Gujarat High Court
Tejas vs Ahmedabad on 15 July, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/987/2010 11/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 987 of 2010
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TEJAS
CO-OP HOUSING SOCIETY LTD - Petitioner(s)
Versus
AHMEDABAD
URBAN DEVELOPMENT AUTHORITY & 3 - Respondent(s)
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Appearance :
MR
JC VYAS for Petitioner(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 1 - 3.
MR ADIL R MIRZA for Respondent(s) : 1,
MR
DHAVAL G NANAVATI for Respondent(s) : 2,
MR UDAY R BHATT for
Respondent(s) : 3,
MR PK JANI,GOVERNMENT PLEADER for Respondent(s)
: 4,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/07/2010
ORAL
ORDER
By way of this petition under Article 226 of the Constitution of India, petitioner Tejas Cooperative Housing Society Limited through its Chairman has prayed for an appropriate writ, direction and order directing the respondent nos. 1 and 2 i.e. Ahmedabad Urban Development Authority (herein after referred to as the AUDA ) and Ahmedabad Municipal Corporation to take appropriate action against respondent no.3 for (i) encroachment on the public road
(ii)unauthorized and illegal construction in his residential house bearing tenament No.48 of the petitioner society (iii) converting the use of the said tenanment from residential into commercial by constructing and letting three shops to different persons.
2. It is the case on behalf of the petitioner that inspite of petitioner's approaching various authorities and the officers of respondent nos. 1 and 2, no steps are taken by respondent nos. 1 and 2 with respect to illegal construction put up by respondent no.3.
3. An affidavit in reply has been filed on behalf of respondent no.1 AUDA pointing out that on receiving the representations by the petitioner society dated 7.02.2008 and 15.2.2008 with respect to certain illegal construction put up by respondent no.3 herein in contravention to the development permission and the sanctioned plan, as the area where the petitioner society was situated has been merged into limits of the Ahmedabad Municipal Corporation, the office of the AUDA intimated/informed the Corporation on 09.06.2008, to take appropriate action and said facts were also brought to the notice of the Urban Development Department, Gandhinagar vide letter dated 11.6.2008. Therefore, it is submitted that so far as AUDA is concerned, they have taken all the steps to see that grievance of the petitioner society is appropriately redressed. It is specifically mentioned in the reply filed by AUDA that as now area has been merged into the limits of the Ahmedabad Municipal Corporation, the petitioner society now have to raise the grievances with respondent no.2 so that the said grievances can be appropriately redressed as it is now within the jurisdiction of the corporation to taken appropriate action in the matter as the area in question now merged into the corporation limits.
4. Affidavit in reply has been filed on behalf of respondent no.2 - Ahmedabad Municipal Corporation and in the said affidavit the corporation has come out with the following defence as so stated in para 4 to 7, which reads as under:
4. It is stated that the area in question was earlier under the administrative control of the Ahmedabad Urban Development Authority, but the said area has merged into Administrative Control of the Ahmedabad Municipal Corporation by a notification bearing No.KV/25/2006/AMN/902006/410/P dated 14.02.2005 and notification of even dated 20.07.2006. The said notifications had been made effective since the midnights of 14.02.2006 and 20.07.2006 respectively. However, it is pertinent to note that though the area in question is merged into the administrative control of the answering respondent, but the Ahmedabad Urban Development Authority has not handed over the administrative powers under the Gujarat Town Planning and Urban Development Act to the answering respondent and taking all the administrative decisions pertaining to the Town Planning Scheme under the Gujarat Town Planning and Urban Development Act.
5. It is stated that even from the order issued by the Department of Urban Development and Urban Housing Department of the State Government vide order No.UDA 112006 2795 V dated July 07, 2006 exercising powers vested under section 122 of the Gujarat Town Planning and Urban Development Act 1976 the State Government has made it very clear that by only certain and specific powers which are available u/S.27,28,29,30,31,32,33,34,35,36,37,38,39 and 49 of Gujarat Town Planning and Urban Development Act 1976 have been and were transferred to the answering respondents Corporation vide that order and other powers other then mentioned will be exercised by the Ahmedabad Urban Development Authority.
6. It is stated that it becomes clear from the order dated July 07, 2006 that at time of merger of the areas under AUDA to the Corporation, the State Government has transferred certain and specific powers of the Gujarat Town Planning and Urban Development Act 1976 to the answering respondent Corporation and other powers other then the powers mentioned in the said order have been vested with the Ahmedabad Urban Development Authority and the AUDA will have to exercise those powers which are not transferred to corporation by the State Government. While transferring the powers the State Government has specifically not transferred the powers vested under Sections 67 and 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules 1976, which empowered the authority to evict the person or structure to the answering respondent. It is also pertinent to the state at this stage the Chief Executive Authority of Ahmedabad urban Development Authority was also aware about the same arrangement and considering the much said arrangement has passed an order bearing no.
Planning/Pariptra/AMC/Limit dated 18.12.2006, whereby the CEA has ordered that in respect of the areas transferred to the AMC, AMC can exercise the powers vested in Sections 27 to 39 of the Gujarat Town Planning and Urban Development Act 1976 for the chapters registered on or after 01.01.2007 otherwise the chapters which are already registered with AUDA on or before 31.12.2006 the AUDA will take all the necessary steps of issuing the Development Permission and removing the illegal constructions in respect of the chapters registered with them on or before 31.12.2006.
7. It is pertinent to note at this stage and it's a matter of record that the Ahmedabad Urban Development Authority AUDA respondent No.1 herein has not supplied and handed over the records pertaining to the property in question. It is further stated that the answering respondent Corporation has time and again reminded the respondent No.1 through the Senior Town Planner to intimate the answering respondents about the steps taken by them in this regards besides the written communication dated 20/2/2010 to the respondent No.1 in this regards .
5. Looking to the aforsaid inter se dispute between the AUDA and Ahmedabad Municipal Corporation and powers to be exercised by the AUDA and Ahmedabad Municipal Corporation with respect to the plots which were initially within the local limits of AUDA but subsequently merged into Ahmedabad Municipal Corporation and considering inter se dispute between the AUDA and the Corporation with respect to taking steps for illegal construction and/ or any other steps with respect to such plots/lands which are now included within the local limits of the Ahmedabad Municipal Corporation, this Court directed / permitted the petitioner to Join Secretary, Urban Housing and Urban Development Department, Government of Gujarat to clarify the position and to remove the doubt.
6. In response to the notice issued by this Court, Shri PK Jani, learned Government Pleader has appeared on behalf of newly added respondent i.e. Secretary, Urban Housing and Urban Development Department, Government of Gujarat and an affidavit in reply has been filed on behalf of the State Government affirmed by Shri P.L. Sharma, Officer on Special Duty and Ex-officio, Joint Secretary Urban Housing and Urban Development Department, Government of Gujarat and it has been pointed out that as such the stand which is taken by both the respondent authorities i.e. AUDA and Ahmedabad Municipal Corporation was never brought to the notice of the State Government and therefore, the State Government was not at all aware of the problem faced at the ground level. It is submitted that it is always open to both the respondents authority to approach the State Government for clarification, if there is any misconception, confusion or misunderstanding as regards the order dated 18.12.2006. It is further pointed out and clarified in para 3 of the said affidavit in reply that Ahmedabad Municipal Corporation is empowered to take decision with respect to powers to be exercised under Sections 27 to 39 and 49 of the Gujarat Town Planning and Urban Development Act. It is further clarified that accordingly Ahmedabad Municipal Corporation can decide to grant or refuse any development permission inclusive of revised development permission and also take action with respect to illegal construction. Para 3 of the affidavit in reply reads as under:
3.
I say and submit that vide Notification dated 20.7.2006 passed by the Urban Development and Urban Housing Department, Government of Gujarat, the area of Ghatlodiya was included in the Municipal limits of Ahmedabad City. It is pertinent to note that, vide order dated 18.12.2006, the State Government in Urban Development and Urban Housing Department had directed the Ahmedabad Urban Development Authority to transfer the powers under Sections 27 to 39 and 49 of the Gujarat Town Planning and Urban Development Act, 1976 forthwith. It is pertinent to note that the said order came to be passed pursuant to the proposal submitted by the Ahmedabad Urban Development Authority dated 1.11.2006 under Section 22(3) of the Gujarat Town Planning and Urban Development Act, 1976 and accordingly the Ahmedabad Municipal Corporation is empowered to take decisions with respect to the above referred clauses and accordingly Ahmedabad Municipal Corporation can decide to grant or refuse any development permission and also take action with regard to the illegal construction .
7. It is further submitted in the said reply that as per sub-section (a) of Section 67 of the Gujarat Town Planning and Urban Development Act, all lands required by the appropriate authority shall unless it is otherwise determined in such manner, vest absolutely in the appropriate authority free from all encumbrances, thereby the land required in the scheme vests with AUDA.
In para 6 of the said reply, it is further submitted that in the areas included and which now form part of Ahmedabad Municipal Corporation limits, AUDA has prepared 93 town planning schemes on land admeasuring 148.34 sq.mtr and from among them few schemes are at different stages of implementation. It is submitted that on the sanction of the scheme, vide section 67 of the Act, some land vests with the appropriate authority. It is submitted that in many such schemes the AUDA has carried out development and thereby liabilities are created. It is submitted that, therefore, with regard to the transfer of powers to Ahmedabad Municipal Corporation, to avoid further complications, a comprehensive assessment of responsibilities has to be taken and only pursuant to that decision to transfer the powers to implement the town planning schemes shall be taken and till than AUDA is empowered to implement it. Shri Jani, learned Government Pleader under the instructions from the Officer on Special Duty and Ex-officio, Joint Secretary Urban Housing and Urban Development Department, Government of Gujarat, who is present in the Court has made a statement that decision with respect to above inclusive of lands required by the appropriate authority on sanctioning the Town Planning Scheme (with respect to the land included into the limits of the Ahmedabad Municipal Corporation) as well as transfer of powers with respect to aforesaid 92 schemes with respect to land now included into the limits of the Ahmedabad Municipal Corporation shall be taken by the Government within a period of three months from today.
8. Considering the stand taken by the respondent authorities i.e. AUDA and Ahmedabad Municipal Corporation, it appears that there was misconception and/ or confusion amongst the officer of the AUDA and Ahmedabad Municipal Corporation with respect to exercise of powers for granting development permission inclusive of revised development permission as well as to take action against illegal construction with respect to the lands/plots now included into local limits of the Ahmedabad Municipal Corporation which were earlier within the local limits AUDA. It has now been made clear and/ or clarified by the State Government as recorded herein above, and as affirmed by the Officer on Special Duty and Ex-officio, Joint Secretary Urban Housing and Urban Development Department, Government of Gujarat. Therefore, as per the above, as clarified by the Officer on Special Duty and Ex-officio, Joint Secretary Urban Housing and Urban Development Department, Government of Gujarat, power to sanction / grant and/or refuse the development permission and /or to take action with respect to the illegal construction with respect to the lands/plots which are included in the limits of Ahmedabad Municipal Corporation, which were earlier within the local limits of AUDA shall be with the Ahmedabad Municipal Corporation and, therefore, concerned authorities i.e. AUDA and Ahmedabad Municipal Corporation are required to take appropriate action in accordance with law and on merits and thus for the lands /plots which are now included within the local limits of Ahmedabad Municipal Corporation and which were earlier within the limits of AUDA, Ahmedabad Municipal Corporation is empowered and had to take action/steps with respect to grant/ refuse of development permission and revised development permission and illegal construction.
9. Learned advocate for the corporation has stated that as the relevant files/ records with respect to the lands/plots which are now included in the local limits of Ahmedabad Municipal Corporation which were earlier within the local limits of AUDA are not transferred and/or given to the corporation, corporation is handicapped and will not be in a position to take action. Shri Mirza, learned advocate for the AUDA under the instructions from the officer of the AUDA has made a statement at the bar that process of transfer of the records/files with respect to the lands/plots which are now within the local limits of Ahmedabad Municipal Corporation will be commenced within a period of two weeks from today and all the records/ files shall be sent to the corporation within a period of four weeks from today. It is submitted that however the AUDA may keep the xerox copy of the said record with them. Concerned respondents are directed to act accordingly.
10. Now, so far as the transfer of powers inclusive of land required by the appropriate authority with respect to 92 schemes which are pending with the State Government with respect to land now included within the local limit of Ahmedabad Municipal Corporation is concerned, as stated and requested by Shri PK Jani, learned Government Pleader appearing on behalf of the Urban Housing and Urban Development Department, Government of Gujarat, appropriate action shall be taken within a period of four months from today without fail as to avoid such confusion / misconception which implementing the said schemes and such eventuality may not take place again.
11. Now, so far as present petition is concerned, in view of the above stand and the clarification, AUDA shall transfer / send the record with respect to present case within a period of 10 days from today and on receipt of the same corporation shall take appropriate action in accordance with law and after giving opportunity to all concerned inclusive of the petitioner and respondent no.3 at the earliest but not later than three months from today. With these, present Special Civil Application is disposed of. Direct service is permitted.
(M.R.SHAH, J.) kaushik Top