Gujarat High Court
Narayandas Sugnomal Maherchandani vs Executive Engineer & 2 on 23 June, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2925/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2925 of 2014
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NARAYANDAS SUGNOMAL MAHERCHANDANI....Petitioner(s)
Versus
EXECUTIVE ENGINEER & 2....Respondent(s)
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Appearance:
MR DEEPAK P SANCHELA, ADVOCATE for the Petitioner(s) No. 1
MR SP HASURKAR, ADVOCATE for the Respondent(s) No. 1 - 2
MS SK VISHEN, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 23/06/2014
ORAL ORDER
In present petition, the petitioner has prayed, inter alia, that:-
"8(B) To issue a writ of mandamus and/or any other appropriate writ, order and/or direction in the nature of mandamus directing the Respondent authority to reconnect the electric supply in its meter no.UTP 16714 as well as in customer no. T280/141 in the interest of justice.
(C) To direct the Respondent authority to reconnect the electric supply to the present Petitioner in its meter no.UTP 16714 as well as in customer no. T280/141 in the interest of justice during the pendency of admission, hearing and final disposal of the petition by way of an interim relief in the interest of justice."
2. The petitioner of present petition is also a petitioner in another petition, being Special Civil Page 1 C/SCA/2925/2014 ORDER Application No.3245 of 2014. In view of the fact that the petitioner in present petition as well as said other petition is common and the disputed building in connection with which present petition is taken out and the premises in connection with which the said other petition being Special Civil Application No.3245 of 2014 is taken out are the same and the learned advocate for the petitioner has made common submissions in both the matters. The said other petition, being Special Civil Application No.3245 of 2014, is decided by separate order dated 23.6.2014. Learned advocate for the petitioner has, actually, raised common contentions and similar grounds so far as present petition is concerned. However, having regard to the fact that the scope of the relief prayed for in present petition is slightly different from the scope of the relief prayed for in the said other petition, i.e. Special Civil Application No.3245 of 2014, present petition is decided by separate order.
3. The matrix of the case, which emerges from the details mentioned by the petitioner, is as follows:-
3.1 The petitioner has claimed that under a sale-
Page 2 C/SCA/2925/2014 ORDER deed, which was executed on 7.8.2010, the petitioner purchased a parcel of land bearing final plot No.54/1/1 bearing R.S.No.829 paiki. 3.2 The petitioner has further claimed that for the purpose of undertaking construction of the building in question, the electricity company had granted temporary connection (for construction purpose) which was valid, initially, for six months, however, subsequently, the said period was extended from time to time and by virtue of the last extension, it was valid until 5.11.2014.
3.3 The petitioner has alleged that somewhere in February-2014, Addl. Collector, Gandhinagar and Urban Development Authority, i.e. the respondent No.3, addressed a letter to the respondent No.1 Executive Engineer of the electricity company instructing to disconnect the electricity supply connection on the ground that certain part of the construction is illegal and unauthorized. The petitioner has alleged that in view of the said instruction by the respondent No.3, the electricity supply connection to the premises in question is disconnected w.e.f. 19.2.2014.
Page 3 C/SCA/2925/2014 ORDER It is alleged by the petitioner that the electricity supply connection came to be disconnected without any notice and though the connection was valid until 5.11.2014. In above mentioned factual backdrop, the petitioner has challenged the said action of the respondent Nos.1 and 2 in present petition and prayed for restoration of the electricity supply connection.
4. Having regard to the fact that the petitioner in this petition is the same as in Special Civil Application No.3245 of 2014 and even the premises is also the same, the respondent has opposed this petition also on same grounds and has relied on the affidavit in said other petition being Special Civil Application No.3245 of 2014.
4.1 From the reply affidavit filed in Special Civil Application No.3245 of 2014, which is filed by same petitioner in connection with same building, it has emerged that the petitioner had submitted an undertaking dated 31.8.2010 that they will not put up any construction in the common plot.
4.2 According to the respondent No.3, despite such Page 4 C/SCA/2925/2014 ORDER undertaking the petitioners have put up construction in breach of their undertaking dated 31.8.2010. In light of the said fact also, the petition does not deserve to be entertained.
4.3 From the reply affidavit of the respondent No.3, filed in the said other SCA No.3245 of 2014 by same petitioner, it also emerged that the petitioners have put up construction in such manner which violates the development permission dated 26.7.2011 as well as the approved plans.
4.4 The relevant details as regards the unauthorized construction put-up by the petitioners which are borne out from paragraphs - 6 to 11, 13 and 14 of the aforesaid reply affidavit filed by the respondent No.3 in SCA No.3245 of 2014 (filed by same petitioner), read thus:-
"6. Adverting to the merits of the case, few dates are relevant to substantiate the controversy as regards the unauthorized development which has been undertaken by the petitioner. I respectfully say that the petitioner purchased the land vide an agreement to sale in the month of November 2009, followed by the registered sale deed executed on 7.8.2010 for land bearing survey No.829/paiki, sub-plot No.54/1/1 of final plot no.54/1, admeasuring 2372 sq. mtrs. The petitioner submitted an application seeking development permission for developing the aforesaid plot, exclusively for residential purpose. In this behalf, the petitioner also Page 5 C/SCA/2925/2014 ORDER submitted an undertaking dated 31.8.2010 inter-alia declaring that the petitioner will not carry out any construction in the common plot. Annexed hereto and marked as Annexure-I is a copy of the undertaking dated 31.8.2010 filed by the petitioner before the authorities along with the necessary plan.
7. I respectfully say that the petitioner was granted necessary development permission for residential purpose on 26.7.2011 in Form D, Rule 10 under the provisions of section 29 read with section 49 of Gujarat Town Planning and Development Act, 1976 ('the Act of 1976' for short). Pertinently, even the development permission was granted to the petitioner after the cut off date of 28.3.2011 as provided by virtue of the provisions of sub-section (4) of section 8 of the Act and thus, there arises no question of any protection available to the petitioner under the provisions of the Act. The said permission was limited to the construction, via.:
(i) Hollow plinth (for parking purpose),
(ii) Ground floor, first floor and second floor each consisting of 14 residential units,
(iii) Stair cabin.
It is pertinent to note that as per the condition No.35 of the development permission, the petitioner was not supposed to effect any construction (i) in the common plot, (ii) in the open space including margin, and (iii) beyond the control building line. However, the petitioner in contravention of the development permission has effected construction in the common plot, has not left any margin and constructed shops in hollow plinth area reserved for parking.
8. It is respectfully stated that the petitioner, addressed a letter dated NIL which was accepted by the respondent No.3 on 30.8.2012 whereby, the petitioner had made certain grievance against the owners of adjacent Page 6 C/SCA/2925/2014 ORDER plot. The respondent No.3, in response to the aforesaid grievance of the petitioner, pointed out that it has been noticed by the respondent No.3 that the construction was not as per the development permission that he may restrict his construction in accordance with the development permission, failing which, necessary action will be taken. Annexed hereto and marked as Annexure-II is a copy of the letter dated 4.9.2012.
9. It is pertinent to note that as aforesaid, the petitioner was granted development permission only for constructing 42 residential units but unfortunately, on site inspection, it came to the notice of the respondent no.3 that the petitioner, in violation of the provisions of the conditions incorporated in the development permission and in utter defiance of the undertaking dated 31.8.2010, carried out the illegal construction as under:
(i) Constructed one whole block in common plot, consisting of hollow plinth, ground floor, first floor and second floor,
(ii) Constructed shops in the frontage of the main road in the hollow plinth in Block-A, sanctioned for parking space, and
(iii) left zero metre side-margin, thereby encroaching upon 12 metre T.P. Road. (The petitioner, as per the development permission, was obliged to leave 3 metre side margin) Annexed hereto and collectively marked as Annexure-III (colly.) are the copies of the photographs of the frontage and of the 12 metre T.P. Road side along with the map.
10. It is respectfully stated that no sooner the aforesaid illegal construction came to the notice of the respondent No.3 than notice dated 5.10.2012 came to be issued under the provisions of the Act of 1976 calling Page 7 C/SCA/2925/2014 ORDER upon the petitioner to remove the unauthorized construction carried out against the sanctioned pllan. The petitioner neither reply to the said notice nor complied with the same as a result of which, a further notice dated 26.11.2012 through registered post A.D. came to be issued under the provisions of section 36 of the Act of 1976 reiterating the request of removing the unauthorized construction. Annexed hereto and collectively marked as Annexure-IV (colly.) are the copies of the notices dated 5.10.2012 and 26.11.2012. Thereafter, the petitioner submitted a reply dated 29.12.2012,inter-alia justifying that no illegal construction has been carried out on the site. In the meantime, a complaint was received by Shri Ram Corporation on 20.11.2012 and accordingly, the respondent no.3, thereafter, inspected the site on 3.12.2012 and necessary report was prepared. The said issue as such is not directly in issue and thus I deem it proper not to deal with the same, reserving right to deal with the same, if need be. Annexed hereto and marked as Annexure-V is the copy of inspection report dated 3.12.2012.
11. the petitioner, filed a Regular Civil Suit no.21/2013 before the court of Principal Senior Civil Judge, Gandhinagar for temporary injunction against the respondent no.3 inter-alia requesting that the notice be declared as not enforceable. Annexed hereto and marked as Annexure-VI is a copy of the Regular Civil Suit No.21/2013 filed by the petitioner. It was expected of the petitioner to have stated in the petition about the filing of the suit for the identical relief prayed for but unfortunately, the petitioner has not set out the facts in the petition, but has produced it alongwith the appeal which was filed under the provisions of the Act.
13. The respondent no.3, passed an order dated 4.9.2013 rejecting the application on the ground that the Page 8 C/SCA/2925/2014 ORDER provisions of the Act are not applicable to the case of the petitioner inasmuch as the construction is post 28.3.2011 and the provisions of the Act are applicable only to the constructions carried out prior to 28.3.2011. Annexed hereto and marked as Annexure-VIII is the copy of the order date 4.9.2013 passed by the respondent no.3. Being aggrieved and dissatisfied by the aforesaid order dated 4.9.2013, the petitioner preferred an appeal under the provisions of section 12 of the Act before the competent authority alongwith the stay application.
14. Even after the rejection of the application dated 2.7.2013 of the petitioner for regularization and reportedly, in absence there being any stay granted in favour of the petitioner, the petitioner had, continued the illegal construction and thus, the respondent No.3 had to request Uttar Gujarat Vij Company Ltd. to discontinue the electricity supply. I respectfully say that apparently the petitioner has carried out illegal construction as is substantiated by his application for regularization of the unauthorized construction and thus,the captioned petition deserves to be dismissed without grant of any relief. Annexed hereto and collectively marked as Annexure-IX (colly.) are copies of the maps indicating the illegal construction by the petitioner."
5. Learned advocate for the petitioner submitted that any action including impugned action of disconnecting electricity supply during pendency of appeal/application is unjust and arbitrary and therefore, it may be set aside. Learned advocate for the petitioner further submitted that the competent Page 9 C/SCA/2925/2014 ORDER authority, without properly appreciating the facts of the case and/or the provision U/s.5 of the Gujarat Regularisation of Unauthorised Development Act, 2011, rejected the application filed by the petitioner for regularisation of the illegal and unauthorised construction. Learned advocate for the petitioner also submitted that against the action and decision of the competent authority, viz. not regularizing the unauthorised construction, the petitioner has filed appeal under Section 12 of the said Act and the said appeal is pending. The learned counsel for the petitioner also submitted that the authority may be directed to restore the electricity supply.
6. Ms. Vishen, learned advocate, has appeared for the respondent No.3. Ms. Vishen, learned advocate for the respondent, submitted that part of the construction is illegal and unauthorized and that therefore, the respondent authority informed the factual position to the electricity company since the electricity company appears to have granted the connection without examining this aspect and thereby supply connection is made available to an unauthorized and illegal part of the premises. Thus, the action of Page 10 C/SCA/2925/2014 ORDER respondent is not unreasonable. Having regard to the fact that present petition is filed by the petitioner in Special Civil Application No.3245 of 2014 and this petition is also filed in connection with the same building, which is the subject matter of the said other petition, being Special Civil Application No.3245 of 2014, Ms. Vishen, learned advocate for the respondent, relied on the details mentioned in reply affidavit filed in the said other petition. She also relied on the provision under Section 5 and Section 8 of the said Act and submitted that the unauthorised construction put up after 28.3.2011 is not covered within the ambit of the provisions under the said Act and that therefore, such construction cannot be regularized in exercise of powers flowing from the provisions under the said Act. She further submitted that even otherwise, under the provisions of the said Act, the authority can decide only those cases wherein any notice had been issued prior to 28.3.2011. Ms. Vishen, learned advocate for the respondent No.3, submitted that since in present case, any notice as contemplated under the said provision was not issued before 28.3.2011 the petitioner cannot take shelter under the provisions of the said Act and any Page 11 C/SCA/2925/2014 ORDER application, purportedly made under the provisions of the said Act, cannot be considered.
7. Mr. Hasurkar, learned advocate for the respondent Nos.1 and 2, has taken noncommittal stand and without taking any responsibility as regards the action taken by the respondent Nos.1 and 2, merely submitted that the respondent Nos.1 and 2 acted in pursuance of the instruction by the respondent No.3.
8. I have heard learned advocates for the petitioner and the respondents and also considered the material on record. I have also taken into account the submissions made by learned advocate for the petitioner and the objection by learned advocate for the respondents.
9. From the material on record, it has emerged that the petitioner herein has filed a suit in the Court of learned Principal Senior Civil Judge, Gandhinagar, which is registered as R.C.S.No.211 of 2013 and present respondent No.3 is a party respondent in the said suit.
In the said suit, the petitioner has challenged, Page 12 C/SCA/2925/2014 ORDER inter alia, the notice dated 5.10.2010 issued by the respondent No.3 and has prayed that the respondent authority may be directed to approve the revised plan.
From the record of present petition, it has also emerged that besides the above-referred R.C.S.No.211 of 2013, the petitioner has also filed R.C.S.No.21 of 2013.
From the affidavit in Special Civil Application No.3245 of 2014, it has also emerged that this petitioner had submitted an undertaking dated 31.8.2010 that they will not put up any construction in the common plot.
According to the respondent No.3, the petitioners have put up construction in breach of their undertaking dated 31.8.2010. In light of the said fact also, the petition does not deserve to be entertained.
From the reply affidavit of the respondent No.3, it also emerges that the petitioners have put up construction in such manner which violates the development permission dated 26.7.2011 as well as the approved plans.
10. In the first instance, the petition does not deserve to be entertained because the petitioner has Page 13 C/SCA/2925/2014 ORDER filed a suit and in the said civil suit proceedings the petitioner has prayed for similar relief i.e. akin to the relief prayed for in this petition,is prayed for. The petitioner cannot be permitted to simultaneously prosecute two substantive remedies. Since the petitioner has filed this petition during pendency of civil suits, the petition does not deserve to be entertained. This is one major ground to not entertain and to reject the petition.
Now, so far as the respondent's explanation and defence, as urged by Ms. Vishen, learned advocate, is concerned, this Court would, at this stage, refrain from expressing any view and/or from recording any observation because appeal under the provisions of the Act is pending. Lest any observation may affect or influence the proceedings of appeal, this Court would not enter into examining the provisions or the respondent's explanation/defence in light of the provisions under the Act.
11. Having regard to the above mentioned aspects, more particularly the case of the respondent that the petitioners have put up unauthorized construction coupled with the fact that the appeal and suit Page 14 C/SCA/2925/2014 ORDER proceedings are pending, there is no reason or justification to entertain the petition and hold that the instruction given by the respondent No.3 to respondent Nos.1 and 2 is unjust or arbitrary.
As mentioned earlier, the petitioners herein have instituted two suit proceedings and according to petitioner's admission, the said suit proceedings are pending. The subject matter of R.C.S.No. 211 of 2013 is related, inter alia, to the notice issued by the respondent No.3. In the event, the petition, is directly related to the notice issued by the respondent No.3 (inasmuch as the impugned actions by the respondent Nos.1 and 2 are said to have been initiated in view of the instruction by the respondent No.3) and that therefore, this petition does not deserve to be entertained.
When on one hand, the appeal is pending and on the other hand, the suit proceedings are pending, the petition does not deserve to be entertained and at this stage, the relief prayed for by the petitioner cannot be granted in light of the details mentioned by the respondent No.3 in its reply affidavit.
The solitary ground on the strength of which the petitioner has taken out present petition and prayed Page 15 C/SCA/2925/2014 ORDER for above quoted relief is that its appeal under the provisions of the Act of 2011 is pending and until and unless the petitioner's request for unauthorized construction is not rejected, the relief for re- connection should not be denied.
When the issue as to whether the construction is in accordance with applicable rules and development permission or not, is not decided or until the appeal is allowed in favour of the petitioner is not granted and allowed, the request made in this petition cannot be granted.
Such relief, if allowed, would amount to directing the respondents to supply electricity connection to a premises which is found to be illegal and unauthorized. The Court cannot grant such request and can not pass such direction.
The petitioner has failed to make out any case to justify the request for the relief prayed for in the petition.
As mentioned earlier, the relief prayed for in present petition is also subject matter of the proceedings before the learned civil court and therefore also, the Court is not inclined to entertain the petition.
Page 16 C/SCA/2925/2014 ORDER In the result, the petition fails and is accordingly rejected.
(K.M.THAKER, J.) kdc Page 17