Gujarat High Court
Mamtaben Prakashkumar Shah vs State Of Gujarat & 4 on 27 August, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/5368/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5368 of 2014
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MAMTABEN PRAKASHKUMAR SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR GAURAV CHUDASAMA,ADVOCATE for Petitioner(s) No.1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1
MR DHAVAL G NANAVATI, ADVOCATE for Respondent No. 2
MR AJ SHASTRI, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 27/08/2015
ORAL ORDER
(1) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"A. This petition be admitted and allowed.
B. By issuing appropriate writ, order and direction, Your Lordships may be pleased to direct the respondent No.2 and 3 to implement the notices issued on 30042012 and on 19052012 and demolish the illegal construction carried out by the respondent No.5 on the Common Terrace.
C. Your Lordships may pleased to direct the respondent No.2 and 3 to decide the representation of Dt.27022013 and Dt.17052013 made by the present petitioner before the respondent No.3.
C. Pending hearing and final disposal of this petition, the respondent No.2 and 3 may be directed to to implement the notices issued on 30042012 and on 1905 2012 and demolish the illegal construction carried out by the respondent No.5 on the Common Terrace.
D. Any other relief that may be deemed just and proper may also be kindly granted."
(2) Mr.Gaurav Chudasama, learned advocate for the petitioner, has contended that even though the respondentCorporation has taken action, as Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Sep 01 00:48:30 IST 2015 C/SCA/5368/2014 ORDER provided under Sections 260(1) and 260(2) of the Gujarat Provincial Municipal Corporation Act, 1949 (the GPMC Act) no further actions have been taken by the respondentCorporation. It is further contended that even in the affidavitin reply filed by the respondentCorporation that fact is admitted still, however, no further actions are taken and therefore the petitioner has approached the respondentCorporation by further applications dated 27.02.2013 and 17.05.2013.
(3) Mr.Dhaval G. Nanavati, learned advocate for the respondentCorporation, has relied upon the averments made in the affidavitinreply. Mr.Nanavati, learned advocate, also contended that the private respondent No.5 has not filed any application for development under Sections 253 and 254 of the GPMC Act, nor has filed any application under the provisions of the Gujarat Regularization of Unauthorized Development Act, 2011.
(4) Mr.A.J.Shastri, learned advocate for the private respondent No.5, relying upon the judgment of the Apex Court in the case of D.D.A. Vs. Gaurav Kukrja, 2015 AIAR (Civil) 402 has contended that this Court may not issue any writ of mandamus as prayed for as the petitioner is not an aggrieved person and none of the rights of the petitioner are violated.
Page 2 of 6HC-NIC Page 2 of 6 Created On Tue Sep 01 00:48:30 IST 2015 C/SCA/5368/2014 ORDER No other or further submissions are made by the learned counsel for the respective parties.
(5) In order to appreciate the controversy arising out of this petition, it would be appropriate to refer to the affidavitinreply filed by the respondentCorporation, mainly in view of the fact that the petition is directed towards the respondentCorporation. Corporation has averred thus (at Paragraph Nos.511) in affidavitin reply:
"5. I say that the respondent No.5 has illegally constructed one room on the common terrace of Dwarkesh Flats in T.P. Scheme No.4 at Maninagar without getting Development Permission from the respondent authority.
6. I say that in the said show cause notice, authority has informed the respondent No.5 to stop the illegal construction, otherwise, it would be removed on the cost and risk of respondent No.5 with the help of police authority.
7. I say that thereafter the respondent authority has sent a written communication dated on 3042012 u/s. 267 of Bombay Provincial Municipal Corporation Act (in short BPMC Act) to Maninagar Police Station to remove the persons who have carried out illegal construction on the common terrace of Dwarkesh Flats, which is annexed hereto and marked as Annexure'R1'.
8. I say that the Asst. Town Development Officer has made a visit at the place, where an illegal construction is carried out and thereafter he made a written communication to the respondent authority to take some action against the respondent No.5.
9. I say that after visiting the location, where the illegal construction is carried out, the Asst. Town Development Officer has submitted his report that the respondent No.5 has put up the walls in northern and eastern side.
10. I say that by making an illegal construction, the respondent No.5 has violated the Subrule 6(1) of Municipal Corporation Act and after issuing show cause notice as well as after giving a reasonable opportunity of being heard, the respondent No.5 has neither given any Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Sep 01 00:48:30 IST 2015 C/SCA/5368/2014 ORDER reply nor any written communication to the respondent authority.
11. I further say that the respondent authority is keeping priority in demolishing the illegal construction and this illegal construction falls under the residential zone, to which the respondent authority gives it as a last priority."
(6) It further appears from the record that the respondentCorporation has issued notices as provided under Section 260(1) of the GPMC Act and after hearing the parties concerned, more particularly private respondent No.5 herein, has passed order (which is at AnnexureC to the petition) dated 19.05.2012. As such there is no challenge to it by private respondent No.5.
(7) In light of the aforesaid therefore it cannot be said that the respondentCorporation has not taken any action and as such the respondent Corporation has acted in accordance with law.
(8) Mr.A.J.Shastri, learned advocate for the private respondent No.5, has relied upon the judgment of the Apex Court wherein the Apex Court has observed thus (at Paragraph No.18):
"18. In Director of Settlements, Andhra Pradesh and Ors. vs. M.R. Apparao and Anr., (2002) 4 S.C.C. 638, while considering the scope of the power of High Court to issue a writ of mandamus under Article 226 of the Constitution, this Court has held as under:
"17. ...It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as nonfundamental or ordinary legal rights, which may come within the expression 'for any other purpose'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, it must be exercised along recognised lines and subject to certain selfimposed limitations. The Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Sep 01 00:48:30 IST 2015 C/SCA/5368/2014 ORDER expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Court must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. ..."
On the date of filing of the writ petition, the respondent was neither a holder of a power of attorney nor had any subsisting right in the suit property and while so, the High Court was not right in holding that the respondent is entitled to apply for conversion of the property. Dehors the scheme of conversion, the respondent is not entitled to apply for conversion of the property. In our considered view, the respondent does not fall within the ambit of Clause 13 of the Conversion Scheme and therefore the impugned order of the High Court cannot be sustained and is liable to be set aside and the appeal deserves to be allowed."
With respect the facts which emerge from the record of the present case are totally different. Petitioner is occupying Flat No.B1 in Dwarkesh Flats and private respondent No.5 is the occupant of B12. Considering the affidavit inreply of the respondentCorporation and the order passed by the respondentCorporation under Section 260(2) of the GPMC Act clearly establish the fact that the development "which is carried out by private respondent No.5 is without any permission and the same is unauthorized and illegal."
Mr.A.J.Shastri, learned advocate for the private respondent No.5, has not been able to point out that the petitioner is an alien to the flats in question.
(9) In light of the facts arising out of the present petition, the ratio laid down by the Apex Court Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Sep 01 00:48:30 IST 2015 C/SCA/5368/2014 ORDER in the case of D.D.A. Vs. Gaurav Kukrja (supra) will not be applicable to the present case. However, considering the fact that the respondentCorporation has already initiated action and have already passed order under Section 260(2) of the GPMC Act way back on 19.05.2012, no further directions are necessary to be given by this Court in its exercise of jurisdiction under Article 226 of the Constitution of India, except the direction that the respondentCorporation shall take appropriate actions as expeditiously as possible in light of the order dated 19.05.2012 passed under Section 260(2) of the GPMC Act. As far as the prayer prayed for at Paragraph No.17C is concerned, which is reproduced hereinabove, no further directions are necessary to be given in light of the aforesaid directions.
(10) Petition stands disposed of accordingly. NOTICE discharged. No costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh[pps]* Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Sep 01 00:48:30 IST 2015