Gujarat High Court
Mukeshbhai Bhudarbhai Patel vs Bopal Gram Panchayat & 4 on 4 August, 2006
Author: Jayant Patel
Bench: Jayant Patel
SCA/12741/2006 1/9 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 12741 of 2006
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MUKESHBHAI BHUDARBHAI PATEL - Petitioner(s)
Versus
BOPAL GRAM PANCHAYAT & 4 - Respondent(s)
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Appearance :
MR PRANAV M RAVAL for Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 3.
HL PATEL ADVOCATES for Respondent(s) : 1,
MR BHARAT T RAO for Respondent(s) : 2,
MR MENGDEY, AGP for Respondent(s) : 3,
None for Respondent(s) : 4,
MS RV ACHARYA for Respondent(s) : 5,
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 04/08/2006
ORAL ORDER
1. Heard Mr.Raval, learned Counsel for the petitioner, Ms.Joshi, learned Counsel for Respondent No.1, Ms.Acharya, learned Counsel for Respondent No.5, Mr.B.T.Rao, learned Counsel for Respondent No.2 and Mr.Mengdey, learned AGP for Respondents No.3 and 4.
2. Upon hearing the learned Counsel appearing for both the sides and the perusal of the record prima facie shows that the petitioner is one of the members of Dwarkesh Apartment, which is a non-trading Corporation duly registered under HC-NIC Page 1 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 2/9 ORDER the provisions of the relevant Act. There is no dispute on the point that flats are occupied by various persons and brother of respondent No.2 was the developer, who made construction. There is also no dispute on the point that respondent No.2 is the person, who has been allotted the basement admeasuring 3600 sq. ft. in Dwarkesh Apartment identified as "S-1". The only grievance appears to be that as per Respondent No.2 for a portion of margin land adjacent to the basement, as per the say of respondent No.2, the right of user is given by the developer against the payment of consideration of Rs.1,25,000/-. There is also no dispute on the point that no construction permission is granted by any authority for making for construction over the margin land. The photographs show that the area of margin land is covered by shed and some walls are also constructed in the margin land, for which no permission is granted by any authority.
3. As such when a property is owned by non-trading Corporation, all common area, including the HC-NIC Page 2 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 3/9 ORDER margin land in any apartment or flats is to be used for common purpose. No member can, as of right, assert exclusive use or ownership, unless it is expressly provided in the Scheme floated at the time when the construction scheme was proposed by N.T.C. In the present case, the circumstance that the brother of respondent No.2 himself was the developer of the scheme is an aspect to be considered as against the allegation of the petitioner that the dummy office-bearers were projected as the Chairman and the Secretary of the Association. Even if the said aspect is kept aside and the case of the Respondent No.2 is considered, then also the case of Respondent No.2 is that exclusive use of the land is permitted over a portion of margin land. All licences have been granted by the concerned authority for running the restaurant from basement and not for running hotel over a margin land. It is not the case of the respondent No.2 also that any construction permission is granted for making construction over the margin land. The margin land has to be HC-NIC Page 3 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 4/9 ORDER made open to sky in absence of any permission from the local authority and, therefore, the construction made, may be by wall or roof structure and some internal construction over the margin land, prima facie appears to be illegal. Taluka Development Officer (TDO) has also issued notice for removal of such construction and it is obligatory on the part of the authority to ensure that such an illegal coverage of the margin land by respondent No.2 is made open to sky as the authorities were soft-peddling in discharge of their duty, the present petition for directing the Gram Panchayat to take steps as per the letter of TDO.
4. Mr.Rao, learned Counsel appearing for Respondent No.2 vehemently contended that it is a dispute between the members of the Society and the Developer, who is the brother of respondent No.2 and respondent No.2 has been occupying the margin area since about four years and it has been submitted that the petitioner has not come with clean hand and this Court may not exercise HC-NIC Page 4 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 5/9 ORDER the power when the petition is filed for settling the private dispute. He also submitted that the ingress and outgress of all the residences are separate and respondent No.2 has not created any obstacle. In support of his submission he has relied upon the decision of the Apex Court in case of "Mohan Pandey and Anr. Vs. Usha Rani Rajgaria (Smt) and Ors.", reported in 1992(4) SCC, 61; another decision in case of "Supriyo Basu and Others v. W.B. Housing Board and Others", 2005(6) SCC, 289; and another decision of the Apex Court in case of "Prasanna Kumar Roy Karmakar v. State of West Bengal and Others", reported in AIR 1996 SC, 1517. Even if all the decisions are considered, the observations of the Apex Court are that when it is a question of enforcement of public duty or statutory duty this Court would normally entertain the petition under Article 226 of the Constitution of India and writ may be maintained, but the Court may not exercise the power under Article 226 of the Constitution of India for settling or for entertaining the HC-NIC Page 5 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 6/9 ORDER private dispute. In the present case, as per the provisions of the Gujarat Panchayat Act, Section 104 read with Section 105, it is a matter pertaining to the exercise of the statutory power and duty enjoined as per the statute coupled with the public duty to see that illegal projections or structures, if comes on record, are removed. In the present case, there is one additional aspect that the TDO has already intimated to the Gram Panchayat for removal and the Gram Panchayat is even otherwise statutorily bound to comply with the order passed by Taluka Panchayat or TDO unless the order is set by any higher forum. In a matter when the subject is concerning to unauthorised projection on a margin land affecting to all the residents of the apartment without there being any permission for such construction and when the statutory authority has intimated but no actions are taken under the Gujarat Panchayat Act, it would not be a case for settlement of private dispute, but can be a case for enforcement of the statutory duty and if there HC-NIC Page 6 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 7/9 ORDER is abdication thereof, the citizens who are to be aggrieved by such abdication or lethargy on the part of the authority can be said as justified in approaching this Court by invoking the jurisdiction of this Court under Article 226 of the Constitution of India and, therefore, the decision upon which the reliance is placed are of no help to respondent No.2.
5. Even otherwise also, as observed earlier, when it is not in dispute that any construction permission is not granted for covering the area of margin land and the licence has been granted for running restaurant only from basement and the area allotted to respondent is of basement admeasuring 3600 sq. ft, the action on the part of respondent authorities namely; respondent No.1, can be said as abdication from the statutory duty so far as it relates to not taking steps for making the area of margin land open to sky by removal of the so-called temporary projection or otherwise.
6. In view of the above, I am inclined to pass the following order:
HC-NIC Page 7 of 9 Created On Fri Aug 14 13:21:42 IST 2015 SCA/12741/2006 8/9 ORDER (1) RULE.
(2) By interim order it is directed that Respondent No.5 shall take steps with the assistance of Respondent No.1 and if required, with the assistance of Respondent No.4 also, to see that the area of margin land, which are in possession of Respondent No.2 are made open to sky and such exercise shall be completed and report shall be made to this Court on or before 29.8.2006. (3) It is made clear that Respondent No.2 shall be at liberty to remove the so-called structure over the margin land on his own on or before 18.8.2006 and if there is failure on the part of Respondent No.2, appropriate action shall be taken as ordered earlier by the concerned respondents and the report shall be made accordingly, including that of actual removal of the structure covered over the margin land.
(4) It is also made clear that the
possession of respondent qua the area of
basement shall remain undisturbed and
HC-NIC Page 8 of 9 Created On Fri Aug 14 13:21:42 IST 2015
SCA/12741/2006 9/9 ORDER
respondent No.2 shall be at liberty to use the basement for his own purpose, as may be permissible in law.
7. S O to 30.8.2006 for reporting compliance of the order and for passing further orders.
8. Mr.Rao, learned Counsel appearing for Respondent No.2 prays for suspending the operation of the order for a period of two weeks so as to enable respondent No.2 to approach before the higher forum. Considering the facts and circumstances, as even otherwise also direction to remove the so-called temporary structure is already granted to respondent No.2 up to 18.8.2006, it is not necessary to grant any additional time, considering the facts and circumstances and, therefore, the said request is rejected. 4.8.2006 (Jayant Patel, J.) vinod HC-NIC Page 9 of 9 Created On Fri Aug 14 13:21:42 IST 2015