Gujarat High Court
Pravinchandra Chandulal Patel vs State Of Gujarat on 25 July, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/9853/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9853 of 2012
With
R/LETTERS PATENT APPEAL NO. 813 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9853 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the 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 No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PRAVINCHANDRA CHANDULAL PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR RAVINDRA SHAH(1299) for the PETITIONER(s) No. 1
MRS KANAN R SHAH(3255) for the PETITIONER(s) No. 1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MR DM
DEVNANI, ASSISTANT GOVERNMENTPLEADER (1) for the
RESPONDENT(s) No. 1
MR SATYAM CHHAYA (3869) for the RESPONDENT(s) No. 2
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR JEET J BHATT(6154) for
the RESPONDENT(s) No. 4,5
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/07/2018
CAV JUDGMENT
Page 1 of 19
C/SCA/9853/2012 CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The captioned Letters Patent Appeal is filed under Clause 15 of the Letters Patent against the interim order dated 11.07.2018 passed by the learned Single Judge in Special Civil Application No.9853 of 2012 by which learned Single Judge has recorded the statement of the learned counsel appearing for the respondent Corporation that the order dated 18.07.2016 passed by the Deputy Town Planning Officer (New Western Zone) shall be implemented within a period of one week from the date of the order. The learned Single Judge has, therefore, observed that "it is expected that if the Municipal Corporation seeks assistance of Police authorities, the same shall be provided except on 14.07.2018".
2. At the request of the learned advocates appearing for the parties, papers of Special Civil Application No.9853 of 2012 were called for and with the consent of the learned advocates, the main petition itself is finally heard and decided.
3. The brief facts leading to the filing of the Page 2 of 19 C/SCA/9853/2012 CAV JUDGMENT petition are as under:
3.1 The petitioner Pravinchandra Chandulal Patel, who is senior citizen, has filed the present petition under Article 226 of the Constitution of India, in which, it is stated that the petitioner is the owner of the land bearing Revenue Survey No.1230 of Village Memnagar, which is included in the Ahmedabad Municipal Corporation area and has given Final Plot No.304 of Town Planning Scheme No.1, Village Memnagar. It is stated that the petitioner and his wife are old aged senior citizens and are staying alone in their house constructed on the said plot since number of years. When they started residing at the said place, surrounding area was comprising of open pieces of land having no residence nearby including that of Sushilnagar Cooperative Housing Society Limited. The petitioner constructed compound wall surrounding his plot from all sides. It is stated that allottees of Plot Nos.1 and 2 of Sushilnagar Cooperative Housing Society Limited had executed a declaration on 19.02.1978 about the same.
It is stated that Plot No.2, which appears to have Page 3 of 19 C/SCA/9853/2012 CAV JUDGMENT been allotted at the relevant time by Sushilnagar Co operative Housing Society Limited to Shri V.K. Chavda, which is admeasuring about 400 sq. yards. From the approved layout plan of Plot No.2, certain area is kept open from all sides, therefore, erstwhile allottee made construction of his house on the said plot by keeping open to sky the aforesaid margin as shown in the layout plan.
3.2 It is stated that respondent Nos.4 and 5 have later on purchased the property in question and, therefore, they are also required to keep open the marginal area from all sides of their house. However, respondent Nos.4 and 5 have started illegal and unauthorized construction in the marginal side facing plot No.1 of the society. It is alleged that respondent No.5 is an I.P.S. Officer and is very influential person wielding his powers and respondent Nos.4 and 5 are headstrong persons, who have scant regard for rule of law. However, few members of the Society could gather the courage to make a complaint to respondent No.2, copy of which was sent to the Deputy Municipal Commissioner against such illegal Page 4 of 19 C/SCA/9853/2012 CAV JUDGMENT construction started by respondent Nos.4 and 5. However, no action was initiated against the illegal and unauthorized construction being undertaken by respondent Nos.4 and 5. It is stated that one Mr. Jayesh Prahladbhai Patel submitted an application under the Right to Information Act, 2005, on 12.07.2011 posing five queries with respect to the illegal and unauthorized construction being carried out by the private respondents. However, no reply was given to the respondent Corporation, therefore, reminder was sent. However, subsequently, reply was received from the Public Information Officer of the respondent Corporation by Mr.Jayesh Prahladbhai Patel, in which, it is stated that notice under Section 267 of the Gujarat Provincial Municipal Corporation Act, 1949 ("GPMC Act" for short) has been issued to respondent No.5. It is revealed from the said reply that the private respondents had not obtained any permission from the respondent Corporation before making construction in the marginal area.
3.3 It is further stated that though as per the Page 5 of 19 C/SCA/9853/2012 CAV JUDGMENT respondent Corporation, respondent Nos.4 and 5 have started illegal and unauthorized construction in the marginal area of the plot in question, no action has been taken by the respondent Corporation and, therefore, the present petition is filed, in which, the petitioner has mainly prayed that respondent Nos.1 to 3 be directed to take appropriate immediate action under the provisions of the GPMC Act, Gujarat Town Planning and Urban Development Act, 1976 and the General Development Control Regulation against respondent Nos.4 and 5 so as to prevent them from making illegal and unauthorized construction in the margin area of all the four sides of the plot in question and to execute the notice dated 06.08.2011 issued under Section 267 of the GPMC Act. It is also prayed that respondent Nos.4 and 5 be directed to remove illegal and unauthorized construction made by them on the plot in question. Several other reliefs are also prayed in Paragraph6 of the petition. 3.4 When the petition was listed for hearing, this Court passed an order on 13.09.2012 wherein in Paragraph4 of the said order, it has been observed Page 6 of 19 C/SCA/9853/2012 CAV JUDGMENT as under:
"4. In light of the aforesaid, the following directions are issued:
I. Pending the final hearing of this petition, the respondent Nos.2 and 3 shall serve the notice under Section 260(1) of the Act dated 13.09.2012 upon respondent Nos.4 and 5, latest by 15.09.2012. On receipt of the same, respondent Nos.4 and 5 shall file reply to the said show cause notice, latest by 29.09.2012.
II. On receipt of such a reply, the respondent corporation shall intimate respondent Nos.4 and 5 about the date and time of hearing within 2 days from the receipt of the reply.
III. The respondent corporation and/or its competent authority shall hear respondent Nos.4 and 5 and pass an appropriate, reasoned order as provided under Section 260(2) of the Act, without being influenced by the fact that the present petition is admitted and these interim directions are issued.
IV. The respondent corporation shall decide the same in accordance with law and as per the building byelaws as well as General Development Regulations applicable and as prevailing. The respondent corporation Page 7 of 19 C/SCA/9853/2012 CAV JUDGMENT shall place the final order before this Court, accordingly.
V. The respondent corporation shall get the area, which is shown in the notice under Section 260(1) of the Act, surveyed, latest by 15.09.2012 by an officer, not below the rank of Deputy Estate Officer and produce a report before this Court in this petition alongwith the photographs, which should bear the date on which such photographs are taken. A copy of the said report shall be provided to the parties to this petition. Mr. Joshi, ld. Senior Advocate, assures this Court that respondent No.4 and 5 shall cooperate the officer in conducting the said survey."
4. Heard learned advocate Mr.Ravindra Shah for the petitioner, learned Senior Advocate Mr.Mihir Joshi assisted by learned advocate Mr.Jeet Bhatt for respondent Nos.4 and 5, learned Government Pleader Ms.Manisha Lavkumar assisted by learned Assistant Government Pleader Mr.D.M. Devnani for respondent No.1 and learned advocate Mr.Satyam Y. Chhaya for respondent No.3.
5. Learned advocate Mr.Ravindra Shah for the Page 8 of 19 C/SCA/9853/2012 CAV JUDGMENT petitioner has mainly contended that the petitioner is oldaged senior citizen residing with his wife adjacent to the plot in question. Respondent Nos.4 and 5 have carried out illegal and unauthorized construction on the plot in question and, therefore, the complaint was given to the respondent Corporation. However, though notice was issued under Section 267 of the GPMC Act, no further action was taken for removal of illegal construction carried out by respondent Nos.4 and 5. Learned advocate has referred the layout plan which is produced at Page36 of the compilation and pointed out that as per the layout plan, margin is required to be kept open on all the four sides of the plot in question. Learned advocate has referred the photographs produced at Pages52 to 54 of the compilation and pointed out that respondent Nos.4 and 5 have started illegal construction in a margin space and on the compound wall constructed by the petitioner, no prior permission of the respondent Corporation was obtained before carrying out such construction. It is submitted that the respondent Corporation issued notices under Section 267 of the GPMC Act on Page 9 of 19 C/SCA/9853/2012 CAV JUDGMENT 17.05.2011 and 06.08.2011 whereby respondent No.4 was asked to stop the illegal construction. However, in spite of receipt of such notices, respondent Nos.4 and 5 did not stop the illegal construction but in fact, carried out further illegal construction. In support of the said contention, learned advocate has referred the photographs which are produced at Pages 124 to 129 of the compilation. It is pointed out that such photographs were taken on 20.07.2012. Thus, it is contended that the private respondents have illegally carried out the construction on the plot in question.
5.1 Learned advocate Mr.Ravindra Shah for the petitioner, thereafter, submits that during the pendency of the petition, the respondent Corporation has passed an order on 18.07.2016 on the application submitted by respondent Nos.4 and 5 under the provisions of the Gujarat Regularization of Unauthorized Development Act, 2011 ('GRUDA' for short) and rejected the said application refusing to regularize the illegal construction. It is also pointed out that now the respondent Corporation has Page 10 of 19 C/SCA/9853/2012 CAV JUDGMENT issued order on 20.07.2016 under Section 260(2) of the GPMC Act for removal of construction. 5.2 Thus, it is contended that when respondent Nos.4 and 5 have carried out illegal and unauthorized construction without prior permission of the Corporation and when the application for regularization thereof under GURDA has been rejected as well as when the order under Section 260(2) of the GPMC Act has been issued by the respondent Corporation, necessary direction be issued to the respondent Corporation to demolish the illegal construction carried out by respondent Nos.4 and 5 on the plot in question forthwith.
6. On the other hand, learned advocate Mr.Satyam Chhaya appearing for the respondent Corporation has also submitted that at the relevant point of time, the respondent Corporation issued notices under Section 267 of the GPMC Act to respondent Nos.4 and 5 on 17.05.2011 and 06.08.2011 and asked them to stop the construction on the compound wall which was being constructed at the height of around 5 feet, above the Page 11 of 19 C/SCA/9853/2012 CAV JUDGMENT existing 5 feet wall. The Corporation has also issued prohibitive orders for carrying out further construction. However, the private respondents had not adhered to notices and carried out the construction activities. It is submitted that respondent Nos.4 and 5 have not asked for permission for carrying out the construction in question. It is submitted that as per the order passed by this Court on 13.09.2012, notices were served to respondent Nos.4 and 5 and after hearing respondent Nos.4 and 5, once again notice was issued on 27.09.2012. Thereafter also, respondent Nos.4 and 5 were heard from time to time.
6.1 At this stage, learned advocate Mr. Chhaya submits that so far as the application submitted by respondent Nos.4 and 5 under GRUDA is concerned, the private respondents were heard and after considering the submissions canvassed on behalf of respondent Nos.4 and 5 and after considering the material placed on record, the Deputy Town Development Officer (New West Zone) has passed an order on 18.07.2016, by which, the application of respondent Nos.4 and 5 came Page 12 of 19 C/SCA/9853/2012 CAV JUDGMENT to be rejected. It is submitted that the said order has not been challenged by respondent Nos.4 and 5 by filing an appeal before the appellate authority under GRUDA. Learned advocate Mr.Chhaya would further submit that when the unauthorized construction carried out by respondent Nos.4 and 5 is not regularized, the respondent Corporation passed an order under Section 260(2) of the GPMC Act on 20.07.2016 and thereby direction is given to respondent Nos.4 and 5 to demolish the illegal construction within a period of three days. However, because of the pendency of the petition, unauthorized construction was not demolished and, therefore, when this petition is finally heard today, the Corporation be permitted to demolish the illegal construction carried out by respondent Nos.4 and 5 on the plot in question.
6.2 Learned Senior Advocate Mr.Mihir Joshi appearing for the private respondents opposed this petition and mainly contended that this Court passed an order on 13.09.2012 in this petition and in the said order in Paragraph4, certain directions were issued by this Page 13 of 19 C/SCA/9853/2012 CAV JUDGMENT Court. It is submitted that thereafter, the respondent Corporation issued notice and respondent Nos.4 and 5 were heard. The private respondents produced documents and photographs before the Presiding officer, who conducted the hearing. No report came to be submitted by the Deputy Estate Officer for a period of four years and, therefore, on 30.06.2016, this Court directed the respondent Corporation to comply with the earlier order passed in this petition. Thereafter, the report was submitted wherein it was pointed out that the application for regularization of the unauthorized construction made by respondent Nos.4 and 5 was pending and, therefore, no order was passed by the respondent Corporation. Thereafter, pursuant to the Report dated 13.07.2016, respondent Nos.4 and 5 were again called for hearing on 15.07.2016 and on 18.07.2016, an application submitted by respondent Nos.4 and 5 under GRUDA came to be rejected. It is contended that while rejecting the said application, the respondent Corporation has not considered the submissions canvassed on behalf of respondent Nos.4 and 5 nor the documents produced during the course of Page 14 of 19 C/SCA/9853/2012 CAV JUDGMENT hearing were appreciated. It is submitted that immediately thereafter, the order dated 20.07.2016 came to be passed under Section 260(2) of the GPMC Act whereby respondent Nos.4 and 5 were asked to remove the alleged illegal construction. It is contended that though this Court passed an order whereby direction is given to the respondent Corporation to pass the final order so that this Court can further adjudicate upon the matter and having not acted in accordance with the directions issued by this Court, the respondent Corporation has tried to overreach the process of law and has tried to prejudice and frustrate the case of the private respondents. It is contended that the orders dated 18.07.2016 and 20.07.2016 are passed in haste. Such orders are illegal, arbitrary and violative of the fundamental rights of the private respondents. Learned Senior Advocate, therefore, urged that this petition may not be entertained.
7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the petitioner is old Page 15 of 19 C/SCA/9853/2012 CAV JUDGMENT aged senior citizen residing with his wife in the premises adjacent to the plot in question. Respondent Nos.4 and 5 have started illegal and unauthorized construction in the margin space and even on the compound wall. The petitioner submitted an application to the respondent Corporation. Some of the members of Sushilnagar Cooperative Housing Society Limited also submitted an application to the respondent Corporation. Initially, the respondent Corporation issued notices on 17.05.2011 and 06.08.2011 under Section 267 of the GPMC Act to respondent Nos.4 and 5, wherein it is specifically alleged that the private respondents are carrying out illegal construction without the permission of the Corporation in the margin space specified in the sketch. Respondent Nos.4 and 5 were, therefore, specifically asked to stop such illegal construction. From the material produced on record and from the photographs annexed with the compilation, it is clear that in spite of notices were issued under Section 267 of the GPMC Act, the private respondents have carried out further construction. When the present petition is filed, this Court passed an order on Page 16 of 19 C/SCA/9853/2012 CAV JUDGMENT 13.09.2012, as observed hereinabove, wherein certain directions were issued. The respondent Corporation has followed the said directions and notice under Section 260(1) of the GPMC Act came to be issued to the private respondents. It is surprising that though the direction was given in September, 2012, the respondent Corporation passed an order on 20.07.2016 before that on 18.07.2016, the respondent Corporation rejected the application filed by the private respondents under the provisions of the GRUDA for regularization of unauthorized construction. Further, it is also required to be noted that though the order under Section 260(2) of the GPMC Act is passed on 20.07.2016, till date, the same is not implemented.
8. At this stage, we would like to refer the decision rendered by the Hon'ble Supreme Court in the case of Royal Paradise Hote (P) Ltd. Vs. State of Haryana And Others reported in (2006) 7 SCC 597 wherein in Hon'ble Supreme Court has observed in Paragraph7 that "...It is time that the message goes aboard that those who defy the law would not be permitted to reap the benefit of their defiance of law and it is the duty of the High Courts to ensure Page 17 of 19 C/SCA/9853/2012 CAV JUDGMENT that such defiers of law are not rewarded. The High Court was therefore fully justified in refusing to interfere in the matter. The High Court was rightly conscious of its duty to ensure that violators of law do not get away with it."
9. The contention taken by the learned Senior Advocate appearing for the private respondents that the order dated 18.07.2016 passed by the Deputy General Development Officer (New West Zone) rejecting the application submitted by the private respondents under the provisions of the GRUDA is illegal, violative of fundamental rights and nonspeaking order, cannot be examined in the present proceedings filed by the petitioner. It is not in dispute that till date orders dated 18.07.2016 and 20.07.2016 are not challenged by respondent Nos.4 and 5. Thus, the said contention is misconceived.
10. Thus, in the aforesaid facts and circumstances of the present case, it is clear that the private respondents have carried out illegal construction in the margin area and on the compound wall, without prior permission of the respondent Corporation and in Page 18 of 19 C/SCA/9853/2012 CAV JUDGMENT spite of notice and prohibitory order issued under Section 267 of the GPMC Act, further construction was carried out by the private respondents. Further, the application submitted by the private respondents for regularization of unauthorized construction made on the plot in question under the provisions of the GRUDA is rejected by the authority on 18.07.2016. Thus, the respondent Corporation is required to implement the order dated 20.07.2016 passed under Section 260(2) of the GPMC Act.
11. In view of the aforesaid discussion, the petition is partlyallowed. The respondent Corporation is directed to take steps in view of the order dated 20.07.2016 passed under Section 260(2) of the GPMC Act without loss of further time. Since the main petition itself is disposed of, no further order is required to be passed in the Letters Patent Appeal and Civil Application, accordingly, same are disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) piyush Page 19 of 19