Gujarat High Court
Jagdishbhai vs Ahmedabad on 2 August, 2011
Author: R.Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
Print
SCA/15696/2010 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15696 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16258 of 2010
=========================================================
JAGDISHBHAI
J DAVE & 1 - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPORATIO. THROUGH & 1 - Respondent(s)
=========================================================
Appearance
in Special Civil Application No.15696 of 2010:
MR.AMIT
PANCHAL with MR D K.PUJ
for
the Petitioners
MR RM CHHAYA for Respondent(s) : 1,
MR PC
KAVINA,SR. ADVOCATE with ASHISH H SHAH for Respondent(s) : 2,
Appearance
in Special Civil Application No.16258 of 2010:
MR
PC KAVINA, SR.ADVOCATE with MR ASHISH H SHAH for the Petitioner
MR
RM CHHAYA for the
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 27/12/2010
COMON
ORAL ORDER
1. Special Civil Application No.15696 of 2010 is filed by two petitioners, as stated in the cause title, they are residents of Vasantkunj Society, Sukhipura, Paldi, Ahmedabad. Petitioner No.1 is residing in Bungalow No.27 and petitioner No.2 is residing in Bungalow No.37. The relief prayed for by them is as under:-
"8(B) Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, directing respondent No.1 (Ahmedabad Municipal corporation) to take appropriate action against the Respondent No.2 (Ratnayatri Aradhana Bhavan Trust) for using the Sub-Plot No.42 Vasantkunj Society, Paldi, Ahmedabad as "Aaradhana Bhavan" without seeking any permission from the competent authority and for constructing Jain Temple over the Sub-Plot No.46 Vasantkunj Society, Paldi, Ahmedabad without seeking any permission or getting any Plan sanctioned from the Respondent No.1."
(emphasis supplied) An order was passed in this petition on 8.10.2010. After that order was passed, the Ahmedabad Municipal Corporation (hereinafter referred to as 'the Corporation' for short) issued notices under Section 478 of the Bombay Provincial Municipal Corporation Act, 1949 ('BPMC Act' for short) on 13.12.2010 and also under Section 260(1).
1.1. Notice issued on 13.12.2010, under Section 478 of the BPMC Act is challenged by filing Special Civil Application No.16258 of 2010. Thus, the subject matter is interconnected/ interrelated in both these matters.
1.2. So far as Special Civil Application No.15696 of 2010 is concerned, the Corporation has started taking action in the matter. Learned advocate Mr. Chhaya, on instructions, states that the Corporation will continue to take action in accordance with law. Special Civil Application No.15696 of 2010 is disposed of. Notice is discharged.
2. Coming to Special Civil Application No.16258 of 2010, respondent No.2 of Special Civil Application No.15696 of 2010 is the petitioner and the relief sought for in this petition is as under:-
"15.b This Hon'ble Court will be pleased to issue writ of or in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned communication dated 13.12.2010 issued by the respondent-Corporation."
2.1. Learned senior advocate Mr. Kavina while attacking the notice dated 13.12.2010 issued under Section 478 of the BPMC Act submitted that though it is branded as a 'notice', it is an 'order' because it says that, 'breach of Regulation 6(1) of Chapter XII of the BPMC Act be done away with, within 7 days, i.e. by stopping the unauthorized use, or else, the Corporation will have to stop that unauthorized use departmentally and that will be at the cost and risk of the addressee of the notice and expenses will be recovered from the addressee.' 2.2. The learned senior advocate for the petitioner (Special Civil Application No.16258 of 2010) submitted that this amounts to adjudicating the matter without granting an opportunity of hearing to the affected person.
2.3. Learned advocate Mr. Chhaya appearing for the Corporation, invited attention of the Court to Section 478 of the BPMC Act. The learned advocate for the Corporation submitted that it is true that the notice is issued in the form of an order, but as the law is well settled, and the principles of natural justice are to be read into the provision, the learned advocate for the Corporation submitted that Corporation is ready to give hearing to the petitioner (of Special Civil Application No.16258 of 2010).
3. Learned senior advocate for the petitioner (Special Civil Application No.16258 of 2010) submitted that in the understanding of the petitioner, the use of the building as 'Aradhana Bhavan' is noway illegal and therefore, if the petitioner is driven to the authority to explain or reply to the notice in question (under Section 478 of the BPMC Act dated 13.12.2010), it is going to be a futile exercise. The learned senior advocate therefore requested that if deemed fit, the Court may decide as to whether by using the building as 'Aradhana Bhavan', the petitioner has committed any breach of Regulation 6(1) of Chapter XII of the BPMC Act.
4. Learned advocate for Corporation invited attention of the Court to the General Development Control Regulations ('GDCR' for short) and specifically referred to Definitions Clause, which defines 'Building, wherein Clause 2.9 pertains to ' Assembly building', which reads as under:
"(a) "Assembly building"
means a building or part thereof where groups of people congregate or gather for amusement, recreation, social, religious, patriotic, civil travel and similar purposes.
" Assembly building" include buildings of drama and cinema theatres, city halls, town halls, auditoria, exhibition halls, museums, "marriage hall", "skating rings", gymnasia, stadia, restaurants, eating or boarding houses, place of worship, dance halls, clubs, gymkhanas, road, air, sea or other public transportation stations and recreation piers. (emphasis supplied) 4.1. As against that, Clause (n) defines 'Residential Building', which reads as under:-
"(n) " Residential Building"
means a building in which sleeping accommodation is provided for normal residential purposes, with or without cooking or dining facilities, and includes one or more family dwellings, lodging or boarding houses, hostels, dormitories, apartment houses, flats and private garages of such buildings."
(emphasis supplied)
5. Learned advocate for the Corporation also invited attention of the Court to Regulation 12.1, which pertains to 'Uses Not permissible'. Regulation 12.1 reads as under:-
Road Width Uses not permissible
a) 18 mts. & above.
All educational institutions up to SSCE level,
b) 12mts. And less than 18 mts.
(1)High rise buildings, Cinema Hall, meeting/ community/lecture / town hall, auditorium, petrol pump, Head and Regional/public establishments, starred-hotels, college, technical institution, general hospital, polyclinic.
(2)Provided in the case of draft T.P. Scheme area submitted to the Govt. for sanction, up to the date of publication of the revised draft development plan under section - 13 of the Act, high rise building shall be permitted on 12 mts. and above roads.
c) 9 mts. And less than 12 mts.
(1)All uses mentioned in (b) above and building with more than 13 mt. Height. (Excluding hollow plinth)
d) less than 9 mts.
All uses mentioned in (C) above and building with more than 10 mts. Height. Apartments/Flat type building. (Excluding hollow plinth) It will be appropriate to note that GDCR provides that, 'all educational institutions up to SSCE level' should be on road having width of 18 meters and above. Similarly, all cinema halls, meeting/ community/lecture/town hall, auditorium, petrol pump, Head and Regional/ public/ establishments, starred- hotels, colleges, technical institution, general hospital polytechnic are provided on the road having width of more than 12 meters and less than 18 meters. Now, so far as 'Assembly building' is concerned, it is not specifically provided under this Regulation.
6. Learned advocate for the Corporation next invited attention of the Court to Regulation No.19, which provides for 'Parking space'. Regulation No.19.1 provides for 'Minimum parking space', which reads as under:-
"Off-street parking spaces for vehicles shall be provided for every new building constructed for the first use or when the use of old building is changed to any of the uses mentioned in the table below:-
Sr. No. Type of use Parking space Required Remarks 1 Residential (Flats/Apartments) 15% of maximum permissible F.S.I. (1) Dwelling units Above 80 Sq.Mts. Built up area 50% of the total parking space requirement shall be reserved for cars.(2)
Upto 80 Sq.Mts. Built up area 25% of the total parking space requirements shall be reserved for Cars.(3)
10% of the total parking space requirements shall be reserved for visitors at ground level.2
--
--
--3
--
--
--4
--
--
--5
Community buildings such as community hall/ marriage hall/community wadi/recreational club/and religious building, party plot, club house etc. 50% of Building Unit..
50% of the total parking space requirements shall be reserved for Cars.
In this table, providing for parking space, 'residential' is separately put under item No.(1), whereas 'community buildings', such as community hall/ marriage hall/ community wadi/ recreational club/and religions building, party plot, club house etc. are placed under item No.(5).
6.1. From the aforesaid table, it is clear that the 'residential buildings' and 'community buildings' are treated separately and this Court is able to see the logic behind the same. The 'residential building' will not be attracting crowd, but at the same time, 'community buildings', may be for any purposes, like community hall, marriage hall, recreational club or religious building, attract crowd and therefore, parking space is provided to be 15% of maximum permissible F.S.I. in 'residential buildings, whereas in the matter of 'community buildings' it is 50% of Building unit. It is at this juncture that two uses of a building make a difference.
6.2. It is in light of this difference, the petitioner of Special Civil Application No.16258 of 2010 is supposed to explain to the Corporation authorities about the breach of the concerned Regulation. If the building was constructed as a 'residential building', it cannot be used as a 'religious building'.
7. Learned senior advocate for the petitioner of Special Civil Application No.16258 of 2010 raised an issue that, 'residential use of a building and religious use of a building is almost interchangeable and there cannot be vertical dividing line between two uses'. Prima facie, the submission of the learned senior advocate is attractive and may be accepted. But, when the question comes to follow the GDCR, the framers of GDCR have taken care of and have very distinctly kept two buildings separate. 'Residential building' is a building which is not by its nature attracting crowd, except on very few occasions, like marriage in family, any other small gathering, but 'religious building' by its nature is going to have regular activities which will be attracting crowd and therefore, the framers of the GDCR have distinctly placed them in two different entries in the matter of providing for parking space. This distinction will be material at the time of applying to the Corporation for permission by stating that the use of a building, at the relevant time, if a particular building is to be used as 'religious building' and the permission is sought, the corporation will consider the application accordingly and can legitimately deny the permission if the width of the road on which the proposed building is going to abut is not as provided in the concerned regulation. Similarly, the permission may not be granted if required parking area is not available.
8. It is made clear that in a building which is granted permission as a 'residential building', all activities including religious activities can be carried, but there is a difference between using a building as a 'religious building'. From the material placed on record, it appears that, till the time, the building is used as 'residential building' for Sadhu Bhagwants and Sadhvi Bhagwants, there cannot be any breach of any regulation. But if is used as 'religious building' and if it attracts crowd on regular basis, the petitioner of Special Civil Application No.16258 of 2010, will be responsible for breach of concerned regulation and as stated in the notice issued by the Corporation, will have to see that the building is used only as a 'residential building' and not as a 'religious building'.
9. Last but not the least, the learned advocate for the Corporation also invited attention of the Court to Regulation No.4.2.2, entry No.(g), which reads as under:-
"(g) for assembly use, for cinemas, theatres, places of public worship, residential hotels, lodging and boarding houses, unless the site has been previously approved by the Competent Authority and the Commissioner of Police."
Unless the prior approval from competent authority and the police Commissioner is obtained, construction of 'religious building' could not have been put up.
9.1. The aforesaid discussion makes it clear that the building which is constructed by obtaining the permission for a 'residential building', cannot be used as a 'religious building' unless requirements provided are satisfied and permission is sought for from the competent authority of the Corporation in this regard.
10. With the aforesaid observations, the petition, being Special Civil Application No.16258 of 2010, is dismissed.
10.1. As the period prescribed in the notice under Section 478 of the BPMC Act dated 13.12.2010 has expired, the Corporation may issue fresh notice under Section 478 of the BPMC Act as early as possible but not later than 3rd January 2011.
11. The petitioner of Special Civil Application No.16258 of 2010 is granted time to reply to the notice upto 10th January 2011. The Corporation is directed to decide the question of breach of concerned regulation or unauthorized use of a 'residential building' as 'religious building' after considering the reply of the petitioner. If required, it will be open for the Corporation to issue fresh notice/ order under Section 478 of the BPMC Act within four weeks from the date of communication of the order aforesaid.
11.1. It goes without saying that till then, the petitioner will see that the building is not used as 'religious building'.
To be referred to the Reporters.
(RAVI R.TRIPATHI, J.) omkar Top