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                   HARSHADBHAI ISHVARLAL KIRI
                            Versus
                AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
VENU H NANAVATY(7458) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
GAYATRI P VYAS(9391) for the Respondent(s) No.
10,11,14,15,18,19,20,22,23,25,28,29,31,39,40,41,43,44,50,56,8,9
MAUNIL G YAJNIK(9346) for the Respondent(s) No. 24,26,34,42,49
NOTICE UNSERVED(8) for the Respondent(s) No. 13,33,55,6,65
SERVED BY AFFIX(N)(7) for the Respondent(s) No. 17,45,47,57,58,59,62
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 16
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 5,61
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 53
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 53
MR HEMANG M SHAH(5399) for the Respondent(s) No. 7
MR JJ YAJNIK(1008) for the Respondent(s) No.
12,27,3,30,32,35,36,37,38,46,48,51,52,54,63,64
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
MR. MN MARFATIA(6930) for the Respondent(s) No.
10,11,14,15,18,19,20,22,23,25,28,29,31,39,40,41,43,44,50,56,8,9
NOTICE SERVED(4) for the Respondent(s) No. 21,4,60
MR K.M.ANTANI, AGP FOR THE RESPONDENT-STATE
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                            Date : 02/02/2021

                               ORAL ORDER

Heard Learned Senior Advocate Mr. Anshin Desai, assisted by learned advocate Ms. Venu Nanavaty for the petitioners, learned advocate Mr. Yatin Oza assisted by learned advocate Mr. M.N. Marfatia, Page 1 of 5 Downloaded on : Thu Feb 04 01:00:59 IST 2021 C/SCA/12887/2020 ORDER learned advocate Mr.Anuj K. Trivedi, learned advocate Mr. Rituraj Meena, learned advocate Mr. J.J. Yajnik, learned advocate Mr. Hemang Shah and learned advocate Mr. Maulin Yajnik for the respective respondents through video conference.

1. Learned Assistant Government Pleader Mr.K.M.Antani states that one Mr.Harshad Patel, DCP, Control Room, Shahibaug, Ahmedabadrespondent No.66 has instructed him that the order dated 28.10.2020 denying the police help to the authorized person of Estate Officer of the Gujarat Housing Board shall be extended on request to be made by the respondent No.2Gujarat Housing Board.

2. There is an admission on record that there is an illegal construction put up by the respective respondents.

3. This Court is not able to agree with the submissions made by learned advocate Mr.Yagnik for the respective respondents that in view of the conveyance deed executed by the Gujarat Housing Board in favour of the respective respondents, Gujarat Housing Board is not authorized to take any action for illegal construction put up by the respective respondents.

4. Admittedly, the land in question on which the petitionersSociety is built up is owned by the respondentGujarat Housing Board even on lease of 99 years, therefore, owner of the land in question is Page 2 of 5 Downloaded on : Thu Feb 04 01:00:59 IST 2021 C/SCA/12887/2020 ORDER Gujarat Housing Board. This fact is also stated on oath by way of affidavit filed on behalf of the respondent No.1 Ahmedabad Municipal Corporation in paragraph No.4 to 7, which reads as under :

"4. Admittedly, the subject land belongs to and is of the ownership of the Respondent No.2, i.e. Gujarat Housing Board, i.e. a State Government body/authority. It appears that on the subject land, certain illegal and unauthorized construction has taken place and pursuant to which the Respondent No.2 has been undertaking steps for the removal of the same.

5. The Respondent No.1 states that the State of Gujarat by way of Circular dated 30th April, 2010, has categorically provided that it is the responsibility of the State to ensure that there is no encumbrance or illegal construction on the lands belonging to the State. Furthermore, in the event that the Municipal Corporation comes across any encumbrance or illegal construction, it has to bring to same to the attention of the State. Lastly, for the purpose of removing the encumbrance or the illegal construction, if the State requires the assistance of the Municipal Corporation, the same may be provided by it. Herein annexed and marked as AnnexureR1, is the copy of the Circular dated 30th April, 2010.

6. Similar to the above, the Respondent No.1 published a Circular bearing st No.15/201213 dated 1 January, 2013, wherein it has provided that any unauthorized construction on the land belonging to the Gujarat Housing Board, i.e. the Respondent No.2, the same would either be regularized or demolished by the Respondent No.2, the itself. Furthermore, for the purpose of demolition, in the event that the Respondent No.2 requires any assistance in terms of tools or machinery, the same would be provided by the Respondent No.1 upon the written request of Respondent No.2 or the State. Herein annexed and marked AnnexureR2, is the copy of the Circular dated 1st January, 2013.

Page 3 of 5 Downloaded on : Thu Feb 04 01:00:59 IST 2021 C/SCA/12887/2020 ORDER

7. Pursuant to the above, the Respondent No.1 received a letter dated 14th August, 2020, from the Respondent No.2, calling upon it to provide assistance in form of machinery and labour for removing the illegal and unauthorized construction on the subject land. The Respondent No.2 had requested for two JCB machines, four dumpers and labour. However, in view of the Circular dated 20th March, 2020, of the Respondent No.1, it was unable to provide assistance for the demolition work on account of the prevalent Covid19 pandemic. The same was informed to the Respondent No.2 vide letter dated 18th August, 2020, along with the circular dated 20th March, 2020. It is stated that the circular has been subsequently superseded by a Circular dated 29th September, 2020, whereby demolition activity was permitted. The said circulars and letter dated 18th Autust, 2020, is herein annexed and marked as AnnexureR3 (Colly)."

5. Therefore, the submission made by learned advocate Mr.Yagnik that the Gujarat Housing Board cannot take any action for removal of illegal construction is not acceptable and tenable.

6. In that view of the matter, the respective respondents are given time to demolish the construction within a period of one week, failing which, the respondent No.1Ahmedabad Municipal Commissioner is directed to initiate the proceedings under the provisions of the Gujarat Provincial Municipal Corporation Act, 1949 to remove the illegal construction with the help of the Police.

7. In such circumstances, the respondentsGujarat Housing Board as well as the Ahmedabad Municipal Corporation is directed to take appropriate action Page 4 of 5 Downloaded on : Thu Feb 04 01:00:59 IST 2021 C/SCA/12887/2020 ORDER for removal of the illegal construction put up by the respective respondents in accordance with law if such illegal construction is not removed by them.

8. Stand over to 15th February, 2021, for compliance of this order.

(BHARGAV D. KARIA, J) PALAK Page 5 of 5 Downloaded on : Thu Feb 04 01:00:59 IST 2021

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