Gujarat High Court
Moinuddin Sarfuddin Shaikh vs The National Monuments Authority on 16 March, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/16383/2021 ORDER DATED: 16/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16383 of 2021
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MOINUDDIN SARFUDDIN SHAIKH
Versus
THE NATIONAL MONUMENTS AUTHORITY
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 16/03/2022
ORAL ORDER
1. This is a writ application under Article 226 of the Constitution of India seeking following reliefs :-
"(a) To admit and allow this petition;
(b) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside order dated 22.9.2021 passed by respondent no.1 National Monuments Authority at its 317th meeting held at New Delhi rejecting the application of the petitioner for grant of No Objection Certificate for 22.80 meters height and further be pleased to pass mandatory order or direction declaring and granting No Objection Certificate to the petitioner from 15.00 meters to 22.80 meters for the reasons stated in the memo of petition and in the interest of justice;
(c) Pending admission, hearing and final disposal of the present petition, Your Page 1 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 Lordships be pleased to stay the execution, implementation and operation of order order dated 22.9.2021 passed by respondent no.1 National Monuments Authority at its 317th meeting held at New Delhi rejecting the application of the petitioner for grant of No Objection Certificate for 22.80 meters height.
(d) Your Lordships may Grant ad-interim relief in terms of prayer clause Para-
13(c) above.
(e) Your Lordships may pass such other and further orders as this Honourable Court may deem fit and proper in favour of the petitioners in the interest of justice and circumstances of the case."
2. Mr. Bharat T. Rao, the learned advocate appearing for the writ applicant submitted that the writ applicant herein is the owner of land bearing City Survey No.5459, 5460, 5463 to 5468, Sheet No.80, Ward Jamalpur - III situated at Astodia Gate Area, Ahmedabad. The subject land of the writ applicant falls in the regulated area of Dastoorkhan Mosque which is known as Pattharwali Masjid, which is declared as monument of national importance under the Act. The writ applicant approached the respondent authority for No Objection Certificate for construction of building in regulated area for residential - cum - commercial building in 2001 and in 2001 the competent authority has granted permission for construction of building with height upto 30 meters on 10.01.2001. The said No Objection Certificate dated 10.01.2001 was Page 2 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 issued by the Director, (Archaeology), Archaeological Survey of India. The writ applicant thereafter submitted an application for construction to the Ahmedabad Municipal Corporation. However, in view of the earthquake struck on 26.01.2001, several persons lost their lives and the properties were damaged. Therefore Ahmedabad Municipal Corporation suspended all the permissions forthwith with regard to the high rise buildings. The writ applicant therefore could not put up construction of 30 meters. The said ban imposed by the Municipal Corporation continued upto 2006 and consequently, No Objection Certificate granted to the writ applicant on 10.01.2001 lapsed. The writ applicant approached the respondent no.1 through respondent no.2 though Consultant seeking permission to construct building with height upto 15 meters on the property in question. The said application came to be processed and No Objection Certificate came to be granted permitting to construct building with height of 15 meters in regulated area by order dated 10.04.2012. The writ applicant once again approached the Municipal Corporation for sanctioning of plants and Municipal Corporation sanctioned plans and issued Commencement Certificate (Raja Chitthi) for construction of ground floor + two floors vide Rajachitthi No.03966/100315 A3917RO/M1 for construction of build up area of 1893.17 sq.mtrs., duly produced Page 3 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 at Annexure - D i.e. a copy of Rajachitthi No.03966/100315/A3917/RO/M1 issued by AMC on 02.06.2015. The writ applicant then submitted revised plans to the Municipal Corporation and submitted plans for G+4 floors since the writ applicant was entitled to put up construction upto G+4 floors looking to the F.S.I. available to the writ applicant in accordance with the location of the said land. The Ahmedabad Municipal Corporation granted the said permission on 05.10.2016 with respect to commencement and construction. The writ applicant then completed the construction of G+4 floors and constructions of high rise building has been undertaken up to 22.80 meters.
3. Mr. Bharat T. Rao, the learned advocate appearing for the writ applicant submitted that the Consultant of the writ applicant has given No Objection Certificate to the writ applicant issued by the respondent dated 03.09.2015 whereby the said No Objection Certificate stated that the writ applicant can raise construction from 15 meters to 22.80 meters. i.e. G+6 floors. The writ applicant came to know only on 23.03.2017 that the aforesaid No Objection Certificate dated 03.09.2015 was not genuine and that the writ applicant only was granted permission for construction up to 15 meters.
4. Being aggrieved by the aforesaid, the writ Page 4 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 applicant approached the respondent authority preferred an application dated 22.09.2018 which is duly produced at Annexure Q, page 100 of the present writ application seeking the granting of No Objection Certificate for the building up to the height of 22.80 meters.
5. Pursuant to the said application, the writ applicant was constrained to approached this Court by filing Special Civil Application No.16579 of 2018, wherein the said Special Civil Application was not entertained by the this Court and the same came to be disposed of. The writ applicant then approached this Court by filing Special Civil Application No.6229 of 2019. This Court by order dated 07/08/2019 produced at Annexure AB, page 169-178, relevant paragraph i.e. paragraph Nos.12 and 13 which reads thus :
"12. The Court has taken into consideration that the very purpose of enacting the Act is to provide for preservation of ancient and historical monuments and archaeological sites and remains of national importance and therefore, while examining the case of the petitioner for grant of NOC, it was obligatory on the part of the respondent authority to ascertain whether the existing 20.57 meters height construction, beyond 15 meters permitted, was in any way coming in way of preservation and maintenance of the monument in question. This observation is made specifically as the very authority in the year 2001 had granted NOC for 30 mtrs. On the very plots. Without addressing this vital Page 5 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 issue, merely on the point of fake certificate utilized by the petitioner, for which the petitioner claims not to be responsible and that the petitioner having taken action against the offender, case of the petitioner deserves consideration by relegating the matter back to respondent No.1 authority.
13. In view of the aforesaid, the petition stands partly allowed. The case of the petitioner is relegated back to respondent No.1 authority for fresh consideration of the application of the petitioner, which shall be considered in accordance with law, after granting opportunity of hearing to the petitioner as provided under Section 20D(6) of the Act and considering the observations made by this Court in the preceding paragraphs. Such exercise to be conducted uninfluenced by the previous order of rejection of NOC and to be conducted within a period of two months from the date of receipt of the order of this Court."
6. It appears that the respondent authority failed to comply with the directions passed by the Court in Special Civil Application No.6229 of 2019 by order dated 07/08/2019. The writ applicant once again approached this Court by filing Special Civil Application No.19043 of 2019. The Co-ordinate bench of this Court by order dated 16.12.2019 once again remanded the relegated the writ applicant to the respondent authority and passed the following orders which reads thus :
"Learned advocate Mr. Chirayu Mehta for Assistant Solicitor General Mr.Devang Vyas Page 6 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 for the respondents makes a statement upon instructions that the respondent authority shall withdraw the impugned order dated 7th October 2019 passed by the respondent No.1, and pass afresh order de novo after giving an opportunity of hearing again to the petitioner. He further states that without being influenced by the earlier decision dated 7th October 2019 taken in the 246th meeting of National Monuments Authority afresh de novo order shall be passed by the respondent authority after taking into consideration, the observation made by this Court in para 12 of the judgment and order dated 07.08.2019, which is reproduced under:
"12. The Court has taken into consideration that the very purpose of enacting the Act is to provide for preservation of ancient and historical monuments and archaeological sites and remains of national importance and therefore, while examining the case of the petitioner for grant of NOC, it was obligatory on the part of the respondent authority to ascertain whether the existing 20.57 meters height construction, beyond 15 meters permitted, was in any way coming in way of preservation and maintenance of the monument in question. This observation is made specifically as the very authority in the year 2001 had granted NOC for 30 mtrs. On the very plots. Without addressing this vital issue, merely on the point of fake certificate utilized by the petitioner, for which the petitioner claims not to be responsible and that the petitioner having taken action against the offender, case of the petitioner deserves consideration by relegating the matter back to respondent No.1 authority."Page 7 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022
C/SCA/16383/2021 ORDER DATED: 16/03/2022 The aforesaid exercise shall be carried out within three months from the date of receipt of copy of this order and latest by 31st March 2020.
Therefore, the petition is disposed of. Notice is discharged.
Direct service is permitted."
7. Pursuant to the order passed by the Co-ordinate Bench of this Court dated 16.12.2019, the respondent authority by order dated 22.09.2021 duly produced at page 55 passed the following order which reads thus :-
"Reconsideration Case:
Case No.01 (Sh. Moinuddin S. Shaikh & Others, 1711, Khatri ni Khadki, Near Topiwala ni Pole, Ahmedabad-380001, Gujarat) After perusal of the application and information received from Competent Authority, Gujarat, it was decided to Reject the case as the applicant had carried out unauthorized construction work without taking prior approval from the Authority in violation of section 20C(2) of AMASR Act, 1958."
8. This is a fourth round of litigation and the writ applicant is constrained to approached this Court in view of the orders passed by the competent authority without considering the orders passed by this Court from time to time.
Page 8 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022C/SCA/16383/2021 ORDER DATED: 16/03/2022 The competent authority rejected the application dated 22.09.2018 filed by the writ applicant seeking No Objection Certificate mechanically without giving opportunity of hearing to the writ applicant. As a last opportunity, the matter is relegated back to the competent authority and the competent authority is directed to decide the application filed by the writ applicant.
9. Heard the learned advocates appearing for the respective parties.
10. In view of above, the order passed by the competent authority dated 22.09.2021 is required to be quashed and set aside and the same is quash and set aside.
11. Mr. Bharat Rao, the learned advocate appearing for the writ appearing submits that the writ-applicant is ready and willing to prefer a fresh application before the authority within a period of one week from the receipt of this order alongwith documents with the said application.
12. The respondent authority is directed to consider the fresh application, if filed by the writ-applicant, which shall be considered in accordance with law, after granting due opportunity of hearing to the writ applicant as provided under Section 20D(6) of the Act and Page 9 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022 C/SCA/16383/2021 ORDER DATED: 16/03/2022 considering the observations made by this Court in the preceding paragraphs. Such exercise is directed to be conducted without being influenced by the order dated 21.09.2021 passed by the respondent authority rejecting to grant NOC to the writ-applicant and decide the same preferably within a period of eight weeks from the receipt of application which would be preferred by the writ applicant.
13. The respondent authority is directed to decide the same taking into consideration the documents that would be produced by the writ- applicant alongwith the application and grant personal hearing to the writ-applicant and considering paragraph no.12 of the order passed in Special Civil Application No.6229 of 2019 dated 07/08/2019, in accordance with law.
14. In view of above, the present writ application is partly allowed to the aforesaid extent.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) 1 ` Pallavi Page 10 of 10 Downloaded on : Wed Mar 23 20:24:17 IST 2022