Gujarat High Court
Sujan vs Ahmedabad on 13 October, 2008
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCA/19869/2007 3/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 19869 of 2007
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SUJAN
INFRASTRUCTURE PVT. LTD. - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPN. - Respondent(s)
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Appearance :
MR
KAVINA WITH MR AB MUNSHI for Petitioner(s) : 1,
MR PRASHANT G
DESAI WITH MR PANDYA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 13/10/2008
ORAL
ORDER
1. Heard Mr. Kavina, learned counsel with Mr. Munshi, learned counsel for the petitioner, Mr. Desai, learned counsel with Mr. Pandya, learned counsel for the respondent Corporation.
2. Prima facie it appears that it is not disputed that when the plans were sanctioned, open space was provided in the shopping center/mall, which is subject matter of the present petition. The contention of the petitioner is that with a view to avoid the rainy water and other nuisance of birds etc., the coverage is made for open space by way of temporary structure. Whereas it is the contention of respondent Corporation that after having covered the open space, it is used for commercial purpose. It is also contended on behalf of the Corporation that as per the Section 253-F of Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the ?SAct??) even for roofing or coverage of the open space, permission is required to be obtained. It was further submitted on behalf of the Corporation that had the petitioner's intention to cover the open space, the matter could have been considered for permissible FSI or otherwise, therefore, it has been submitted that the action cannot be said as illegal.
3. It prima facie appears that if the approved plans show that the area is to be kept as open space, the same is required to be maintained as open space, but that does not mean that the coverage by way of temporary arrangement for the open space is totally prohibited. With a view to avoid complications of the change in weather including rainy water, if the coverage is by way of purely temporary structure, such may not be prohibited totally. However, at the same time, it would not be open for the occupiers to cover the same without prior permission unless there is very extreme urgency. At that stage the Corporation may provide or may even put certain restrictions in a manner to see that open space is maintained for the purpose, for which the same was provided at the time, when the construction plans were sanctioned.
4. It appears that in the present case, coverage by the petitioner is by way of temporary structure, but in any case as the same is without prior permission, it may be required for the petitioner to approach before the Corporation for appropriate permission and at that time, the Corporation by maintaining the object of open space, may provide certain alteration or change, but will keep in mind that coverage by temporary structure with an intention to avoid weather hazards, is not to be considered as the permanent coverage for roofing of the open space.
5. The learned counsel for the respondent Corporation is right in submitting that if the open space is actually used or occupied for commercial purpose, the same is in case prohibited. During the inspection if it is found that the open space though covered by any temporary cover to avoid weather hazards, is used for commercial purpose, the Corporation may take suitable measures. If the developers or association or owner of the premises has allotted the shops to various persons and the association is looking after the maintenance of the open space, it would be required for association to ensure that open space is used only as common facility and not made available for exclusive use purpose of any person nor the same is allotted or assign specifically to any person or occupier.
6. Hence, RULE. By way of interim order, it is directed that the petitioner shall move the Corporation for seeking permission for coverage of the open space and at that stage, the petitioner may also bring it to the notice of the Corporation by way of an immediate arrangement, the coverage is made by the petitioner. Officer of the Corporation shall examine and may provide the alteration, after keeping in view the observations made hereinabove in the present order and shall take appropriate decision. If the permission is granted requiring modification of the coverage, it would be for the petitioner to ensure that such alterations/modifications are undertaken and the coverage is meeting with the requirements as per the permission of the Corporation. In the event, the Corporation declines the permission, the same shall be placed on record by the Corporation. The aforesaid exercise shall be completed by moving appropriate application by the petitioner within one month and the Corporation shall finalize the same within three months. Until the Corporation shall finalize the application of the petitioner, the status-quo as prevailing shall be maintained, but after the decision of the Corporation, if alteration is to take place, the same will be permissible and the present order or the status-quo shall not operate as a bar. In the event, permission is declined by the Corporation, it would be open to the petitioner to move appropriate application seeking interim order afresh.
7. It is also observed that irrespective of the permission is granted or otherwise, the open space shall not be used for any commercial or exclusive occupation of any of the occupier and it will be required for the petitioner to ensure that such is not permitted. In the event, the Corporation makes inspection and gets report on the said aspect that such space is used for any commercial purpose, it would be open to the Corporation to immediately seize the articles, which are lying in the open space and it would be open to the Corporation to move this Court for further orders as may be permissible in law by preferring interim application.
(JAYANT PATEL, J.) ynvyas Top