Gujarat High Court
Gujarat vs Ahmedabad
Author: M.R. Shah
Bench: M.R. Shah
MCA/2076/2010 12/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR REVIEW No. 2076 of 2010 In SPECIAL CIVIL APPLICATION No. 987 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= GUJARAT INSTITUTE OF CIVIL ENGINEERS AND ARCHITECTS & 1 - Applicant(s) Versus AHMEDABAD URBAN DEVELOPMENT AUTHORITY & 4 - Respondent(s) ========================================= Appearance : MR SAURABH G AMIN for Applicant(s) : 1 - 2. MR ADIL R MIRZA for Respondent(s) : 1, MR DHAVAL G NANAVATI for Respondent(s) : 2, MR PK JANI, GP for Respondent(s) : 3, MR UDAY R BHATT for Respondent(s) : 4, MR JC VYAS for Respondent(s) : 5, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/01/2012 ORAL JUDGMENT
1. The present Miscellaneous Civil Application has been preferred by the applicants (third parties) to review the order passed by this Court dated 15/07/2010 in Special Civil Application No. 987/2010 and to clarify that the Ahmedabad Municipal Corporation is empowered to exercise powers under Sections 27 to 39 and 49 of the Gujarat Town Planning Act qua the chapters registered after 22/12/2006 and only the files pertaining to such chapters are to be transferred by Ahmedabad Urban Development Authority to Ahmedabad Municipal Corporation.
2. One Tejas Co-operative Housing Society Ltd.-original petitioner preferred Special Civil Application No. 987/2010 before this Court for an appropriate writ, order or direction directing Ahmedabad Urban Development Authority and Ahmedabad Municipal Corporation to take appropriate action against respondent no. 3 for (i) encroachment on the public road (ii) unauthorized and illegal construction in his residential house bearing tenement no. 48 of the petitioner-Society and (iii) converting the use of the said tenant from residential into commercial by constructing and letting three shops to different persons.
3. This Court issued notice upon the respondents and it was pointed out at the time of hearing of the said Special Civil Application by Ahmedabad Urban Development Authority that as the area, where the petitioner-Society was situated, has been merged into the limits of Ahmedabad Municipal Corporation the representation made by the petitioner-Society has been forwarded to Ahmedabad Municipal Corporation and it was for the Ahmedabad Municipal Corporation to take appropriate steps. Ahmedabad Municipal Corporation also filed affidavit-in-reply and came out with the following defense as so stated in paragraph nos. 4 to 7, which reads as under;
"4. It is stated that the area in question was earlier under the administrative control of the Ahmedabad Urban Development Authority, but the said area has merged into Administrative Control of the Ahmedabad Municipal Corporation by a notification bearing No. KV/25/2006/AMN/902006/410/P dated 14/02/2005 and notification of even dated 20/07/2006. The said notifications had been made effective since the midnights of 14/02/2006 and 20/07/2006 respectively. However, it is pertinent to note that though the area in question is merged into the administrative control of the answering respondent, but the Ahmedabad Urban Development Authority has not handed over the administrative powers under the Gujarat Town Planning and Urban Development Act to the answering respondent and taking all the administrative decisions pertaining to the Town Planning Scheme under the Gujarat Town Planning and Urban Development Act.
5. It is stated that even from the order issued by the Department of Urban Development and Urban Housing Department of the State Government vide order No. UDA - 112006 - 2795 - V dated July 07, 2006 exercising powers vested under section 122 of the Gujarat Town Planning and Urban Development Act 1976 the State Government has made it very clear that by only certain and specific powers which are available under Sections 27, 28, 29, 30, 31 ,32, 33, 34, 35, 36, 37, 38, 39 and 49 of Gujarat Town Planning and Urban Development Act 1976 have been and were transferred to the answering respondents - Corporation vide that order and other powers other then mentioned will be exercised by the Ahmedabad Urban Development Authority.
6. It is stated that it becomes clear from the order dated July 07, 2006 that at time of merger of the areas under AUDA to the Corporation, the State Government has transferred certain and specific powers of the Gujarat Town Planning and Urban Development Act 1976 to the answering respondent - Corporation and other powers other then the powers mentioned in the said order have been vested with the Ahmedabad Urban Development Authority and the AUDA will have to exercise those powers which are not transferred to corporation by the State Government. While transferring the powers the State Government has specifically not transferred the powers vested under Sections 67 and 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules 1976, which empowered the authority to evict the person or structure to the answering respondent. It is also pertinent to the state at this stage the Chief Executive Authority of Ahmedabad urban Development Authority was also aware about the same arrangement and considering the much said arrangement has passed an order bearing no. Planning/Pariptra/AMC/Limit dated 18/12/2006, whereby the CEA has ordered that in respect of the areas transferred to the AMC, AMC can exercise the powers vested in Sections 27 to 39 of the Gujarat Town Planning and Urban Development Act 1976 for the chapters registered on or after 01/01/2007 otherwise the chapters which are already registered with AUDA on or before 31/12/2006 the AUDA will take all the necessary steps of issuing the Development Permission and removing the illegal constructions in respect of the chapters registered with them on or before 31/12/2006.
7. It is pertinent to note at this stage and it's a matter of record that the Ahmedabad Urban Development Authority - AUDA - respondent No.1 herein has not supplied and handed over the records pertaining to the property in question. It is further stated that the answering respondent - Corporation has time and again reminded the respondent No.1 through the Senior Town Planner to intimate the answering respondents about the steps taken by them in this regards besides the written communication dated 20/2/2010 to the respondent No.1 in this regards".
3.1. Considering the aforesaid inter se dispute between Ahmedabad Urban Development Authority and Ahmedabad Municipal Corporation the powers to be exercised by Ahmedabad Urban Development Authority and Ahmedabad Municipal Corporation with respect to the plots which were initially withing the local limits of Ahmedabad Urban Development Authority but which were subsequently merged into Ahmedabad Municipal Corporation, the Joint Secretary, Urban Housing and Urban Development Department, Government of Gujarat was directed to be joined as party respondent to clarify the position and to remove the doubt. In response to the notice issued by this Court, Shri P.K. Jani, learned Government Pleader has appeared on behalf of the Secretary, Urban Housing and Urban Development Department, Government of Gujarat and an affidavit-in-reply was filed on behalf of the State Government submitting that the Government was not aware of the inter se dispute between the Ahmedabad Urban Development Authority and Ahmedabad Municipal Corporation and it is always open to both the respondents authority to approach the State Government for clarification, if there is any misconception, confusion or misunderstanding as regards the order dated 18/12/2006. It is further pointed out and clarified in paragraph 3 of the said affidavit-in-reply that Ahmedabad Municipal Corporation is empowered to take a decision with respect to the powers to be exercised under Sections 27 to 39 and 49 of the Gujarat Town Planning and Urban Development Act and it was also clarified that accordingly Ahmedabad Municipal Corporation can decide to grant or refuse any development permission, inclusive of revised development permission and take an action with respect to illegal construction. Paragraph 3 of the affidavit-in-reply reads as under;
"3.
I say and submit that vide Notification dated 20.7.2006 passed by the Urban Development and Urban Housing Department, Government of Gujarat, the area of Ghatlodia was included in the Municipal limits of Ahmedabad City. It is pertinent to note that, vide order dated 18.12.2006, the State Government in Urban Development and Urban Housing Department had directed the Ahmedabad Urban Development Authority to transfer the powers under Sections 27 to 39 and 49 of the Gujarat Town Planning and Urban Development Act, 1976 forthwith. It is pertinent to note that the said order came to be passed pursuant to the proposal submitted by the Ahmedabad Urban Development Authority dated 1.11.2006 under Section 22(3) of the Gujarat Town Planning and Urban Development Act, 1976 and accordingly the Ahmedabad Municipal Corporation is empowered to take decisions with respect to the above referred clauses and accordingly Ahmedabad Municipal Corporation can decide to grant or refuse any development permission and also take action with regard to the illegal construction".
3.2. Thereafter, considering the submissions made on behalf of the respective authorities and the State Government, this Court disposed of the aforesaid Special Civil Application by judgment and order dated 15/07/2010 by observing and holding in paragraph 8 as under;
8. Considering the stand taken by the respondent authorities i.e. AUDA and Ahmedabad Municipal Corporation, it appears that there was misconception and/ or confusion amongst the officer of the AUDA and Ahmedabad Municipal Corporation with respect to exercise of powers for granting development permission inclusive of revised development permission as well as to take action against illegal construction with respect to the lands/plots now included into local limits of the Ahmedabad Municipal Corporation which were earlier within the local limits AUDA. It has now been made clear and/ or clarified by the State Government as recorded herein above, and as affirmed by the Officer on Special Duty and Ex-officio, Joint Secretary Urban Housing and Urban Development Department, Government of Gujarat. Therefore, as per the above, as clarified by the Officer on Special Duty and Ex-officio, Joint Secretary Urban Housing and Urban Development Department, Government of Gujarat, power to sanction / grant and/or refuse the development permission and /or to take action with respect to the illegal construction with respect to the lands/plots which are included in the limits of Ahmedabad Municipal Corporation, which were earlier within the local limits of AUDA shall be with the Ahmedabad Municipal Corporation and, therefore, concerned authorities i.e. AUDA and Ahmedabad Municipal Corporation are required to take appropriate action in accordance with law and on merits and thus for the lands /plots which are now included within the local limits of Ahmedabad Municipal Corporation and which were earlier within the limits of AUDA, Ahmedabad Municipal Corporation is empowered and had to take action/steps with respect to grant/ refuse of development permission and revised development permission and illegal construction.
3.3. Thereafter, the petitioner-third party has preferred the present application to modify and/or review the order dated 15/07/2010 passed in Special Civil Application No. 987/2010 clarifying that Ahmedabad Municipal Corporation is empowered to exercise the powers under Sections 27 to 39 and 49 of the Act qua the chapters registered after 22/12/2006 and only the files pertaining to such chapters are to be transferred from Ahmedabad Urban Development Authority to Ahmedabad Municipal Corporation.
4. Shi Saurabh Amin, learned advocate appearing on behalf of the applicants has submitted that even prior to 22/12/2006, Ahmedabad Urban Development Authority continued to be the Area Development Authority and, therefore for all the chapters/files submitted prior to 22/12/2006 even with respect to the lands, which are included in Ahmedabad Municipal Corporation, the powers under Sections 27 to 39 and 49 of the Act for development permission and/or unauthorized construction continues to be with Ahmedabad Urban Development Authority and, therefore, Ahmedabad Urban Development Authority only has authority and/or jurisdiction to take steps and/or exercise the powers under the aforesaid provisions of the Act. It is further submitted that even the powers came to be exercised by the Government under Section 122 of the Gujarat Town Planning Act and the same are general powers and, therefore, the State Government cannot in exercise of the powers under Section 122 of the Act pass an order and/or direct that the powers under Sections 27 to 39 and 49 of the Act be exercised by the Ahmedabad Municipal Corporation for the lands, which are included into the local limits of Ahmedabad Municipal Corporation. It is further submitted that even to exercise the powers under Section 23(2) of the Act vide order dated 18/12/2006 is also illegal. Shri Amin, learned advocate appearing on behalf of the applicants has also pointed out the difficulties, which might be faced by the plot holders whose files were pending with Ahmedabad Urban Development Authority prior to 18/12/2006. Making the above submissions, it is requested to allow the present application.
5. The present application is opposed by the State Government by filing the affidavit-in-reply. It is submitted that as certain lands, which were earlier included within the local limits of Ahmedabad Urban Development Authority, came to be included in the local limits of Ahmedabad Municipal Corporation, the State Government has rightly passed the order under Section 23(2) of the Act directing that the powers under Sections 27 to 39 and 49 of the act with respect to the lands, which are merged into the local limits of Ahmedabad Municipal Corporation shall be entrusted to Ahmedabad Municipal Corporation for the period after 18/12/2006.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that some portion/area, which was initially under the control of Ahmedabad Urban Development Authority, came to be merged into the local limits of Ahmedabad Municipal Corporation vide notification dated 20/07/2006. The question arose with respect to exercising the powers under the Gujarat Town Planning Act with respect to the said areas, which were subsequently merged into the local limits of Ahmedabad Municipal Corporation and Ahmedabad Urban Development Authority sent a proposal, who was the Area Development Authority, under Section 22(2) of the Act to delegate the powers to the Ahmedabad Municipal Corporation to exercise the powers under Sections 27 to 39 and 49 of the Act for the area, which is subsequently merged into the local limits of Ahmedabad Municipal Corporation. Subsequently, the State Government, Urban Housing and Urban Development, State of Gujarat by order dated 18/12/2006 has delegated the powers to the Ahmedabad Municipal Corporation to exercise the powers under Sections 27 to 39 and 49 of the Act on or before 18/12/2006 with respect to the lands, which are included in the local limits of Ahmedabad Municipal corporation and, therefore, in exercise of the powers under Section 122 of the Act read with Section 22(2) of the Act, the State Government has exercised the powers and, therefore, on or before 18/12/2006 the powers under Sections 27 to 39 and 49 of the Act are to be exercised by Ahmedabad Municipal Corporation with respect to the lands, which are included in the local limits of Ahmedabad Municipal Corporation. Therefore, considering the above, when this Court has passed the judgment and order dated 15/07/2010 and has directed Ahmedabad Urban Development Authority to transfer the files/chapters to Ahmedabad Municipal Corporation with respect to the lands, which are now included in the local limits of Ahmedabad Municipal Corporation and Ahmedabad Municipal Corporation was directed to exercise the powers under Sections 27 to 39 and 49 of the Act with respect to the said lands, it cannot be said that the said direction/order passed by this Court is in any way contrary to the provisions of the Act. This Court had only clarified what was mentioned in the order passed by the State Government under Section 23(2) of the Act read with Section 122 of the Act. Under the circumstances, the same is not required to be reviewed in exercise of review jurisdiction. If the contention on behalf of the applicants is accepted, in that case, it will amount to absurdity and despite the fact that the lands in question are included in the local limits of the Ahmedabad Municipal Corporation, if the powers are continued with Ahmedabad Urban Development Authority it will be conferring the powers upon Ahmedabad Urban Development Authority to exercise the powers with respect to the lands, which are included int the local limits of Ahmedabad Municipal Corporation.
7. Under the circumstances, the applicants are not entitled to review the order as prayed for in the present application and the same deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji