Gujarat High Court
Karamchand Perumal Navani & 2 vs Muncipal Corporation Of City Of ... on 31 January, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/15943/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15943 of 2016
With
SPECIAL CIVIL APPLICATION NO. 15944 of 2016
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KARAMCHAND PERUMAL NAVANI & 2....Petitioner(s)
Versus
MUNCIPAL CORPORATION OF CITY OF AHMEDABAD &
4....Respondent(s)
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Appearance:
MR KV SHELAT, ADVOCATE for the Petitioner(s) No. 1 - 3
DS AFF.NOT FILED (N) for the Respondent(s) No. 5
MR NEERAJ ASHAR, AGP and MS VS PATHAK AGP for the Respondent(s)
No. 2
MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 31/01/2017
ORAL ORDER
1. These petitions have been preferred seeking directions to Ahmedabad Municipal Corporation for Building Use (BU) Permission and regularization of the building which has been constructed by the builder on behalf of the petitioners.
2. As per facts of the case, the proprietor of the "Maya Avenue" petitioner No.1 is a builder, bona-fide purchaser for value and owner of the scheme who has alloted various Page 1 of 4 HC-NIC Page 1 of 4 Created On Thu Feb 02 03:19:27 IST 2017 C/SCA/15943/2016 ORDER flats to the allottees - occupiers after constructing 19 residential flats as per development permission granted by Ahmedabad Municipal Corporation while petitioner No.2 and 3 are from amongst those allottees - occupiers, whose residential flats have been sealed without notice and without hearing.
3. It is the case of the petitioners that they were bona-fide purchasers of the aforementioned flats. However, on 1.9.2016, their flats have been sealed by the respondent-Corporation. It is their case that in the first building as many as 19 flats have been constructed out of 17 have been occupied by various owners, however, 2 flats belonging to the petitioners have been sealed without notice while in the second building, 21 flats have been constructed and out of which 16 flats are occupied while 5 flats are occupied by the petitioners. On the relevant date, the petitioners were out of station and in their absence, their premises have been sealed.
4. Respondent-Corporation has put in appearance and filed reply by way of affidavit wherein it has been stated that as per the provisions contained in Gujarat Provincial Municipal Corporation Act, 1949 read with Gujarat Town Planning & Urban Development Act, 1976, the aforementioned permission for construction was issued by the respondent- Corporation, however, BU permission as contemplated in the Act is still awaited. It is further submitted that on the basis of instructions received from the Collector, the Corporation was within its right to seal these flats.
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5. This Court has considered the submissions of both the sides. It is not in dispute that as many as 19 flats have been constructed in the first building while 21 flats have been constructed in the second building. Out of 19 flats in the first building, 17 flats are being occupied and only 2 flats belonging to the petitioners have been sealed. Similarly, in other building, 16 flats have been occupied by the owners, however, remaining 5 flats have been sealed. These seals seem to have been put in view of letter issued by the Collector with an apprehension that the land on which the construction has been raised may be belonging to the Government and under these circumstances, Collector issued instructions to the Corporation not to grant BU Permission till scrutiny is completed.
6. As argued by learned counsel for the parties, scrutiny, in these cases, may take some time and merely on the basis of apprehensions, petitioners cannot be deprived to stay at their residence. Once it is established that all these constructions have been raised after grant of due permission by the concerned Municipal Corporation, putting seal on the basis of such type of assumptions, may not be permissible. This is particularly so when majority of the units are being occupied by the allottees and only 2 owners of the flats in the first building and 5 owners of the flats in the second building, have been deprived of their residence by putting seal. Otherwise also, these seals seem to have been put without issuance of any notice and without affording an opportunity to the petitioners to explain their cases.
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7. In view of the aforementioned discussion and without going into the merits at this stage, respondent- authorities are directed to remove the seals forthwith. The respondents shall be permitted the petitioners to use their premises during pendency of scrutiny proceedings. However, occupation and use of the petitioners regarding these flats will be subject to final outcome of the scrutiny of the concerned authorities. Petitioners will not transfer, sale or mortgage the units occupied by them till the aforementioned scrutiny is over. Petitioners will also not claim any equity subject to their right to challenge, if permitted under the law. Respondent- authorities will conclude their scrutiny process expeditiously and preferably within a period of 6 (six) months from the date of receipt of copy of this order, failing which, concerned Municipal Corporation will consider for the grant of necessary permission after the period of 6 months
8. Petitions stand disposed of accordingly. Direct service is permitted.
(MOHINDER PAL, J.) ashish Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Feb 02 03:19:27 IST 2017