Gujarat High Court
Rajeshbhai Jethabhai Odedara vs The Collector on 15 July, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/9311/2020 ORDER DATED: 15/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9311 of 2020
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 9311 of 2020
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RAJESHBHAI JETHABHAI ODEDARA
Versus
THE COLLECTOR
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Appearance:
MS SANDHYA D NATANI(3678) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
KAUSHAL S JANI(7627) for the Respondent(s) No. 5,6
MR MURALI N DEVNANI(1863) for the Respondent(s) No. 2
MR VIRAL J DAVE(5751) for the Respondent(s) No. 4
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 7,8
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/07/2022
ORAL ORDER
1. The present petition is filed under Article 226 of the Constitution of India by the petitioner for the following reliefs.
"A)Your Lordships may be pleased to issue writ of mandamus and/ or any other appropriate writ, order in the nature of mandamus or directions and direct the respondent authorities, to stop and remove the illegal and unauthorized construction of the private respondent no.5 and 6, which is Property no.11/5/150 at city survey ward No.3 Survey No.2263, MG Road, Porbandar-
Nagarpalika, Porbandar district, in the Page 1 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 interest of justice;
B) Your Lordships may be pleased to direct respondent authorities to forthwith stop the illegal and unauthorized construction and electricity supply and connection on illegal construction at offices of private respondent no.5 and 6, building, i.e. Property No.11/5/150, at city survey ward No. 3 Survey no.2263, Porbandar, pending the admission, hearing and final disposal of this petition.
C) Your Lordship be pleased to direct the respondent authorities to take the action against the respondent no.5 and 6 for non compliance of the orders passed by the respondent no.1 and notices issued by the respondent no.2 till date to the private respondent no.5 and 6;
D) Any other and further relief may kindly be granted in the interest of justice."
2. With the consent of the learned advocates appearing for the respective parties, this matter has been heard finally at the admission stage.
3. The brief facts giving rise to the present petition is that the petitioner is having ownership of his house at Wadi Plot, Porbandar. That very adjoining to his plot, the respondent nos.5 and 6 Page 2 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 having plot bearing property no.11-5-150. That respondent nos.5 and 6 have seek permission on 24.12.2018 for construction of multi storeyed building by removing existing structure, wherein it sought permission for construction for basement parking, ramp, on the ground floor- one hall, passage, stairs lift, shop, lavatory, block-3. 1st floor to 4th floor- 2 shops/ offices on each floor, total 9 offices/ shops from the Porbandar Nagarpalika. That after verification of the plan and construction, Chief Officer, Nagarpalika Porbandar has issued notice cum stay for removing certain defects in the plan, with direction that to remove the said defects within 8 days of time otherwise, it may construe that, no permission is taken by them.
3.1. That on 10.01.2019, the Porbandar Town Planning Committee overlooking the remarks of the Chief Officer, has passed resolution no.980 granting permission. According to the petitioner, the said resolution was not in consonance with the law and therefore, the Chief Officer, Porbandar Nagarpalika has preferred the revision application under Section 6(B) of the Gujarat Town Planning and Urban Development, challenging the resolution no.980, before the Page 3 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 Porbandar Collector by preferring Town Planning Case no.2080 of 2019. On 24.05.2019, the Collector decided the same and suspended the resolution no.980 passed by the Town Planning Committee and directed to restore the original status of the property of the private respondent. According to the petitioner, the order of the Collector was not obeyed by the private respondent nos.5 and 6 and they put construction of the multi storeyed building having many shops, offices, balcony which was not a part of the plan and permission. It is contended that the private respondent had constructed total 11 shops at first floor while they have sought permission for two shops on each floor. That on 2nd floor 13 shops constructed, on 3rd floor 8 shops constructed and on 4th floor 6 offices/ shops are constructed against permission in plan was sought for only 9 shops and no construction of balcony was permitted.
3.2. According to the petitioner, he has been harassed due to heavy flow of vehicles with nuisance of parking of vehicles over his plot and on common space road, obstructing the air circulation and congestion on common space. He has submitted Page 4 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 that he has made various applications and representations to the Chief Officer, Collector, Chief Minister, from 10.07.2019 to 09.07.2020, however, the private respondent has continuously carried out construction. He has submitted that the respondent no.1- Collector has directed respondent no.2- Chief Officer to verify the plot and if any illegal unauthorized construction is carried out, then, to take appropriate legal steps for removing the illegal construction and to report the same. That pursuant to the said instructions, the Chief Officer has issued last notice dated 19.06.2020 to respondent nos.5 and 6 for removing their illegal and unauthorized construction. That on 09.07.2020 rojkam was prepared by the respondent no.2 -officer. It is contended by the petitioner that the Government Authorities are bound to take action against illegal construction, however, they are not taking any steps for demolishing illegal construction made by the private respondents.
4. Respondent no.2 has filed affidavit in reply wherein it is contended that the petitioner has no locus standi to file petition as it seems to have some personal grievance against respondents. It Page 5 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 is also contended that the land in which construction has been made does not belong to the petitioner. It is also contended that if the petitioner is aggrieved by the construction made by the other respondents, then, he had alternative remedy of approaching the Civil Court. It is contended that the private respondents had sought permission for construction of his complex on 09.01.2019, which was taken up for consideration in the meeting of the Town Planning Committee and the committee thought it fit to grant said permission vide resolution no.980 dated 09.01.2019.
4.1. It is also contended that he was not in favour of the said resolution and therefore, he approached learned Collector Porbandar under Section 6(b) of the Town Planning Act, praying for suspension of the said resolution. That the learned Collector on 24.05.2019 allowed the application granting stay on the resolution and directing the Town Planning Committee to restore the condition of the place on its original condition. He has also submitted that the nagarpalika had sent a notice to the private respondents warning them that if they will not remove the irregularities in their construction, then their approval will be Page 6 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 considered void ab initio. That final notice was issued by the nagarpalika on 19.06.2020 intimating them about the order passed by the learned Collector and warning them not to continue with constructions failing which appropriate action will be taken against them.
4.2. It is also contended that on 09.07.2020, panch rojkam was carried out of the building in question and the same was placed before the Town Planning Committee.
5. On behalf of respondent no.4, affidavit in reply has been filed, wherein, it is contended that on 20.06.2020, the petitioner had given application for disconnection of electricity connection released in favour of private respondents, whereupon an opinion was sought from Porbandar Nagarpalika vide letter dated 09.07.2020. It is contended that the Porbandar Nagarpalika had sent a letter dated 17.07.2020, upon which necessary further clarification was sought for from the nagarpalika. Thereafter, Porbandar Nagarpalika had vide its communication dated 06.08.2020 clearly opined that the building/ premises is legally constructed having all necessary permission and also Page 7 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 intimated to the office of the deponent that they could proceed further and release electric connection.
6. It appears that during the pendency of the petition, as the premises has been sold out by the private respondents to other respondents, the new respondents have been joined.
7. The affidavit in reply on behalf of respondent nos.7 and 8 have been filed, wherein, it is contended that the petitioner is not the adjoining plot holder, but, he is having a plot at a distance from the plot in question and he is also having sufficient wide road in front of his plot for ingress and outgress. It is also contended that at the relevant time, the Town Planning Committee has granted permission to the respondent nos.5 and 6 and in consonance therewith the respondent nos.5 and 6 have put up the constructions as per the rules and regulations. It is also contended that when the Chief Officer challenged the resolution of the Town Planning Committee bearing no.980, the respondent nos. 5 and 6 were not made parties and were not given any opportunity of being heard. It is also contended that when the notice was issued to the Page 8 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 respondent nos.5 and 6, respondent no.5 has clearly intimated that at that point of time, construction was over. It is also contended that the respondent no.3 on 09.08.2019 has granted building use permission to the respondent no.5 in respect of the constructions put up over the plot in question pursuant to the development permission no.11/1-224 dated 10.01.2019 granted in favour of the respondent nos.5 and 6.
7.1. It is also contended that thereafter on 02.12.2019 the respondent nos.5 and 6 have sold the plots to them and they acquired the plot in question along with old construction with development permission granted by the respondent no.2 dated 10.01.2019 for making new construction over the plot in question. It is also contended that after purchasing the plot in question, they have obtained necessary development permissions and building use permissions from the respondent nos. 2 and 3 by submitting revised plan. It is also contended that upon construction of 47 units over the plot in question , they have sold all the units in favour of 3rd parties by executing registered sale deeds between 25.02.2020 to 24.08.2020 and upon selling of all the shops and offices, new allottees Page 9 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 have formed their own association under the provisions of Gujarat Ownership Flats Act, 1973. It is also contended that they have also obtained electricity permission and the entire construction over the plot is in consonance with the permission granted by the authority. It is contended that the allegations regarding harassment of vehicular traffic by the petitioner is not correct as there is a basement parking provided in the constructions made by respondent nos.7 and 8. It is also contended that in fact the petitioner with ulterior and malafide intention to harass the respondent nos.5 to 8 and with a personal grudge had put vehicles on his own over the road in front of the building and then captured the photographs and thereby tried to mislead the Court. According to him, these facts can be established from the CCTC footage of the said building. It is prayed to dismiss the petition.
8. Heard learned advocate Ms.Sandhya Natani for the petitioner, learned AGP Mr.Meet Thakkar for the respondent State, learned advocate Mr.Murali Devnanai for respondent no.2, learned advocate Mr.Viral Dave for respondent no.4, learned advocate Mr.Harshal Joshi for Page 10 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 Mr.Kaushal Jani for respondent nos.5 and 6 and learned senior counsel Mr.Mehul Shah assisted by learned advocate Mr.Vishal Mehta for respondent nos.7 and 8. None has remained present for respondent no.3. Perused the material placed on record.
9. Learned advocate Ms.Sandhya Natani for the petitioner has vehemently submitted the same facts which are narrated in the memo petition and has submitted that the private respondents had constructed a multi storeyed building in breach of permission granted by the authority. She has also submitted that initially the permission was granted by the Town Planning Committee which came to be challenged by the Chief Officer by filing application before the Collector wherein, the Collector has stayed the execution of the resolution no.980 of the Town Planning Committee granting construction permission to the private respondents. She has also submitted that when the Collector has stayed the operation of the said resolution granting constructions permission to the private respondents and directing the Town Planning Committee to restore the original position of land, it was incumbent upon the part of the Page 11 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 authority to see to it that no further construction is made over the plot and if any construction is made, then, it was to be removed immediately. She has submitted that however, the authority concerned has not done so and ultimately the private respondent nos.5 and 6 has made out the construction over the plot in question against the plan and the said constructions can be said to be illegal constructions which needs to be demolished. She has also submitted that the petitioner has made many representations to the authority concerned for such removal, however, the authority did not paid heed to it.
9.1. Learned advocate Ms.Sandhya Natani for the petitioner has vehemently further submitted that during the pendency of the petition, the respondent nos.5 and 6 have sold the property to the respondent nos.7 and 8 and therefore they are joined in the petition. She has also submitted that the new constructions put up by the respondents needs to be removed by the authority concerned and the electric connection if any given to the premises needs to be disconnected. While referring to the panchnama as well as the order of the Collector and various communications entered into between the Page 12 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 electricity company and the nagarpalika, she has submitted that all these facts suggests that the constructions put up by the respondents are illegal constructions and therefore the same be ordered to be removed and the petition may be allowed.
10. Learned advocate Mr.Devnani for the respondent no.2 has vehemently submitted the same facts which are narrated in the affidavit in reply of the respondent no.2. He has submitted that the petitioner has no right to file the present petition. He has submitted to dismiss the petition against the respondent no.2.
11. Learned advocate Mr.Viral Dave for the respondent no.4 has submitted the same facts which are narrated by the deponent for the PGVCL and has submitted that after proper inquiry from the nagarpalika electric connection has been released to the owners of the concerned offices of the construction in question.
12. Learned advocate for the respondent nos.5 and 6 has submitted that the petitioner has no locus to file present petition as the plot in question is not of the ownership of the petitioner.
Page 13 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022C/SCA/9311/2020 ORDER DATED: 15/07/2022 He has also submitted that after obtaining appropriate permission from the Town Planning Committee, construction was put up on the plot at the relevant point of time. He has also submitted that in the proceedings before the Collector respondent nos.5 and 6 were not heard and behind their back alleged order of the Collector came to be passed, but, prior to passing of such order, the construction was already completed and this fact was brought to the notice of the concerned authority by the respondent no.5. He has submitted that the petition may be dismissed against the private respondents.
13. Learned senior counsel Mr.Shah for the respondent nos.7 and 8 has vehemently submitted that the respondent nos.7 and 8 have purchased the land in question along with the development permission granted in favour of the respondent nos.5 and 6 and thereafter they have applied for revised plan which came to be allowed by the competent authority and after completion of the entire construction, necessary building use permission has been granted by the competent authority. He has also submitted that even in the building, the basement parking has Page 14 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 been provided therein, for the members as well as for the customers. Learned senior counsel Mr.Shah, while referring to the documentary evidences produced along with the affidavit filed on behalf of respondent nos.7 and 8, has submitted that the nagarpalika has passed resolution granting permission to these respondents. He has also submitted that the alleged order of the Collector has not become final as the appeal against that order is pending before the appellate forum. He has also submitted that the contentions raised by the respondent nos.7 and 8 in affidavit in reply has not been controverted by the petitioner by filing rejoinder affidavit and therefore, it needs to be accepted as it is. He has submitted that the plot of the petitioner is not adjoining to the building but, it is opposite to the other side and there is sufficient space. He has also referred to the photographs produced with the affidavit and has submitted that the entire petition is based upon a personal grievance and for malafide intentions. He has submitted that now no cause of action survived. He has submitted that there is sufficient space made available for parking of the vehicles in the basement area, he has prayed to dismiss the present petition.
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14. Learned AGP Mr.Meet Thakkar for the respondent State has submitted that the Collector has passed appropriate order in the matter and he has also submitted that at the relevant time proper notice was issued to the concerned person by the municipality. He has referred to the affidavit of the Chief Officer and has submitted that the appropriate action was taken out by the concerned authority. According to him, therefore, the petition against the authority needs to be dismissed.
15. Having considered the submissions made on behalf of both the sides, coupled with the material placed on record, it transpires that there is no dispute regarding the fact that initially permission of construction was granted to the respondent nos.5 and 6 by the Town Planning Committee of the Porbandar Nagarpalika dated 10.01.2019. It reveals from the record that the Chief Officer of the nagarpalika filed Town Planning Case No.2080 of 2019 before the learned Collector against the Chairman Town Planning Committee Nagarpalika Porbandar and members of Town Planning Committee Nagarpalika Porbandar challenging Page 16 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 the order passed on various items which were came to be approved in the meeting dated 09.01.2019 by the Town Planning Committee. It appears that the Collector vide his order dated 24.05.2019 ordered that there would be a stay upon the various agenda items and for restoring the status quo.
16. Now, in the present case, the petitioner is relying upon one notice cum injunction issued by the Chief Officer Nagarpalika Porbandar dated 29.12.2018. However, considering the subsequent event, the reliance upon this communication made by the petitioner is devoid of any merits as after such notice, the Town Planning Committee has granted the permission to the private respondents. Further, it reveals from the material placed on record that the Chief Officer has issued notice dated 06.08.2019 based upon the order passed by the learned Collector on 24.05.2019, which same came to be replied by the private respondents vide his communication dated 13.08.2019, wherein it is averred that the construction has been carried out as per the sanctioned plan and map and there is no breach of any of the rules of GDCR or Town Planning and the entire construction has already been Page 17 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 completed and no construction is pending. It also reveals from the page no.78 which is building use permission granted dated 09.08.2019 that permission was granted to utilize the premises. Thus, when the notice was issued on 06.08.2019, the construction was already completed otherwise no building use permission could have been granted on 09.08.2019. It also reveals from the record that even thereafter the revised permission has been granted to the private respondents vide General Committee Resolution No.325 dated 28.10.2010. It also reveals from the material placed on record that the new construction has also been sold to third parties who have formed their association and who are not the parties to this petition. Moreover, it also appears that before staying the alleged permission of construction in favour of the private respondents by the Collector, no opportunity of being heard was given to them. Further, as per the material placed on record, the said order of the Collector has already been challenged before the appellate forum by the new respondents. It also reveals from the material that the averments made by the private respondent nos.7 and 8 in their affidavit in reply regarding the constructions and having Page 18 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 necessary permission from the competent authority have not been denied by the petitioner by filing rejoinder affidavit. Not only that, the fact narrated by the respondent no.2 in his affidavit that the petitioner can approach Civil Court for his personal grievances against the defendants has not been denied by the petitioner in affidavit in rejoinder. It appears that there is some personal grievance of the petitioner against private respondents. In view of the material placed on record, it clearly transpires that the order of the Collector is still not become final as the appeal is filed by the respondents and the same is pending. Further, the new constructions put up by the new respondents on the place is made, after the approval of the competent authority. Under these circumstances, the grievance raised by the petitioner can be agitated by him in appropriate forum. Further since the disputed questions of fact are invited in the matter, this Court do not consider it proper to exercise jurisdiction under Article 226 of the Constitution of India.
In view of the above, the present petition is liable to be dismissed. Accordingly the present petition is dismissed. Liberty is reserved to the Page 19 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022 C/SCA/9311/2020 ORDER DATED: 15/07/2022 petitioner to take out appropriate legal proceedings in accordance with the law. No order as to costs.
In view of the order passed in the main matter, civil application is disposed of accordingly. Direct service is permitted.
(DR. A. P. THAKER, J) URIL RANA Page 20 of 20 Downloaded on : Fri Jul 15 21:47:07 IST 2022