Gujarat High Court
New vs State Of Gujarat And on 23 August, 2010
Gujarat High Court Case Information System Print LPA/1928/2004 26/ 26 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1928 OF 2004 IN SPECIAL CIVIL APPLICATION NO. 13085 OF 2003 NEW AGE OIL INDUSTRIES AND OTHERS Versus STATE OF GUJARAT AND OTHERS Present:
Shri. Mihir Thakore, Senior Advocate assisted by Shri N.K. Majmudar, Advocate for the appellants.
Smt. Manisha Shah, Assistant Government Pleader for respondents Nos. 1 and
5.
Shri R.M. Chhaya, Advocate for respondent No.2 Shri Mehul Sharad Shah, Advocate for respondent No.3 CORAM:
THE HONOURABLE MR.JUSTICE G.S. SINGHVI AND HONOURABLE MR.JUSTICE ANANT S. DAVE Date of order: 2/9/2005 (Per : HON'BLE MR.JUSTICE G.S. SINGHVI) C.A.V. In the last 58 years, the Legislatures of various States have enacted different statutes for regulating development of the urban as well as rural areas.
Several pieces of subordinate legislations have also been enacted on the subject. The laws enacted by the Legislatures contain provisions for preparation of the master plans, development plans, town planning schemes etc. The plenary as well as the subordinate legislations regulate the construction of buildings and also provide for removal of illegal and unauthorised constructions and imposition of penalties. A number of statutory bodies like Urban Improvement Trusts and Development Authorities have been created to oversee and ensure planned development of the urban areas. The municipal authorities and other local bodies have also been empowered to regulate the constructions of buildings and to ensure that building plans, rules, regulations and bye-laws are not violated. Notwithstanding these legislative measures, the country as a whole has seen mushroom growth of unplanned development of the urban and rural areas causing chaos all over. The concept of planned development has been given a go-bye in most of the cities. It has perhaps become the habit of the haves of the society to violate the master plans, zoning plans, the building plans, the rules, regulations and bye-laws. Those who belong to this category have also indulged in large scale encroachment of public properties. Unfortunately, they get support from the power corridors and the people in general suffer on that account. The unplanned development and constructions have given rise to multi-ferious problems like congestion, chaotic traffic conditions, garbage, sanitation etc. and unbearable burden is put on the agencies which are required to provide amenities like water, electricity, roads, health, hygiene etc. The cities in the State of Gujarat are no exception to this malady. Massive constructions have been made in most of the cities either without obtaining the necessary permission or getting the plan sanctioned or in violation of the sanctioned building plans. This has caused considerable dent to the planned development of the cities. Sufferings of the people in general on account of unplanned development of the urban areas has been compounded because the successive Governments have, for reasons which have no nexus with the public interest, framed policies and even legislations to regularise illegal and unauthorised constructions.
Such policies have been framed and Legislative measures taken without realising that violation of the concept of planned development would affect the public at large and even future generations.
We have made a brief mention of the widespread and habitual violation of the development plans, zonal plans etc. by the people and grave consequences of unplanned development of the urban as well as rural areas of the country because this appeal also raises the question whether the Court should compound the illegal construction made by the appellants on the land of Gujarat Industrial Development Corporation at Mehsana (for short 'the Corporation'), which was leased out to appellant No.1 for setting up an industrial unit. The appellants had challenged orders dated 3.2.2003 passed by the Collector, Mehsana cancelling the permission granted by Mehsana Urban Development Authority (for short 'MADA') for construction of shopping centre on the plot leased out by the Corporation and order dated 6.8.2003 passed by the State Government dismissing the appeal filed against the order of the Collector, but could not persuade the learned Single Judge to nullify those orders.
For deciding the questions arising in this appeal, it will be appropriate to notice the relevant facts.
In furtherance of Government Resolution dated 22.11.1962, the Corporation acquired land in Mehsana for the purpose of industrial development. The land could also be used for ancillary purposes like construction of Bank, Hospital, Post Office, Retail shops etc. The resolutions passed by the State Government from time to time contain prohibition against the transfer, sale or alienation of the land by the Corporation without prior permission of the Revenue Department of the Government.
The provisions of Gujarat Town Planning and Urban Development Act, 1976 (for short 'the 1976 Act') are applicable to the land of the Corporation, which falls within the limits of MADA, in so far as the same relates to the construction of buildings.
In 1975, the Corporation allotted land bearing plot Nos. 82 and 85 to appellant No.1 ? New Age Oil Industries on lease for 99 years for industrial purposes. After executing the lease agreement, appellant No.1 took possession of the plot. In 1979, appellant No.1 constructed industrial shed and started industrial activities. After 21 years, appellant No.1 divided the land into four plots bearing Nos.
82/2+85/10 to 82/2+85/13 and then submitted application dated 20th April, 2002 to MADA for grant of permission to construct shops and offices. Even though the application of appellant No.1 was not on the agenda of the meeting of the Town Planning Committee of MADA held on 24.4.2002, the issue was considered in that meeting and it was resolved to accept the request of appellant No.1.
Thereafter, Chairman, MADA issued letter dated 1.5.2002 (Raja chitty for development) to appellant No.1 for putting up construction for commercial purposes subject to the following conditions:
?S(1) The proposed site is of the GIDC. Therefore, prior to putting up construction the 'No Objection' will have to be obtained from GIDC and government. The responsibility for the same shall be of the applicant.
(2) The proposed construction is on the Mehsana ? Modhera Road therefore 80' of leaving the control line open to sky, the construction work will have to be started.
(3) From the time that the proposed construction work starts from that time till the completion, as per the government Earthquake Rules the certificate will have to be obtained from the Authority, and the responsibility for the same shall be of the applicant, and they shall have to put up the construction that is earthquake proof.
(4) For the proposed construction and the approved building plans, as shown there shall be construction on ground floor 652.75 sq.mtrs. first floor 652.75 sq.mtrs. and second floor 652.75 sq.mtrs. thus the total construction work of the ground, first and second floor admeasures 1958.25 sq.mtrs office rooms shall be put up as per the approved plans.
(5) The parking shall be as per 30% and for every 6 shops there shall be tilet and one bathroom and one ladies toilet, in this manner the sanitation and parking facilities will have to be made available compulsorily.
(6) With regard to the proposed construction if there is any Revenue or private dispute arising then it shall be the responsibility of the applicant to resolve the same.
The conditions mentioned in the permission will have to be complied with.??
In terms of Clause I of the permission granted by MADA, appellant No.1 was required to obtain 'No Objection' from the Corporation and the State Government before raising construction, but without even submitting application either before the Corporation or the State Government for grant of 'No Objection', the appellant not only constructed shopping centre consisting of 102 shops as against the sanction of 54 shops, but also transferred some of the shops to the private individuals.
Respondent No.6 who is a member of Mehsana Municipality lodged a complaint before Collector, Mehsana that the construction of shopping centre by appellant was violative of the provisions contained in the Land Acquisition Act, 1894 and the 1976 Act (as amended in 2001). On being prima-facie satisfied with the correctness of the allegations contained in the complaint, the Collector issued notice dated 3.9.2002 to appellant No.1 and its Partners apart from Chief Officer, MADA, the Chairman, Town Planning Committee, MADA, Regional Manager, Gujarat Industrial Development Corporation Estate, Mehsana to show cause as to why resolution dated 24.4.2002 passed in the meeting of the Town Planning Committee of MADA may not be stayed. He also directed the parties to maintain status-quo and restrained the partners of appellant No.1 from getting any change effected in the city survey records and the revenue records. The appellant contested the notice by contending that the permission granted by MADA was in order and that the Corporation did not have any objection to the construction of shopping centre. After hearing the Advocate for the appellant and the representatives of the Corporation and MADA, Collector, Mehsana passed detailed speaking order dated 28.8.2003, vide which he cancelled the permission granted by MADA and directed the appellants to restore the land to its original position. The appeal filed by the appellants against the order of the Collector was dismissed by Officer on Special Duty-cum-Deputy Secretary, Urban Development and Urban Housing Department, Gujarat vide his order dated 6.8.2003. The officer concerned dealt with various points raised by the appellants and rejected the same by recording cogent reasons.
The appellants challenged the orders passed by the Collector and the State Government in Special Civil Application No. 1308 of 2003 by contending that they were not required to obtain permission from MADA because the land falls within the industrial zone of the Corporation and the provisions of the 1976 Act are not applicable to such land. The alternative plea taken by the appellants was that MADA had rightly granted permission for construction of the shopping centre and the Collector did not have the jurisdiction to cancel the same. It was further pleaded that in the face of the decision taken by the Corporation to regularise the construction, the Collector was not justified in cancelling the permission granted by MADA.
In the counter affidavit filed on behalf of the district administration and MADA, it was averred that the construction made by the petitioners was contrary to the very purpose for which the land was leased out by the Corporation and that the latter did not have the jurisdiction to regularise the unauthorised construction made by the appellants. It was also pleaded that by virtue of the powers vested in him under Section 6B(2) of the 1976 Act, the Collector had the jurisdiction to cancel the permission granted by MADA and no illegality was committed by the officer concerned in passing order dated 3.3.2003 because the appellants could not have been allowed to construct shopping centre on the land belonging to the Corporation.
The learned Single Judge dismissed the Special Civil Application. He held that the land which was acquired by the Corporation for industrial purpose cannot be used for construction of shopping centre. He noted that the land had been allotted to appellant No.1 on lease for 99 years for running an industry and held that the same could not have been used for any other purpose. The learned Single Judge rejected the plea of the appellants that they were not required to obtain permission from MADA for the purpose of raising construction on the land belonging to the Corporation by observing that the provisions of the 1976 Act are applicable to such constructions because the land falls within the limits of MADA. The learned Single Judge then considered whether the construction of shopping centre can be treated as a commercial use ancillary to the industrial purpose and answered the same in the negative. The learned Single Judge referred to the provisions of Section 6B(2) of the 1976 Act and held that the Collector did not commit any illegality by refusing to recognise the regularisation by the Corporation of the illegal construction made by the appellants. Paragraphs 10 to 12 of the impugned order which contain discussion on this issue are reproduced below:
?S10. Reliance was placed by the petitioners on the order passed by the GIDC dated 13-01-2003 for regularizing the construction of the plot in question is concerned. In view of the stay order granted by the Collector on 30th September, 2002 staying the development permission, the petitioners could not have approached the GIDC for regularizing of the construction and the GIDC could not have and should not have regularized the construction. By this, the petitioners and GIDC had tried to overreach the process. Even otherwise as stated above, even the said order dated 13-01-2003 will not be in any way helpful to the petitioners as even the said regulariza-tion was subject to obtaining necessary permission from the Area Development Authority and they are subject to the GDCR of Area Development Authority and it is not a blanket regularization granted by GIDC. Under the circumstances, as per the GDCR of Area Development Authority the plot in question is in industrial zone and it can be used only for industrial purpose and could not have been used for commercial purpose and the plot in question could not be used for constructing of shopping centre, which is ultimately transferred to various allottees.
11. So far as the contention of the petitioners that it is a policy of the State Government and GIDC to regularize the construction which is used for commercial purpose and, therefore, the Collector could not have gone beyond the policy of the State Government and could not have directed to put the position of the land which was prior to granting of the development permi-ssion is concerned, even the said policy is not applicable to the petitioners' case. Firstly,on the ground that the regularisation is with regard to the use and not for the construction, secondly, even the regulari-sation is subject to the Rules and Regula-tions of the Area Development Authority and GDCR of Area Development Authority. The regularisation even as per the State Government Policy and GIDC policy cannot be de hors the Rules and Regulations and bye-laws of Area Development Authority and GDCR of Area Development Authority. In the present case,even the use of the plot in question i.e. for commercial use is not only by the petitioners only, but it will be by other persons who will be allotted the shops who are not even allottees of GIDC. As stated above the construction of shopping centre and use it for shopping centre cannot be said to ancillary to the industrial purpose. Under the circumstances, the conten-tion on behalf of the petitioners that considering the policy of State Government and GIDC with regard to the construction has no substance whatsoever.
12. It was also argued on behalf of the petitioners that they have already put up the construction of shops and the shops are already sold to various persons. As observed by all the authorities below the petitioners had started the construction of shopping centre even before applying for the develop-ment permission for construction of shopping centre and no particulars are given by the petitioners when they have sold shops in question to other persons. The development permission was granted on 01-05-2002 and since September 2002 there was a stay order. Not only that but even as per the development permission the petitioners were granted permission to construct 64 shops only and as such the petitioners have constructed 102 shops and even the construction which is put up by the petitioners in the shopping centre is not only de hors and contrary to the GDCR of Area Development Authority but is also contrary to the sanctioned develop-ment permission and the plans. Under the circumstances, both the authorities below were justified in directing the petitioners, GIDC and Area Development Authority to restore the position of the land which was existing before the commencement of such work. Under provisions of Section 6B(2) of the amended Gujarat Town Planning Act, the Collector is empowered to direct an appropriate authority to restore the position in which it was before the commencement of such work when the execution of any work in pursuance of the order or resolu-tion of an appropriate authority is already commenced and completed. Under the circum-stances,when it was found by the Collector exercising power under Section 6B(2) of the amended Act that the resolution and the development permission granted by the appro-priate authority was unlawful, de hors and contrary to the GDCR and Area Development Authority and that when it was found that as the plot in question is in industrial zone and it was required to be used by GIDC and its allottees only for the purpose of industrial use and could not have been used for commercial purpose and accordingly a direction was issued by the Collector directing the appropriate authority, the petitioners and the GIDC to restore the position. I find that there is no illegality committed by the Collector. As stated above, as such, the petitioners have not come with clean hands. The petitioners had tried to overreach the Court process. When the stay order passed by the Collector in the month of 2002 in the proceedings under Section 6B(2) the petitioners could not have approached the GIDC for regularisation of construction and even the GIDC could not have regularized construction. Not only that but as found by both the authorities below even the construction which is made by the petitioners is not even as per the sanctioned plans / development permission, as against 64 shops 102 shops are constructed by the petitioners. No particulars are given by the petitioners when the shops were sold to various other persons and only the bare statement is made without there being any further evidence with regard to selling the shops to various other persons. However, when it was found by both the authorities below that the development permission which was granted by the Area Development Authority and that the resolution passed by the Area Development Authority is unlawful and contrary to the GDCR and Area Development Authority by which the commer-cial use in a industrial zone i.e. more particularly the construction of shopping centre in GIDC is not permissible at all it cannot be said that the orders passed by both the authorities in any way found to be illegal, unjust and contrary of law. It seems that the order passed by the Collector is in consonance with the provisions of Section 6B(2) of the newly amended Gujarat Town Planning Act. Under the circumstances, there is no substance whatsoever in the present petition.??
Shri Mihir Thakore, Senior Advocate appearing for the appellants invited our attention to the provisions of Sections 7, 9, 12 of the 1976 Act and Sections 3, 13 and 14 of Gujarat Industrial Development Act, 1962 (for short 'the 1962 Act') and argued that the construction made by the appellants after obtaining permission from the competent authority of MADA cannot be termed as illegal and the Collector committed a jurisdictional error by cancelling Resolution dated 24.4.2002. Shri Thakore emphasised that the constructions made by the appellants does not violate the zoning plan or the purpose of allotment and argued that the Collector committed a serious illegality by cancelling the permission ignoring the fact that during the pendency of the proceedings initiated under Section 6B of the 1976 Act, the Corporation had regularised the construction. He submitted that the construction of shopping centre falls within the ambit of the purposes for which the land of the Corporation can be used. Learned counsel then argued that the violation of Clause I of the permission granted by MADA will be deemed to have been regularised by virtue of resolution dated 13.3.2003 passed by the Corporation. Shri Thakore then argued that in view of the policy of regularisation framed by the State Government, the Corporation was well within its right to regularise the construction of the shopping centre. In the end he submitted that even if the construction of shops in excess of what was permitted by the Town Planning Committee of MADA is found to be impermissible, the Court may approve regularisation of the remaining construction.
Learned counsel for the respondents supported the order of the learned Single Judge and argued that the Collector did not commit any illegality by cancelling the permission granted by the Town Planning Committee of MADA. Shri Mehul Sharad Shah, counsel representing MADA pointed out that after taking possession of the plot the appellants had got the plans approved on 13.3.1979 for construction of industrial shed and they had in fact used the land for industrial purpose but after 21 years they changed the user of the land and constructed shopping centre. Shri Shah pointed out that even the permission granted by the Town Planning Committee of MADA was violated inasmuch as the appellants did not obtain 'No Objection' from the Corporation and the State Government before raising the construction. Learned Counsel also pointed out that the permission granted by the Town Planning Committee of MADA envisaged construction of 64 shops only whereas the appellants constructed 102 shops. Shri Shah submitted that the contumacious conduct of the appellants is evident from the fact that even though vide order dated 3.9.2002 the Collector had stayed the resolution of the Town Planning Committee of MADA, they manipulated to obtain an order of regularisation of construction from the Corporation. Shri Shah controverted the argument of Shri Thakore on the issue of regularisation and argued that construction made up to 30.6.2002 only can be regularised whereas the impugned construction was made after the cut-off date.
We have given serious thought to the respective arguments. In our opinion, the learned Single Judge did not commit any error by refusing to entertain the appellants' challenge to the orders of the Collector and the State Government. A reading of letter dated 1.5.2002 issued by Chairman, MADA to appellant No.1 conveying the decision of Town Planning Committee to grant permission for putting up construction makes it clear that obtaining of 'No Objection' from the Corporation and the State Government was condition precedent to the construction of the building. To put it differently, the appellants could not have commenced construction of building without first obtaining the requisite 'No Objection' from the State Government. However, the fact of the matter is that the appellants did not even apply for 'No Objection' from the State Government and proceeded to erect the building and that too in flagrant violation of the scope of permission. As per their own showing, the appellants had been permitted to construct 64 shops, whereas they constructed 102 shops. Therefore, there is no escape from the conclusion that the construction made by the appellants was illegal.
Section 6B of the 1976 Act, which empowers the Collector to suspend the execution of any order, resolution or decision of an Area Development Authority or an Urban Development Authority reads as under:
?S6B(1) A copy of every order, resolution or decision of the appropriate authority shall be sent to the Collector of the district.
(2) If, in the opinion of the Collector, the execution of any order, resolution or decision of an appropriate authority or the doing of anything which is about to be done or is being done by or on behalf of an appropriate authority is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of an appropriate authority is already commenced or completed, direct an appropriate authority to restore the position in which it was before the commencement of such work.
(3) When the Collector makes any order under this section, he shall forthwith forward to an appropriate authority affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government along with copies of such order and statement.
(4) Against the order made by the Collector under sub-section (2) the appropriate authority or any person affected thereby may prefer an appeal to the State Government within thirty days from the date on which it receives a copy of the order. The State Government may on such appeal rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify:
Provided that the order shall not be revised, modified or confirmed by the State Government without giving the appropriate authority or, as the case may be, person affected thereby reasonable opportunity of showing cause against the order.??
A plane reading of the language of the above reproduced provision makes it clear that the Collector has been vested with the supervisory power qua the decisions of the Area Development Authority which is required to forward copy of every order, resolution or decision to the former. The Collector can suspend the execution of such order, resolution or decision or prohibit the doing of any action in furtherance of such order, resolution or decision if he is satisfied that the same is causing or is likely to cause injury or annoyance to the public or lead to a breach of the peace or is unlawful. He can also direct the Area Development Authority to restore the position obtaining before the commencement of such work. If the order of Collector, Mehsana is scrutinised in the light of the wide powers vested in him under Section 6B of the 1976 Act, it is impossible to hold that by staying the implementation of Resolution dated 24.4.2002 passed by the Town Planning Committee of MADA and cancelling the permission granted to appellant No.1 for raising construction, the officer concerned had acted without jurisdiction. In our view, the Collector had rightly cancelled the resolution of the Town Planning Committee of MADA and the permission granted for construction of the building because the same was in clear violation of the purpose for which the land was leased out to appellant No.1 and also because the appellants had raised construction without obtaining 'No Objection' from the Corporation and the State Government in terms of Clause I of letter dated 1.5.2002.
We are further of the view that Collector, Mehsana did not commit any error when he held that the land acquired by the Corporation for industrial purpose could not have been used for construction of shopping centre without obtaining previous sanction of the State Government in terms of Section 17A of the 1894 Act, which reads as under:
?S17A. Use of land for any public purpose permitted.-- When any lands vests in the State Government or in a corporation owned by the State Government under the provisions of this Act, it shall be lawful, with the previous sanction of the State Government to use such land also for any public purpose other than that for which its possession was taken.??
In terms of Section 17A of the 1894 Act, the land which was acquired by the Corporation for industrial development and was leased out to the appellant No.1 for industrial purpose could have been used only for that purpose and if it was intended to change the use of the land, then prior sanction of the State Government ought to have been taken, which was admittedly not done either by the Corporation or by the appellants. Therefore, the finding recorded by the Collector that the change of use of the land was unauthorised, cannot be faulted.
We also agree with the learned counsel for the respondents that Collector, Mehsana did not commit any illegality by cancelling the permission granted to the appellants for construction of shopping centre and the learned Single Judge rightly refused to approve the regularisation of illegal and unauthorised construction. It is an admitted position that before changing use of the land, the Corporation had not obtained previous sanction of the State Government. Not only this, the appellants did not apply for 'No Objection' from the State Government in terms of Clause 1 of the conditions incorporated in letter dated 1.5.2002 vide which the Chairman of MADA had conveyed permission for construction of the shopping centre. During the course of arguments, learned counsel for the appellants fairly admitted that his clients had not sought 'No Objection' from the State Government. It is, therefore, clear that the appellants had raised construction in violation of Clause 1 of the conditions incorporated in letter dated 1.5.2002.
In view of the above conclusions, we do not find any valid ground to disagree with the learned Single Judge that the Corporation could not have regularised the illegal construction made by the appellants and the Collector, and the State Government did not commit any error by refusing to approve the decision of the Corporation to regularise the construction.
In the result, the appeal is dismissed. However, keeping in view the recent judgement of the Supreme Court in Keval Kishan Gupta Vs. Jammu and Kashmir Special Tribunal, AIR 2005 SC 2578, we give liberty to the appellants to persuade the Corporation to approach the State Government for grant of post-facto sanction in terms of Section 17A of the 1894 Act and further liberty to them to seek 'No Objection' from the State Government in terms of Clause 1 of the conditions of letter dated 1.5.2002. This would be subject to the following conditions:
(1) Within 7 days from today, the appellants shall give a written undertaking before Collector, Mehsana that they would demolish 38 shops constructed in violation of the permission granted by MADA;
(2) Within next 3 weeks they shall actually demolish the excess shops under the supervision of an officer nominated by Collector, Mehsana;
(3) After carrying out demolition, the appellants may submit representation to the Corporation and the State Government for grant of sanction and 'No Objection' in terms of Section 17A of the 1894 Act and Clause 1 of conditions contained in letter dated 1.5.2002.
(4) The representation made by the appellants shall be decided by the State Government within next 2 months. Till then the remaining construction of the appellants shall not be demolished.
However, it is made clear that this liberty shall not be considered as a mandate of the Court for grant of the required sanction or 'No Objection' and the competent authority shall be free to take decision in accordance with law. If the State Government does not give sanction for change of use or 'No Objection' for construction of shopping centre, then the appellants shall have to demolish the construction and bring the plot to its original position in terms of the direction given by the Collector.
(G.S. Singhvi) Judge (Anant S.Dave) Judge */Mohandas Top