Gujarat High Court
Highness Hotel Private Limited vs Ahmedabad Municipal Corporation & ... on 5 June, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/10689/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10689 of 2016
With
SPECIAL CIVIL APPLICATION NO. 12992 of 2016
With
CIVIL APPLICATION NO. 6755 of 2016
In
SPECIAL CIVIL APPLICATION NO. 10689 of 2016
With
CIVIL APPLICATION NO. 7022 of 2016
In
SPECIAL CIVIL APPLICATION NO. 10689 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
=========================================
1 Whether Reporters of Local Papers may be allowed to see the No judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law as to No the interpretation of the Constitution of India or any order made thereunder ?
========================================= HIGHNESS HOTEL PRIVATE LIMITED Versus AHMEDABAD MUNICIPAL CORPORATION & OTHERS ========================================= Appearance in Special Civil Application No.10689 of 2016:
MR DEVAN PARIKH, SENIOR ADVOCATE with MR ARPIT P PATEL, ADVOCATE & MR MUKESH A PATEL, ADVOCATES for the Petitioner MR PRASHANT DESAI, SENIOR ADVOCATE with MR SATYAM CHHAYA, ADVOCATE for Respondent No.1 MR NIRUPAM NANAVATI, SENIOR ADVOCATE with MR VIRAK K SHAH, ADVOCATE for Respondent No.5 Appearance in Special Civil Application No.12992 of 2016:
MR DEVAN PARIKH, SENIOR ADVOCATE with MR ZUBIN F BHARDA, ADVOCATE for the Petitioner MR PRASHANT DESAI, SENIOR ADVOCATE with MR SATYAM CHHAYA, ADVOCATE for the Respondent(s) No. 1 MR NIRUPAM NANAVATI, SENIOR ADVOCATE with MR VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 6 ========================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 05/06/2017 Page 1 of 25 HC-NIC Page 1 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT COMMON CAV JUDGMENT
1. In Special Civil Application No.10689 of 2016 (to be referred as "the first matter"), the following prayers are made in paragraph No.18:-
(A) A writ of mandamus or a writ in the nature of mandamus or writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction may kindly be issued quashing and setting aside the order/ decision dt. 23.5.2016 passed by the respondent No.2 and the Rajachitthi/ commencement letter dt.3.3.2015 issued by the respondent authority as well as the approval of maps (Annexure A and B Colly) and be pleased to direct the respondents to strictly comply with the provisions of law/GDCR, taking care of all the rights of the petitioner including qua the basic amenities and the respondents may kindly be directed to remove the illegal construction carried out by the respondent No.5 on city survey No.3285, more particularly on eastern northern side thereof & in violation of GDCR.
(B) Pending hearing, admission and final disposal of the petition the respondent No.1 to 3 may kindly be directed to initiate immediate action to get stop further construction on land city survey No.3285 and to initiate action for removal of illegal construction carried out by the respondent No.5 on City Survey No.3285 and the respondent authorities may kindly be restrained from revising and granting any further permission to the respondent No.5 in any manner, and the respondent No.5 may also kindly be restrained from making further construction on the basis of the alleged commencement letter dt. 3.3.2015 in the manner detrimental & damaging to the essential amenities & structure as well as the rights of the petitioner, and also be restrained from creating any third party interest qua the construction, in the interest of justice.
(C) Pending admission, hearing this Hon'ble Court may kindly be pleased get the site situation inspected through independent agency acquainted having technical knowledge with regard to construction on the laws pertaining to it, in the interest of justice.
(D) ......"
2. In Special Civil Application No.12992 of 2016 (to be referred as "the second matter"), the following prayers are made in paragraph No.17:-
(A) A writ of mandamus or a writ in the nature of mandamus or Page 2 of 25 HC-NIC Page 2 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction may kindly be issued quashing and setting aside the approval of maps and Rajachitthi/ commencement letter dt.3.3.2015 issued by the respondent authority (Annexure A Colly) and be pleased to direct the respondent authorities to strictly comply with the provisions of law/GDCR, taking care of all the rights of the petitioner including qua the basic amenities and the respondents may kindly be directed to remove the illegal construction carried out by the respondent No.6 on the basis of the commencement letter/ rajachitthi dt.3.3.2015 on city survey No.3285 & adjacent land in violation of GDCR, AMASR Act and provisions of other laws relating to construction.
(B) Pending hearing, admission and final disposal of the petition the respondent authorities may kindly be directed to initiate immediate action to stop further activities & construction on the basis of the commencement letter/ rajachitthi in question dt.3.3.2015 qua/ on land city survey No.3285 & adjacent land thereto and be pleased to restrain the respondent authorities from revising and granting any further permission to the respondent No.6 in any manner and the respondent No.6 may also kindly be restrained from making further construction on the basis of the alleged commencement letter dt. 3.3.2015, in the manner detrimental & damaging to the essential amenities & structure as well as the rights of the petitioner, and the respondent authorities may kindly be directed to initiate action for removal of illegal construction carried out by the respondent No.6, in the interest of justice.
(C) Pending admission, hearing this Hon'ble Court may kindly be pleased get the site situation inspected through independent agency acquainted having technical knowledge with regard to construction on the laws pertaining to it, in the interest of justice.
(D) ......"
3. In both the matters the grievances made and issues raised are common against the grant of commencement letter (Raja Chitthi) dated 03.03.2015 for putting up construction of building for commercial use on land bearing City Survey No.3285, Shahpur Ward No.2, Gamtal, Ahmedabad (the land in question). The commencement Letter is the development permission granted under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 ('the Act') and the Bombay Provincial Municipal Corporation Act, 1949 ('the BPMC Act'). The petitioner of the first matter has its property of hotel Page 3 of 25 HC-NIC Page 3 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT known as "Hotel Royal Haynes" (earlier known as "Hotel Roopali") on eastern side touching boundary of the plot in question. The petitioner of the second petition has been in occupation of the land admeasuring 2236 square meters of City Survey No.3293/1 on the western side touching boundary of the land in question as tenant.
4. It appears that the petitioner of the first matter had earlier filed Special Civil Application No.19034 of 2015 challenging the development permission granted for the land in question. Such petition was disposed of without expressing any opinion on merits by directing the Corporation to look into the grievances raised by the petitioners. It appears that since no action was taken, the petitioner of the first matter had preferred second petition being Special Civil Application No.6741 of 2016 wherein the Court granted interim order of status-qua. The respondent No.5 in the first matter, who is joined as respondent No.6 in the second matter, is the owner of the land in question (to be referred as 'Developer') who preferred Civil Application to vacate the interim order. The Court disposed of the Civil Application with the main matter permitting both the parties to produce additional necessary documents before the Deputy Municipal Commissioner and the Deputy Municipal Commissioner was directed to examine the documents produced by the respective parties and to pass appropriate order in accordance with law before 31.05.2016 and the parties were directed to maintain status-quo till the decision was declared. It was, thereafter, the Deputy Municipal Commissioner passed order dated 23.05.2016 impugned in the first matter. The Deputy Municipal Commissioner in his impugned order has recorded that the development permission is granted in consonance with the General Development Control Regulations-2021 ("the GDCR") and rejected the objections raised against the development permission by the petitioner of the first matter.
5. In both the petitions, the challenge made to the development permission is mainly on the grounds that development could not be Page 4 of 25 HC-NIC Page 4 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT permitted on the land in question as it is formed by amalgamation of city survey Nos.3291/1, 3291/2, 3282 and 3285 to 3290 which is not permissible under the provisions of the GDCR; that the requirements under GDCR for keeping margin open space, open to sky space etc. are not complied with and the rights of the petitioners to get light and air are violated and even the public safety and public health are also affected. It is alleged in the petition that the development permission is granted mechanically without application of mind and in gross violation of the provisions of the GDCR and it has also contravened the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 ("the Ancient Monuments Act").
6. The Act is enacted for planned development of different areas in the State. Under Section 3 of the Act, the State Government may declare any area in the State to be a development area. It shall then constitute an authority for such area as required under Section 5 to be called as 'Area Development Authority' to carry out the functions assigned to it under the Act. Instead of constituting such separate Area Development Authority, the State Government can declare any local authority functioning in the development area as Area Development Authority. However, if the State Government is of the opinion that the object of proper development or redevelopment of any urban area or group of urban areas in the State with such adjacent areas as considered necessary, whether covered under the development area already declared under Section 3 or not, will be best served by entrusting the work of development or redevelopment thereof to special authority instead of Area Development Authority, it may declare such area as urban development area and constitute an authority for such area to be called as Urban Development Authority of that area under Section 22(1) of the Act. Thereupon all the powers and functions of the Area Development Authority in relation to such area shall be exercised by such Urban Development Authority.
6.1. As could be seen from the GDCR, the Urban Development Area Page 5 of 25 HC-NIC Page 5 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT notified by the State Government under Section 22(1) of the Act, includes the area of Ahmedabad Municipal Corporation and Ahmedabad Urban Development Authority (AUDA) is constituted as Urban Development Authority relating to such area. As per Section 23 of the Act, the Urban Development Authority is to prepare development plan and to control the development activities in accordance with the development plan and is required to exercise other functions as stated therein. As per sub-section (2) of thereof, the Urban Development Authority can delegate with approval of the State Government any of its powers and functions to the local authority or authorities within its jurisdiction. To carry out the purposes of the development plan, the Urban Development Authority may make regulations making provisions for controlling and regulating the use and development of the land within the development area as contemplated in Clause (m) of sub-section (2) of Section 12 of the Act.
6.2. The AUDA has made Comprehensive Development Plan- 2021 (Second Revised) which includes Ahmedabad Municipal Corporation area. It has made GDCR in exercise of the powers under Section 12(m) read with Section 13 of the Act.
7. Some of the Regulations from GDCR need to be first referred. Regulation 2 is for definitions. From them, the definitions given in Regulation Nos.2.19, 2.22, 2.25, 2.71, 2.78, 2.95, 2.99, 2.117 read as under:
2.19. Building A Building means all types of permanent building, but structure of temporary nature like tents, hutment as well as shamianas erected for temporary purposes or ceremonial occasions, shall not be considered to be "buildings".
2.22. Building-unit Means a land or plot or part of a land/plot or combination of Page 6 of 25 HC-NIC Page 6 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT more than one land/plot as proved by the Competent Authority. However, where an alignment has been fixed on any road by any Competent Authority, the Building - unit shall mean and refer to the land excluding the portion falling in alignment.
2.25. Unit Built-up Area Means the areas covered by a building on all floors including the cantilevered portions, if any, including walls and columns, but except the areas specifically excluded under these Regulations.
2.71. Gamtal Means all land that has been included by the Government/Collector within the site of village, town or city on or before the date of declaration of intention to make a Town Planning Scheme or publication of Draft Development Plan -
2021. Such land shall not include any other land which may subsequently be included within the site of any village by the Government/Collector under the provision of Land Revenue Code.
2.78. Ground Coverage Means the ground area covered by a building including, cantilevered portion on any floor, excluding cut-out (open-to- sky) if any.
2.95. Local Area Plan Means a plan prepared for a specific area or a zone by the competent authority. The Local Area Plan (LAP) may identify measures for plot utilization, fire protection, accessibility, street design, pedestrianisation, transportation network, infrastructure, parking management, green network including parks and open spaces, etc. The regulations identified in the Local Area Plan shall prevail over the base zone regulations.
2.99. Margin Means the space adjacent to boundary of Building-unit, buildings or common plot that should be kept fully open-to- sky. No built-up area shall be permitted in marginal space except specifically permitted under these Regulations.
2.117. Open Space Page 7 of 25 HC-NIC Page 7 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT Means an area forming an integral part of the plot, left permanently open sky.
Regulation 3 which falls under the heading 'Procedure Regulations' provides for the matters concerning development permission and building use permission. Regulation 3.3, 3.4, 3.8, 3.8.1, 3.8.2, and 3.8.3 read as under:-
3.3. "Grant of a Development Permission"
Grant of a Development Permission by the Competent Authority shall mean an acceptance by the Competent Authority that the development requirements of the proposed building, for which Development Permission has been granted, conforms to these Development Regulations, and that the person holding the Development Permission may undertake proposed development or construction of the proposed building within the limits of the Development Area in conformity with the Development Plan Proposals.
It does not constitute acceptance of correctness, confirmation, approval or endorsement of:
(a) Title, ownership, and easement rights of the Building‐unit for which the building is proposed;
(b) Variation in area from recorded areas of a Building‐unit;
(c) Location and boundary of Building‐unit;
(d) Workmanship, soundness of material and structural safety of the proposed building;
(e) Structural reports and structural drawings and shall not bind or render the Competent Authority liable in any way in regard to (a), (b), (c) (d) and (e) above.
3.3.1. "Liability"
Notwithstanding any Development Permission granted under the Act and these Regulations, any person undertaking any development work shall continue to be wholly and solely liable for any injury or damage or loss whatsoever that may be caused to anyone in or around the area during such construction and no liability whatsoever in this regard shall be cast on the Competent Authority or any officer/employee to whom power has been delegated.
Page 8 of 25HC-NIC Page 8 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT 3.4. "Development Requirements"
Development Requirements of the following aspects shall be mandatory and may be examined by the Competent Authority for ensuring compliance of the development to these Regulations:
1. Permissible Ground Coverage
2. Permissible Floor Space Index
3. Permissible Height and the various floors
4. Permissible pen Spaces enforced under these Regulations ‐ Common Plot, Marginal Open
5. Spaces, Setbacks and other open spaces.
6. Permissible Uses of Land and Buildings
7. Arrangements of stairs, lifts, corridors and parking
8. Minimum requirement of sanitary facility
9. Minimum Common Facility
10. Required light and ventilation
11. Minimum requirement of Fire Prevention and Safety, and Clearance from Chief Fire Officer as applicable.
3.8. Procedures for Obtaining, Revising and Revalidating a Development Permission 3.8.1. Obtaining a Development Permission On receipt of a duly completed application for Development Permission, the Competent Authority shall scrutinize the application in detail before grant of Development Permission, to verify whether the design and specifications of the proposed building comply with these Regulations.
The procedure for obtaining a Development Permission is specified in Regulation No. 5.1.
3.8.2. Revising a Development Permission Changes or revisions in the sanctioned design and specification of a building may be made if a Revised Development Permission is obtained before construction is undertaken on the portion of the building that deviates from the Sanctioned Design Requirements.
Revision of Development Permission shall be mandatory in the following conditions:
1. Change in Ownership
2. Increase in utilised FSI
3. Reduction in Parking area
4. Change in Orientation of the Building Page 9 of 25 HC-NIC Page 9 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT
5. Change in size or location of the Common Plot
6. Change in use of Building or part thereof For any of the above mentioned changes in a building during the course of construction, the owner should apply for a Revised Development Permission for the Building‐unit or part of Building‐unit as the case may be. The modified Development Requirements may be examined by the Competent Authority for ensuring compliance of the building to these Development Regulations. No deviations in contravention of the provisions of the act, and/or these regulations shall be permitted.
Procedures for obtaining a Revised Development Permission are specified in Regulation No. 5.2.
3.8.3. Revalidating a Development Permission A Development Permission may be revalidated provided procedural requirements for revalidating a Development Permission are met with.
A Development Permission that may lapse due to non‐ commencement of work, may be revalidated for a period of one year. The revalidated period shall in no case exceed three years in the aggregate that is for a total period of four years. The period of validity shall begin from the date of commencement certificate/ development permission.
The procedures for revalidating a Development Permission are specified in Regulation No. 5.3.
Regulation 6 provides that inspection of construction by the competent authority. Regulation 9 is for use and zone thereunder Regulation 9.1 defines Concept of Zones. Regulation 9.1.1, 9.1.2, 9.1.3 read as under:-
9.1.1 Core Walled City (CW) This zone has been exclusively identified for promoting conservation of heritage structures and the urban fabric within the walled city.
9.1.2 Gamtal (CM) This zone constitutes of gamtals having a traditional, organic Page 10 of 25 HC-NIC Page 10 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT character and compact development. This zone is identified to conserve this traditional character.
9.1.3 Gamtal Extension (GME) This zone acts as a buffer zone for gamtals to allow their natural growth. It permits land use as per R2 zone.
Then from Regulation 9.1.4 onwards different Zones like Residential Zone - I, II, III, Commercial Zone, Logistic Zone, Industrial Zone etc. are provided. Under Regulation 9.2 Zoning Table is prepared showing Use Zones and zone-wise applicability of the Regulations and permissible uses therein.
8. The developer applied for development permission after it purchased the land in question on 18.6.2014. The copy of the application for development permission is placed on record, wherein it is stated that the land in question is within Village Shahpur, Ward- Shahpur and its Zone is shown as Gamtal (before D.P. 2021) and Gamtal- Core Walled City (After D.P.2021). There is no dispute that the area of Shahpur is covered under the Development Plan- 2021. It is stated at the bar that for development of the land in question, the GDCR framed under the Draft Comprehensive Development Plan 2021 applies and the application for development permission for the land in question is dealt with in accordance with the GDCR.
9. In the development permission dated 3.3.2015, the land in question is shown within Gamtal (Walled City). It appears that the plan is sanctioned for development of the land in question for commercial purpose under the Core Walled City Zone. The Deputy Municipal Commissioner who has passed order dated 23.5.2016, impugned in the first matter, has observed that since the construction as per the plan is within the Core Walled City, the provisions made in Regulation No.10 of the GDCR apply and the provisions made in Regulation No.13 do not apply.
Page 11 of 25HC-NIC Page 11 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT
10. Learned senior advocate Mr.Deven Parikh appearing with learned advocate Mr.M. A. Patel and learned advocate Mr.Zubin Bharda for the petitioners submitted that the development permission granted for the land in question and the construction carried out thereon is in clear violation of the mandatory requirements of keeping margin space, fire safety margin, open-to- sky space, light and ventilation, drainage etc. as per GDCR. Mr.Parikh submitted that as per the provisions made in the Schedule-4 attached with the GDCR, the plan submitted for the development must show the situation of the adjacent property but in the plan sanctioned for the land in question, the properties of the petitioners which are adjacent on both sides of the land in question are not shown but shown as empty place. He submitted that unfortunately, no inspection was carried out either before sanctioning the plan for the land in question or at the time of construction thereon. He submitted that requirement of keeping margin space for the development apply to all Zones. He submitted that even if the development of the land in question is considered to be within Core Walled City, open-to-sky space is to be left as provided in Regulation 10. Mr. Parikh submitted that in fact, as per zoning certificate, the land in question falls within Gamtal but if it is to be considered within the Core Walled City as per the development plan, it could be said to be Gamtal Extension and for Gamtal Extension Regulation 13.6 for margin space will apply. Mr. Parikh submitted that under Regulation 24, strict compliance of fire safety requirements for all buildings in all Zones is to be observed and as per Regulation 24.3, marginal space adjacent to the building as open-to-sky is required to be left. Mr. Parikh submitted that for the land in question, when 65% ground coverage for the building is permissible, remaining 35% open space is meant to cover margin space and open-to-sky space as required under the GDCR. Mr. Parikh submitted that the city survey no.3285 is formed by amalgamating other lands bearing different city survey numbers which is not permitted for development in Core Walled City zone, however, Page 12 of 25 HC-NIC Page 12 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT contrary to Regulation 10.2, the plan is sanctioned for amalgamated plot which has resulted in permitting illegal constructions even on the open space then existed before the amalgamation between the land occupied by the petitioner of the first matter and the building of Roopali Cinema originally existed. Mr.Parikh submitted that the development permission granted for such amalgamated plot has violated the rights of the petitioners to receiver light and air through the open space and also caused damage to the properties of the petitioners and even the construction put up on the land in question has totally closed drainage line of the petitioner of the first matter. Mr.Parikh submitted that from the view point of the public health as also the rights of adjoining owners, respondent - authorities were not required to permit any construction on the land in question contrary to the provisions made in the GDCR. He submitted that even though there was no plan sanctioned in the name of the developer, the developer commenced the construction activities causing damage to the adjoining properties of the petitioners. Mr.Parikh submitted that though repeatedly requested, the petitioners were not provided with any information as regards the sanctioning of the plan and the development permission granted with result that on one hand, the developer continued with its construction activity and the petitioners were deprived of an opportunity to immediately approach the Court of law. Mr. Parikh submitted that after the petitioners got information as regards sanctioning plan and granting development permission contrary to the GDCR, the petitioner of the first matter could file first petition before this Court and as per the direction of this Court, the Corporation was required to look into the grievance of the petitioners, however, the Deputy Municipal Commissioner has not applied his mind to all the issues raised by the petitioners and has mechanically decided that the construction put up by the developer is not in breach of GDCR. Mr.Parikh has taken through the various provisions of the GDCR to point out that the development permission given, as also the construction put up by the developer are not as per the provisions of Page 13 of 25 HC-NIC Page 13 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT the GDCR. Mr.Parikh submitted that the grant of development permission and the construction put up pursuant to the development permission on the land in question have violated the provisions of the Ancient Monuments Act. Mr. Parikh thus submitted that the development permission is required to be cancelled and the construction put up based on the development permission is required to be removed.
11. Learned senior advocate Mr. Prashant Desai appearing with learned advocate Mr. Satyam Chhaya for the respondent authorities submitted that the development permission granted for the land in question is strictly in accordance with the provisions made in GDCR. He submitted that there is no violation of any of the provisions of the GDCR and the construction permitted on the land in question is also keeping in mind various requirements provided in the GDCR for grant of development permission. Mr.Desai submitted that when the development permission was asked for it was in connection with one city survey no.3285 and not by amalgamating different plots. Mr.Desai submitted that amalgamation of the city survey numbers had already taken place and, therefore, it could not be said that there was a breach of Regulation 10.2 in granting development permission. Mr. Desai submitted that under the planning zone, the land in question falls within the zone of Core Walled City and the development within the Core Walled City is permissible only in accordance with the provisions made in Regulation 10. Mr.Desai submitted that Regulation 10 does not provide for keeping any margin within the plot. Mr. Desai submitted that the provision for keeping margin is rightly not there for development in Core Walled City as in most of the area of Core Walled city, the buildings touch each other and it may not be possible to provide for any margin or open space if the reconstruction or construction on any plot in such area is made. Mr.Desai submitted that when there is no specific provisions made for keeping margin or open space for adjacent Page 14 of 25 HC-NIC Page 14 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT buildings in Regulation 10, which is applicable to the Core Walled City, it cannot be said that the development permission granted for the plan without providing margin on the land in question is illegal or contrary to the provisions of the GDCR. Mr.Desai submitted that due care has been taken to comply with the fire safety provision and only after the approval from the fire safety authority, the development permission is granted. Mr. Desai submitted that as regards the grievance of the petitioners that their right to have ingress and egress or to get light, air and ventilation are violated as the open space existed is now covered under the development, such would be alleged violation of their easementary right, which will not make the development permission illegal. Mr.Desai submitted that there is no violation of the provisions of the Ancient Monuments Act as the Corporation, after considering NOC granted in favour of the developer by the competent authority under the Ancient Monuments Act, granted the development permission and if the petitioners have any grievance in this regard, it is for the petitioners to approach the concerned authority under the Ancient Monuments Act. Mr.Desai submitted that in any case neither the concerned authority under the Ancient Monuments Act is joined in the petition nor any application is made in this regard to the concerned authority under the Ancient Monuments Act and, therefore, the petitioners are not entitled to make any grievance in this regard.
12. Learned senior advocate Mr.Nirupam Nanavati appearing with learned advocate Mr.Viral Shah for developer submitted that the developer has put up the construction on the land in question as per the sanctioned plan after the development permission was granted. Mr.Nanavati submitted that there is no grievance made in the petition that the construction put up by the developer is contrary to the sanctioned plan and therefore, the developer cannot be said to have made illegal construction. Mr.Nanavati submitted that the grievance made as regards not leaving open space alleged to have been existed Page 15 of 25 HC-NIC Page 15 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT between the property of the petitioner of the first matter and then existed building of Roopali Cinema and thereby affecting alleged right of the petitioners to have ingress and egress, to have light and air is the claim of easementary right for which the petitioners if advised may avail civil remedy but such would not render the development permission illegal. Mr.Nanavati submitted that all questions like the petitioners' alleged right to have light and air, alleged violation of the provisions of the Ancient Monuments etc. are the disputed questions of fact and cannot be decided in exercise of the writ jurisdiction. Mr.Nanavati submitted that the petitioners are otherwise responsible for delay and latches in approaching this Court to challenge the development permission. Mr.Nanavati submitted that by the time, the petitioners approached the Corporation making grievance against the grant of development permission, the basic frame work of the construction was already over and now construction in all respect is over and, therefore, the petitioner may not be permitted to invoke the writ jurisdiction of this Court. Mr.Nanavati submitted that the land in question fall within the Core Walled City under the development plan and Regulation 10 which apply to Core Walled City does not make any provision for keeping margin inside the plot. Mr.Nanavati submitted that if the citizen has outrightly contravened the law in making construction either by not getting the plan sanctioned or in any other manner, he is to suffer but if the plan is sanctioned and no grievance is made when the construction is in progress, he may not be permitted to have the extraordinary remedy against the grant of development permission before this Court as alternative remedy is available to him. Mr.Nanavati submitted that if the prayers made in the petition are accepted, the developer will be required to demolish the constructions from the foundation and for grant of such relief the petitioners have failed to make out any strong case. Mr.Nanavati submitted that when the Corporation itself has considered the land in question within the Core Walled City and granted development permission by applying Regulation 10, the grievance of the Page 16 of 25 HC-NIC Page 16 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT petitioners that the development permission could not have been granted without making the provision for margin or open-to-sky space etc cannot be said to be a strong case made out against the developer so as to require demolition of construction. Mr.Nanavati submitted that as regards the alleged violation of the Ancient Monuments Act, when the petitioners have neither approached the concerned authority under the Ancient Monuments Act nor have joined any such authority in the present petition, and when no relief is also prayed in the petitions against such authority, the issues concerning violation of the provisions of the Ancient Monuments Act would not ipso facto make the development permission granted to the developer illegal. He, thus, urged to dismiss the petitions.
13. The Court having heard learned advocates for both the sides finds that for the purpose of controlling and regulating the use and development of the land within the development area as per the development plan, the land in question is considered to be within the Core Walled City area. Though it is stated in the zoning certificate that the land of City Survey No.3285 is Gamtal, however under the Revised Development Plan (RDP) 2021, the land in question is considered to be within Core Walled City.
14. The GDCR is comprised of five different sections. Three main sections are 'Procedure Regulations', 'Planning Regulations' and 'Performance Regulations'. In Planning Regulations, concepts of zones and uses within the zones are shown. Different areas in development area are divided in different zones and applicability of the regulations is shown zone-wise. Regulation 10 is shown to be applicable to the areas within the Core Walled City. As per Regulation 3.4, the development requirements mentioned therein are to be examined when an application is made for development permission to ensure the compliance of the development to the GDCR. As could be seen from Form No.6(A) attached with the application for development permission, the developer has stated about the Page 17 of 25 HC-NIC Page 17 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT proposed requirement of the ground coverage, Floor Space Index (FSI), common plot, etc. but has not shown any width of margin in the land in question. The accompaniments to the application are drawings of the plans, layout and other documents. It appears that the developer has also submitted no objection certificate dated 1.6.2015 of the competent authority under the Ancient Monuments Act and the Rules for construction of the commercial building at City Survey Nos.3284/Part, 3285 to 3290/Part and 3293/Part which on amalgamation made City Survey No.3285- the land in question. As regards fire safety, it appears that provisions are made in plan for fire safety as required under the GDCR which was approved by the Chief Fire officer.
15. As could be seen from the zoning table under Regulation No.9.2, permissible uses are mentioned zone-wise and different regulations are shown applicable zone-wise. However, in a particular zone, if the requirement made in any other regulation for other zone is to be applied, it is so specifically provided in the Regulation of such zone. Regulation No.10 makes provision for permissible development and uses for heritage areas and for other areas of Core Walled City and for permissible FSI, permissible ground coverage, parking, basement. It has also made provision for open to sky space but it does not provide for keeping the margin within the plot to be developed. Open to sky space provision is to ensure that natural light and ventilation is available within the building in conformity with the requirements made in Regulation Nos.10.7.1 and 10.7.3. Mr. Parikh however submitted that Clause (4) of Regulation No.10.7.3 could be read to have provided for open air space between the proposed building and the building of the adjacent owner. Clause (4) of Regulation No.10.7.3 reads as under:-
"No construction work on a building shall be allowed if such work operates to reduce an open air space of any other adjoining building belonging to the same owner to an extent less than what is prescribed by any of these regulations in force at the Page 18 of 25 HC-NIC Page 18 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT time of proposed work to further reduce such open space if it is already less than what is prescribed."
Such provision in Clause No.(4) does not appear to be meant for providing any open space between the building proposed to be constructed and the building of the adjoining owner. The provision made appears to be to ensure that the same owner may not reduce the open space provided by him in his adjoining building. The provision for open to sky space made in this Regulation 10 is not for leaving any space adjacent to the adjoining building nor can it be compared with requirement of leaving margin space within the plot. When there is no provision made for keeping the margin space within the plot in Regulation No.10, such provision cannot be read into Regulation No.10, especially when the provision for margin made in Regulation 13 does not appear to be generally applied to development in all zones except when its applicability is so specifically provided in the Regulations of other zones. The Court finds that wherever any provision of other Planning Regulations is intended to be applied to any zone, it is specifically provided in the regulation of such zone. For example, under Regulation No.10, in Regulation No.10.4 for relaxation in built up and FSI, it is stated that it is as per the planning Regulation No.9.4.5. Likewise, for common plot, it is stated in Regulation No.10.8 that common plot shall be provided based on Planning Regulation No.13.9 as applicable. In Regulation No.13 applicable to other zones, like residential zone, commercial zone, logistic zone etc., Regulation 13.6 provides for margin. Such Regulation No.13.6 is not made applicable to the development undertaken in Core Walled City area. But, in Gamtal extension zone, to which Regulation No.12 applies, Regulation 13.6 is made applicable. Likewise, for development under Regulation No.14, the provision for margin as per Regulation No.13.6 is made applicable, for development under Regulation No.15, such provision is made applicable, then for development under Regulation No.16, the very same provision is made applicable. For other development, like Page 19 of 25 HC-NIC Page 19 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT special building where Regulation No.18 applies and for fueling stations where Regulation No.19 applies, special provision for margin is made, instead of applying Regulation 13.6. Thus, it clearly appears that for the development in the area of Core Walled City, there is no requirement for keeping the margin space within the plot and therefore, if the development permission is granted and the plan is sanctioned for the development on land in question without the provision for margin space, it cannot be said that the development permission and the plan sanctioned is in violation of the GDCR.
16. It is however contended that the development is not permitted in the Core Walled City area by amalgamation of different plots. The Court finds that there appears to be no prohibition for amalgamation for development in the Core Walled City. But, even if such prohibition is to be read in Regulation 10.2, the developer has not made application for development permission showing amalgamation of different plots. The developer had asked for the development permission in connection with only one plot bearing City Survey No.3285. It was therefore, not for the concerned authorities which granted development permission to decide on the question of amalgamation of the plots. The City Survey No.3285 was formed after city survey authority permitted merger of three city survey numbers and only thereafter, the developer purchased the plot bearing City Survey No.3285. Thus, when the developer purchased the land, it was only one city survey number. Therefore, it is not correct to say that the development permission granted would be rendered illegal on the ground that the amalgamation of the plots was not permissible.
17. As regards alleged violation of the provisions of the Ancient Monuments Act, it appears that the competent authority under the Act had granted permission for construction of the building on City Survey Nos.3284/Part, 3285 to 3290/Part, and 3293/Part to the vendor of the developer and the developer was also granted such permission for the said lands purchased by it. Such permission is Page 20 of 25 HC-NIC Page 20 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT therefore, for the land in question. Learned advocate Mr. Parikh however submitted that the construction permitted under the development permission falls within the prohibited area as defined under the Ancient Monuments Act and therefore, the development permission granted for such construction and the construction within the prohibited area are illegal and to the extent the construction has gone in the prohibited area, it should be ordered to be immediately removed. The question whether the construction made is within the prohibited area or not is a question of fact. The petitioners though have alleged violation of the provisions of the Ancient Monuments Act, have chosen not to address any application or representation to the concerned authority under the Ancient Monuments Act nor have joined any authority under the Ancient Monuments Act in the petitions. It is not the case that the developer has not at all taken any permission or NOC from the competent authority under the Ancient Monuments Act. If the development permission is granted after considering the permission granted by the competent authority under the Ancient Monuments Act, and if there is any grievance in the context of the provision of the Ancient Monuments Act, it was for the petitioners to first approach the concerned authority under the Ancient Monuments Act or at least would have joined such concerned authority in the present petition to invite their say in response to the allegations made in the petition. In absence of such action taken by the petitioners, the challenge to the development permission and the construction made based on the development permission on such aspects cannot be accepted. If development permission or the construction made on the plot in question has violated any provisions of the Ancient Monuments Act, it is for the petitioners to bring to the notice of the concerned authority such violation and to seek appropriate relief first before the concerned authority under the Ancient Monuments Act. Such aspects which require facts determination are not required to be gone into by this Court in exercise of the powers under Article 226 of the Constitution.
Page 21 of 25HC-NIC Page 21 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT
18. Learned senior advocate Mr. Parikh then drew the attention of the Court to the provisions made in Regulation No.24 and submitted that the provisions made therein have general application to all developments to be made in the areas of all zones covered under the development plan. Regulation No.24 provides for fire prevention and safety. This Regulation comes under Performance Regulations. In this Regulation, Regulation 24.3 is for marginal open space. Clause (1) thereof provides that for all buildings, except dwelling-1 & 2, marginal space adjacent to building shall be open to sky and motorable with minimum load bearing capacity as per the table mentioned therein. The phrase 'adjacent to building' used in this clause for keeping the marginal space could be read in the context of the building to be constructed within the plot. Requirements of different equipments and mechanism for fire protection and safety are found mentioned in Regulation No.2.62 and as mentioned in Regulation No.24.2.1, how best they are to be applied is for the provisions makers to decide for the suitability of the building. What appears to be envisaged in Regulation No.24.3 is that there has to be sufficient vacant space in the building for access of rescue equipments and from which rescue operation is feasible. Once such provision is found made in the building design and when plan is approved with such provisions made for fire safety and when fire safety officer has not seen any objection as regards making of provision for fire safety, simply because such margin space is not kept adjacent to properties of the petitioners, it could not be said that the development permission granted is in violation of the GDCR, especially Regulation No.24.3. The Court finds that what is required to be observed, as stated in Regulation No.24.3, is about maintaining the minimum load bearing capacity in the context of height of the building and width of entrance gate not to be less than six meters from street side. Such provisions are not for marginal open space adjacent to adjoining building but are meant for the building to be constructed. Mr. Parikh however submitted that the requirement for drawing key plan is with an intention to show the Page 22 of 25 HC-NIC Page 22 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT boundaries and location of the adjacent properties or neighbourhood properties to ensure keeping of open space between the building to be constructed and the existing building in neighbourhood. He submitted that Schedule-4 attached with the regulations makes provision for such drawing of the key plan but the developer in the key plan has not shown existence of the properties of the petitioners which are adjacent to the land in question and even the authorities responsible to grant development permission have not bothered to verify the existence of the properties of the petitioners adjacent to the land in question and ignoring the requirement to show the adjacent properties in the key plan, the development permission is granted which is contrary to the provisions made in GDCR especially Schedule-4. The provisions made for drawing of key plan in Schedule- 4 reads as under:-
Key Plan:-
A key plan shall be drawn to the scale of minimum of 1:8000 and shall explain the boundary and location of the site with respect to neighbourhood landmark."
It talks about the neighbourhood landmark to identify the boundary and the location of the land to be developed. However, it does not appear from Schedule-4 that non-showing of the existing properties adjacent to the land to be developed would make the key plan or site plan vulnerable for grant of development permission. Even if such adjacent properties are not shown in the key plan, such would not be a ground to hold that the development permission is illegally granted.
19. As regards the contention that the development permission granted and construction made on the plot in question has otherwise violated the rights of the petitioners to get light and air and to have access on the open space which existed between the building of Roopali Cinema then existed and the building of the hotel of the petitioners of the first petition, it is required to note that such claim is in the nature of the easementary rights. If there was already open Page 23 of 25 HC-NIC Page 23 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT space between the building of the petitioners of the first petition and old building of Roopali Cinema and such was being used or available for ingress and egress or to get light and air, it would be for the petitioners to establish such rights and get the relief for such rights by availing of appropriate civil remedy but such would not be a ground to say that the development permission granted and the constructed allowed is contrary to the provisions of the GDCR. It is required to note that though the petitioners have stated in the petitions that the right from the day when the developer had started with the construction activities, they started approaching different authorities by making complaint about alleged unauthorized activities undertaken by the developer, however the fact remains that the petitioners have not availed of any immediate remedy before any competent Court, for restraint order for their enjoyment of right of free access on the open space and to have light and air. Be that as it may, such issues cannot be considered in the present petitions filed under Article 226 of the Constitution of India as they require adjudication on assessment of evidence.
20. Learned senior advocate Mr. Parikh relied on various judgments to submit that permitting illegal construction would not only be against the private safety but is also against the public safety and therefore, this Court has got wide powers under Article 226 of the Constitution of India to order demolition of the illegal construction even if the entire construction is over. The judgments cited are in the case of Ahmedabad Municipal Corporation Vs. Vijay Owners' Association reported in 2000(3) GLH 510, in the case of Sarvesh Atulbhai Gohil Vs. Jamnagar Urban Development Authority and Ors.
reported in 2014(2) GLH 26 and other judgments on this issue. But, having gone through such judgments, the Court finds that unless contravention of the GDCR or any Rule for development of the building is found clearly established, the judgments cannot be applied. In the facts of the case, such judgments will have no Page 24 of 25 HC-NIC Page 24 of 25 Created On Tue Jun 06 01:24:10 IST 2017 C/SCA/10689/2016 CAV JUDGMENT application.
21. For the reasons stated above, the Court finds no substance in the challenge made in the present petitions and the reliefs prayed therein cannot be granted in exercise of the powers under Article 226 of the Constitution of India. The petitions are therefore, dismissed. Rule is discharged. Interim relief, if any, stands vacated.
22. Civil Application No.6755 of 2016 was preferred to restrain the developer from making further construction /activities violating the GDCR and causing damage/ disturbing the provisions of essential amenities of the petitioners of the first petition with further direction not to disturb drainage chamber/ system and to repair or clean such system. Civil Application No.7022 of 2016 was preferred by respondent No.5 of the first petition seeking to vacate the interim order dated 1.7.2016 passed in the first petition.
23. Since the main petitions are now decided, the Civil Applications are not required to be decided and are required to be disposed of. Thus, the Civil Applications are disposed of without going into the merits of the allegations made therein.
Sd/-
(C.L.SONI, J.) Omkar After pronouncement of the judgment, a request is made to continue the interim relief in operation for a period of four weeks. Such request is opposed by learned advocates for the respondents.
However, the Court finds that to enable the petitioners to carry the matter before the Higher Forum, the interim relief in operation should continue for a further period of two weeks. It is ordered accordingly.
Sd/-
(C.L.SONI, J.) Omkar Page 25 of 25 HC-NIC Page 25 of 25 Created On Tue Jun 06 01:24:10 IST 2017