Gujarat High Court
Radiant Alloys Through Partner ... vs State Of Gujarat Through The Secretary on 11 March, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/13035/2018 ORDER DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13035 of 2018
==========================================================
RADIANT ALLOYS THROUGH PARTNER NAYANBHAI HARSHADBHAI
PATEL
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & 2 other(s)
==========================================================
Appearance:
DHRUVIK K PATEL(7769) for the Petitioner(s) No. 1
MR AYAAN PATEL, AGP for the Respondent(s) No. 1
MR PRIYANK V PANDYA(10705) for the Respondent(s) No. 4
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
MR SUBRAMANIAM IYER(2104) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 11/03/2022
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed with a prayer to direct the respondent-Ahmedabad Municipal Corporation (hereinafter referred to as the "Corporation") to reconsider the application of the petitioner which was inwarded vide Inward No.LTA/SZ/110817/GDR/A8955/MO dated 11.08.2017 . It is also prayed that while considering the aforesaid application, the petitioner may also be heard. Pending the application, the petitioner has also prayed that the respondent-corporation be restrained from disturbing or demolishing or applying seal on the property bearing Plot Nos.25A and 25B admeasuring about 495.94 sq.mtrs. and 486.41 sq.mtrs., respectively situated in Sardar Patel Industrial Estate and Ware Housing Owners Association constructed on the Survey No.211/1 to 211/4, 243/2, 244/1 to 244/4, T.P.Scheme No.56, Final Plot No.82, Page 1 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 mouje Narol Shahwadi, District Sub District Ahmedabad (herein after referred to as the "subject plot"). The petition was also filed against the action contemplated by the Corporation under Section 260 of the B.P.M.C Act.
2. It is the case of the petitioner that the respondent authorities are not approving the plan submitted by the petitioner for approval of the construction on the subject plot. It is submitted that though the application is made and the petitioners along with the applications have submitted all the necessary documents in support despite that their application is not being considered and now, the petitioner is informed that such application is "filed" and not considered. The reason given is that the application does not have all necessary documents especially the documents regarding the sub-division of the plot viz. Plot Nos.25A and 25B, and as the new construction is on the two plots of the final plot, the amalgamation of such two plots is necessary. The respondent-corporation in absence of any evidence regarding sub-division of the plot is unable to consider the application for approval which require amalgamation of plots.
3. Learned advocate for the petitioner submits that the subject plot consists of a ground floor, first floor and second floor at present, however, the petitioner is a subsequent purchaser into the property, which was in existence much prior to 1976 and the construction was in dilapidated condition. However, such construction was subsequently regularized by payment of impact fee and the certificate of regularization was issued on 17.02.2016.
Page 2 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022C/SCA/13035/2018 ORDER DATED: 11/03/2022 4. It is the case of the petitioner that even in the
regularization certificate, the plot numbers allotted to the subject plot is 25A and 25B, and therefore, the petitioner had reason to believe that the two plots are separate plots, and therefore, the petitioner had given an application for amalgamation along with the application for approval of plan.
5. It is submitted that the constructions, which are existed as per the regularization certificate was in much dilapidated condition and would be dangerous to the life and property, and therefore, was required to be replaced. It is submitted that the majority construction was only for the purpose of protecting the property itself for which as such no permission would be required, but still to be on safer side, the petitioner did make an application for the development permission despite the respondent-corporation has issued notice under Section 260 of the BPMC Act and have initiated the proceedings to demolish the construction. It is submitted that the petitioner had initially filed civil suit, which according to the petitioner, is pending for hearing of notice of motion when the petition was filed.
6. It is submitted that the petitioner has submitted the revised plans along with all the documents and also the requisite fees, and therefore, the application, as mentioned herein above was inwarded on 11.08.2017 to which the learned advocate for the petitioner submits that it is obligatory on the part of the respondent-corporation to scrutinize and take a decision. The decision taken by the respondent-corporation is of filing the application for lack of documents, which cannot be termed to be a decision at all. In fact, the petitioner himself had made an Page 3 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 application to the respondent-corporation to receive the copy of the division of plot, if it is available in the record of the corporation. If it is not available with the respondent- corporation, the petitioner would be helpless, but even in such condition, the petitioner cannot be deprived of the development permission.
7. As against this, the learned advocate for the respondent- corporation submitted that the petition itself is not maintainable by the petitioner on account of his conduct. It is submitted that though the petitioner was restrained from carrying out any construction on the subject plot even though seals were applied, the petitioner has shown scant regard for the rule of law, have broken the open seal and had proceeded to carry out the construction. It is submitted that merely because the regularization certificate indicates Plot No.25A and 25B will not go on to mean that there were two plots which the petitioner had purchased, as in the records of the corporation, there are no two plots, and therefore, there is no question of amalgamation. It is submitted that under the provisions of GPMC even if the existing construction is to be pulled down and be replaced by a new construction, it was obligatory for the petitioner to make an application for sanctioning a plan and only after such approval/sanctioning of the plan, the commencement of the construction at site is permissible. It is submitted that without following the mandatory provisions of Chapter-15 of the GPMC Act, the construction was started, and therefore, the notice was issued to stay the construction, however, the petitioner had proceeded to defy the order of prohibiting construction and carried out the entire construction.
Page 4 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022C/SCA/13035/2018 ORDER DATED: 11/03/2022
8. Learned advocate for the respondent drew attention of this Court to the photographs annexed along with affidavit-in-reply to give a comparative idea about the construction, which was existing pursuant to the regularization order and the construction now existing. It is submitted that it is after following the due procedure, the order was passed for demolition of the construction, however, with due reference to the pendency of the petition, the demolition activity has not been carried out. It is submitted that one more aspect to show the petitioner has not shown any regard is that the petitioner has proceeded to remove the seal applied and by giving undertaking that he would withdraw the civil suit and would also get the plan sanctioned before proceeding ahead with any construction. Despite this, the petitioner has proceeded to finish the construction, as now it stands.
9. Learned advocate for the subsequently added respondent has also supported the arguments made on behalf of respondent-corporation stating that the respondent no.4 is an interested party, as it was at the behest of the respondent no.4 that the illegality committed by the petitioner came to be lied and the respondent- corporation has acted in accordance with law. It is submitted that it is required for the respondent to file a civil suit for seeking restrained order against the petitioner for putting up any illegal construction on the plot.
10. As against this, the learned advocate for the petitioner in rejoinder submitted that the allegations of the petitioner to remove the seal and put up the construction was only to protect the construction existing, as the period during which this activity of putting up construction by removing the seal is Page 5 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 concerned, the same was during the period when the Ahmedabad was hit with cyclone and excessive rain, which would have damaged the entire subject plot beyond repair.
11. In so far as the respondent no.4 is concerned, the learned advocate for the petitioner submitted that he is a busy body and for the purpose of extortion, the respondent no.4 is filing the application after application and against him, in fact, the FIR is registered.
12. Having considered the rival submissions made by the learned advocates for the parties and having perused the documents on record, at the outset, the contention raised by the respondent no.4 do not require any consideration, as the respondent-corporation has taken up the cause and has proceeded as per the provisions of law. Considering the submissions made by the learned advocate for the respondent no.4 and the documents, which have come on record to indicate the status of the respondent no.4 and the respondent no.4 being charge-sheeted for the offences under Sections 384, 294, 506, 114 etc. of the IPC and the history, which indicate the respondent no.4 conduct is not beyond doubt. The Court is not influenced by the submissions made by the learned advocate for the respondent no.4.
13. From the record, it appears that there was illegal construction at site i.e. upon Final Plot No.82 of Town Planning Scheme No.56 (Narol-Shahiwadi). In view of the provisions of the Gujarat Regularization of Unauthorized Development Act, 2011, an application was filed by the owner and occupier of Plot No.25/A + 25/B in the Final Plot No.82. The said application Page 6 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 was duly considered by the competent authority and ultimately, vide certificate/order dated 17.02.2016 the old construction was regularized under the provisions of GRUDA Act, 2011. At the relevant point of time, the map which was approved by the competent authority under the GRUDA Act, specifically mentions that in the key plan / site plan, Plot Nos.25A+25B are referred just for reference. Thus, there is nothing on record to suggest that Final Plot No.82 was ever sub-divided under the provisions of the law. As per the provisions contained under Clause-13 of the Comprehensive Development Plan (General Development Control Regulation), for the purpose of amalgamation of plot, there has to be either 2 separate plots or sub-division or reconstitution of the land.
13.1 From the record, it appears that after above referred regularization under the GRUDA Act in the year 2016, the old construction was demolished by the petitioner, and thereafter, the petitioner has started new construction without there being any sanctioned plan whatsoever. As per the provisions contained in the Gujarat Provincial Municipal Corporation Act, the petitioner was under obligation to obtain prior approval and/or sanction before commencing the construction at site. However, without following the mandatory provision of law contemplated under Chapter-XV of the GPMC Act, 1949, the illegal construction was started at site by the petitioner. Therefore, the notice/stay order, as contemplated under Section 267 of the GPMC Act was passed by the answering corporation and the petitioner was directed to stop the illegal construction at site.
13.2 From the record, it appears that the above referred proceedings proceeded and after issuing notice under Section Page 7 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 260(1) of the GPMC Act, an order of demolition under Section 260(2) of the Act is already passed.
13.3 From the record, it appears that the premises of the petitioner was subjected to sealing by the competent authority. However, the said seal was broken by the petitioner and, therefore, a complaint under Section 188 of the Cr.P.C. was filed by the answering corporation.
13.4 From the record, it appears that the petitioner when came into the possession of the subject plot, there was an order for regularization under the certificate of regularization dated 17.02.2016 in the name of erstwhile occupier viz. G.T.K Intermediate Private Limited (Annexure-C). This would indicate the block /number stated in the certificate to be 25A + 25B which appears to have given bonafide impression to the petitioner about their being two plots viz. 25A and 25B which the petitioner had purchased from the erstwhile owner. It appears that under such impression, the application for amalgamation was also filed when the new plan for construction submitted to the respondent-corporation.
14. The submissions made on behalf of the respondent- corporation cannot be disregarded to the extent that the permission when sought for two plots independently and two plots jointly will have effect on the overall development of the final plot i.e. to say Final Plot No.82 in the instant case, as the Final Plot No.82 has been divided into many sub-plots, which have also been given permission treating such plots to be independent plots. Therefore, if the application of the petitioner for the Plot Nos.25A and 25B is considered to be an application Page 8 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 for development on one joint plot consisting of two sub-plots, then the requirement under the GDCR would be completely different, then that of an individual plot and consequentially there would be a consequential effect on the overall development of Final Plot No.82.
15. In view of the aforesaid peculiar facts, it would be appropriate to direct the petitioner to submit afresh plans for development permission by considering the existing record of the respondent- corporation, meaning thereby, if the Plot No.25A and 25B are the independent plots, then the application may be made for development permission accordingly and the respondent-corporation may consider such application in accordance with law afresh. While considering such application, it is will be open for the respondent-corporation to grant an opportunity of hearing to the petitioner. Upon consideration of fresh plan in accordance with the applicable GDCR, the petitioner will be obliged to make the changes in the existing construction to bring it inconfirmity with the plan that may be passed afresh in accordance with provisions of the GDCR.
16. Now referring to the conduct of the petitioner for removing the seal and embarking upon construction and in fact, finishing the construction, the Court has taken into consideration the photographs, which would show the marked difference in the construction, which existed as per the regularization order and the construction put up and now existing. It is apparent that the construction put up so far is in flagrant violation of the provisions of GPMC, as even when the existing construction as per the regularization certificate was pull down and new construction was being put up, there was no application, as Page 9 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022 C/SCA/13035/2018 ORDER DATED: 11/03/2022 required under the provision of the GPMC for putting up the construction. Therefore, it is apparent the attitude of the petitioner was to put up the construction in flagrant violation of the Act, and thereafter, to plead before the authority that he has made huge investment in putting up the construction which consist of ground floor, first floor and second floor so as to seek permission of the construction on post facto effect. Such an attitude of the petitioner requires to be deprecated strongly and hence, the Court directs the petitioner to pay an amount of Rs. 1 lac for commission of breach of notice, removal of seal and putting up the unauthorized construction. This amount would be in addition to any amount that the respondent-corporation may get by way of penalty pursuant to any proceedings that may be initiated in accordance with law against the petitioner.
17. In view of the aforesaid, the petition now stands disposed of with the direction to the petitioner to make afresh application for development permission to the respondent-corporation to bring in it inconformity with the record of the respondent- corporation in connection with the subject plot, which is the part of Final Plot No.82 of T.P.Scheme. In the meantime, the petitioner will maintain status quo with regard to the construction existing on the site. The respondent-corporation shall apply seal on the subject plot. The respondent-corporation shall consider the application for development permission afresh after granting an opportunity of hearing to the petitioner and decide upon such application within a period of three months from the date of receipt of copy of present order. Till the decision is taken on the development permission, the respondent- corporation is restrained from demolishing the existing structure on the subject land.
Page 10 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022C/SCA/13035/2018 ORDER DATED: 11/03/2022
18. It will be obligatory for the petitioner to bring the existing construction inconfirmity with the decision taken by the respondent-corporation upon the fresh development permission application made by the petitioner.
With the aforesaid, the present petition stands disposed of.
(A.Y. KOGJE, J) GIRISH Page 11 of 11 Downloaded on : Sat Dec 24 12:36:36 IST 2022