Gujarat High Court
Neal Tushar Vora vs State Of Gujarat on 5 January, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9804 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9848 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ NEAL TUSHAR VORA Versus STATE OF GUJARAT ================================================================ Appearance:
MR A D OZA, ADVOCATE for MR MEET A SHAH(9933) for the Petitioner(s) No. 1 MR DHAVAL DAVE, SR COUNSEL assisted by MR DHRUV TOLIYA(9249) for the Respondent(s) No. 6 MR SALIL M THAKORE(5821) for the Respondent(s) No. 5 MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2,3,4 SERVED BY RPAD (N)(6) for the Respondent(s) No. 1 ================================================================ CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 05/01/2022 COMMON CAV ORDER
1. By way of these petitions under Article 226 of the Constitution of India, the petitioners have challenged the communication by which the Corporation Page 1 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 pursuant to the hearings inter se between the parties to the petition has observed that further action on the revised plans submitted by the respondent No.6 shall be taken, in accordance with the General Development Control Regulations, 2017 (for short, hereinafter referred to as `the GDCR, 2017') by the Building Scrutiny Pool.
2. The lead matter for the purposes of this decision is Special Civil Application No.9408 of 2021. Prayers made in SCA No.9408 of 2021 read as under:
"9(B) This Hon'ble Court may be pleased to quash and set aside the impugned order dated 25.5.2021 passed by the respondent No.3 (Annexure - A) 9(C) This Hon'ble Court may be pleased to direct the respondent authorities to demolish any illegal construction including the structure for `Electrical Sub- Station' built up on 3 level underground (Cellar) parking ramp forthwith and further be pleased direct the respondent authorities to not to permit the respondent developer to carry out construction and installation of `Electrical Sub-Station' adjacent to residences of the petitioner in future."
3. The facts in brief are as under:
3.1. The petitioner is a resident of Someshwar Bungalows adjacent to the commercial complex named "Iconic Shyamal".
3.2. It is the case of the petitioner that the construction activities are being carried out without following the procedure of the provisions of the Page 2 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 comprehensive General Development Control Regulations, 2017, Gujarat Fire Prevention and Life Safety Measures Act, 2013 and the Gujarat Provincial Municipal Corporation Act, 1949.
3.3. It is the case of the petitioner that necessary margins are not left by the respondent No.6 -
Developer and the existing structure does not comply with the building level. The case of the petitioner is that the developer is carrying out construction of ground floor + 2 floors of "Electrical Sub Station" on the 3 level underground ramp and the front side of the sub-station has been kept towards the residence of the petitioner. The sub- station with high voltage / tension electric power constructed 10-12 feet away from Bungalow is a huge health hazard due to generation of magnetic radiation known to be adverse to health.
3.4. The electric sub-station cannot be permitted on a hollow ramp with space underneath which in case it collapses would be a great risk causing a fire. The construction is without the approved plans. Even the Torrent Power Limited had preferred a road facing location, however, being hand in glove with the officials of the Corporation, permissions are granted. The oil based sub-station would involve a dug pit which would hold 8000 liters of engine oil and same is a serious threat to life.
Page 3 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 3.5. In an earlier round of litigation in SCA No.4421 of 2001, the Court specifically directed hearing of parties and though extensive written arguments were filed, the impugned order is without assigning any reasons. In this context, the prayer is made to set aside the order as the same has been passed without assigning any reasons.
4. In Special Civil Application No.9408 of 2021, Mr. A.D. Oza, learned advocate assisted by Mr. Meet Shah, learned advocate has argued for the petitioner. In Special Civil Application No.9848 of 2021, Mr. P.A. Mehd, learned advocate has argued for the petitioners. Both the learned advocates have filed a synopsis of Written Arguments.
5. Mr. K.M. Antani, learned advocate has appeared for respondent Nos.1 to 4 for the State-respondents and Mr. Satyam Chhaya, learned advocate has appeared for the respondent - Ahmedabad Municipal Corporation, Mr. Salil M. Thakore, learned advocate has appeared for respondent No.5 - Torrent Power Limited while Mr. Dhaval Dave, learned Senior Counsel assisted by Mr. Dhruv Tolia, learned advocate has argued for respondent No.6 - Shafalya Infralink L.L.P. Written arguments have also been submitted by Mr. Dhruv Tolia for the respondent No.6 - Developer.
Page 4 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022
6. Mr. A.D. Oza, learned advocate assisted by Mr. Meet Shah, learned advocate for the petitioner has made the following submissions.
6.1. It appears from the communication dated 06.04.2021 of AMC (received by the petitioner on 08.04.2021) that a deliberate attempt to curtail the scope of hearing in connection to directions of this Hon'ble Court vide order dated 24.03.2021 is made on behest of the Developer. Despite of the fact that the Hon'ble Court has directed to decide the application/representation/complaints made by the petitioner, wherein, the petitioner has raised various grievances including illegal construction of Electrical Sub-Station. However, it is evident from the contents of the communication dated 06.04.2021 (at page No.250) that the AMC with an intention to help the Developer has attempted to confine the hearing only on the issue of illegal construction of Electrical Sub-Station. Such approach speaks volume about the ill intention of officer of the AMC.
6.2. It is submitted that the impugned order dated 25.05.2021 is wholly without jurisdiction. Section 478 of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter referred as 'GPMC Act') provides that the work or thing done without written permission of the Commissioner to be deemed Page 5 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 unauthorized. Therefore, all the construction carried out by the Developer including construction of Electrical Sub-Station and construction in margin land without permission of the Commissioner or approved/sanctioned plan shall be unauthorized and illegal construction. Moreover, in view of sub section
- 4 of Section 8 of the Gujarat Regularization of Unauthorized Development Act, 2011 ('GRUDA'), the AMC has no power to regularize such unauthorized construction.
6.3. Once the Notice under section 260 is issued by the AMC, the application for revised / fresh plan is not maintainable and cannot be considered. Otherwise, the entire provision and exercise thereunder would become redundant. Thus, the reliance on subordinate rules viz. Clause No.3.10.1 of the CGDCR by the AMC would not be of any help as the statutory provisions of the GPMC Act and GRUDA cannot be overridden by the CGDCR. Clause 3.10.1 of the CGDCR on which reliance is placed by the other side makes it clear that there is no scope for regularizing the present construction. Once the construction is carried out without prior approval / sanction, the question of considering revised / fresh plan does not arise as such construction/s amount to illegal and unauthorized constructions and in view of the provisions of GPMC Act, GRUDA, and CGDCR - 2017, the AMC cannot regularize such illegal and Page 6 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 unauthorized construction/s and same is required to be ordered to be demolished forthwith.
6.4. The Developer has constructed the Ground floor + 2 floors Electrical Sub-Station on 3 level underground parking ramp of the Commercial Complex and its front side has been kept towards residences of the petitioner. The Electrical Sub- Station having high voltage/tension electric power viz. 16000 kva (containing 8000-liter oil) is constructed only 10-12 feet away from our Bungalows. There is only one common wall (heighted 3-4 feet) and 4-5-feet internal road between the Electrical Sub-Station and residence of the petitioner. Since, the Electrical Sub-Station is constructed Ground Floor + 2 floors and its height is almost levelled to 4 floors of commercial complex, it entirely blocks the one side of our Bungalows (photographs are produced at page Nos.47-49). It is submitted that it is very dangerous to install the high-power Electrical Sub-Station on 3 level underground (Cellar) parking ramp as in case of unfortunate Fire Incident, huge damage will be caused to lives of petitioners / residents, visitors and vehicles parked in the 3-level underground / basement parking and once the vehicle/s catches the Fire, the Fire will be spread with bullet speed. Ultimately, it would be a case of destruction of many lives and residences in the vicinity.
Page 7 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 6.5. Admittedly, no permission / sanction much less approval for construction / placement of the Ground Floor + 2 Floor Electrical Sub-Station on 3 level underground (Cellar) parking ramp was granted by the AMC or any other competent authority till date. In fact, as per the plan no margin is left by the developer. It is evident from the lay out plan approved by the AMC (page no.68) and submitted to RERA (page no.88) that the sub-stations were not shown on the parking ramp at all. In fact, the Electrical Sub-Station/s is not at all shown in the plans approved by the AMC.
Violation of Fire Prevention and Safety Norms/ provisions:
It is submitted that the construction of Electrical Sub-Station at present place is completely violative of provisions many fire safety and other laws.
6.6. The provisions as envisaged in the Clause no. 22.12 and 22.13 under the heading of Fire Prevention and Safety have absolutely been violated by the Developer.
"22.12 Electrical Services for all Buildings:Page 8 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022
C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 These shall conform to those given in C‐1.12 Part 4 NBC Second revision and the IS; 1646‐1999 and particular attention is drawn to the following:
1. The electric distribution cable / wiring shall be laid in a separate duct. The duct shall be sealed at every floor with non‐combustible materials having the same fire resistance as that of the duct. Low and medium voltage wiring running in shaft and in false ceiling shall run in separate conduits.
2. Separate circuits for fire fighting pumps, lifts, staircases, corridor lighting and blowers for pressurizing system shall be provided directly from the main switch gear panel and these circuits shall be laid in separate conduit pipes, so that fire in one circuit will not affect the others. Such circuits shall be protected at origin by an automatic circuit breaker with its no‐volt coil removed. Master switches controlling essential service circuits shall be clearly labelled.
3. An independent and well‐ventilated electrical service room shall be provided on the ground level or first basement with direct access from outside or from the corridor for the purpose of termination of electric supply from the licensees' service and alternative supply Page 9 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 cables. The doors provided for the service room shall have fire resistance of not less than 2 hours.
4. If service room is located at the first basement, it should have automatic fire extinguishing system.
5. Suitable circuit breakers shall be provided at the appropriate points.
6. Electric supply for fire pump/fire lift should be provided separately and not get switched off along with the main supply of building.
22.13 Electrical Sub‐station for all buildings:
1. The sub‐station shall have separate fire resisting walls/surroundings and shall necessarily be located at the periphery of the floor having separate access preferably from fire escape staircase. The outside walls, ceiling and floor including doors and windows to the substation area shall be of 2h fire rating.
2. A sub‐station or a switch‐station with oil‐ filled equipment must not be located in the building.
3. The Sub‐Station area needs to be maintained at negative air pressure and area in substation shall not be used as storage/dump areas.Page 10 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022
C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022
4. No transformer shall be allowed inside the building. When housed inside the building, the transformer shall be of premises by walls/doors/cut outs having fire resistance rating of 4h."
6.7. The Chapter - 7 of the Model Building Bye-laws prescribes the Fire Protection and Fire Safety Requirements. Section 7.19 of the Model Building Bye-laws lays down the various norms for safety measures in Electric Sub-Station. Such norms are utterly violated and not adhered to by the Developer.
6.8. The provisions related to installation of electric sub-station, more particularly, oil-filled substation as envisaged in the Part 8 Building National Code - Section 2 Electric and Allied Installations are also violated.
6.9. The provisions viz. Clause 7 of IS 1646 formulated by the Bureau of India Standards related to electric substation are also completely violated.
6.10. As per the provisions of Section 18 of the Gujarat Fire Prevention and Life Safety Measures Act, 2013 and Rule 22 of the Gujarat Fire Prevention and Life Safety Measures Rules, 2014, the requirements of fire prevention and safety measures in the Building Bye-laws are mandatory to be Page 11 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 complied with by the Developer. No prior approval or sanction of Fire Safety officer has been taken before the construction of Electrical Sub-Station as required under the said Act and Rules.
6.11. The illegal construction of Electrical Sub- Station being violative of norms of above cited Laws and the Gujarat Fire Prevention and Life Safety Measures Act, 2013 and the Gujarat Fire Prevention and Life Safety Measures Rules, 2014 is required to be demolished. It is evident from the photographs annexed with the petition that there is no independent approach to the sub-station from outside the building as all sides of the sub-station are covered. In fact, no margin is left for entry of emergency vehicles like Ambulance, Fire Ambulance, Water Tanker etc.. Furthermore, the sub-station is placed above the ramp of parking without support of beams and thus, it would endanger the lives of many people. The Electrical substation is not placed in approved place.
6.12. The necessary margins as required under the Rule 6 and 8 of CGDCR - 2017 are not left by the Developers at construction site/plot. As per the approved lay out plan, 11.23 meters (6.73 + 4.50 meter) margin is required to be left between common wall of society and parking ramp. However, Page 12 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 no margin is left as per approved plan. In the approved Layout Plans, Electricity Power Substation has not been proposed deliberately and undisputedly, same has not been approved. Even in the FSI area calculation, the possibilities of accommodating the said substation are not feasible as in the approved plan the common area plot is shown for parking. The Developer and Torrent constructed the said substation without originally proposed or approval from the authorities. Under the circumstances, necessary action is required to be taken against the developer.
6.13. The Developer carries out the construction activities for more than 20-22 hours in a day, which causes extreme pollution and immense nuisance/ noise pollution to us and other residents of the society.
6.14. Due to construction activities by the Developer have caused huge damage to the properties of the members of the society as no adequate measures have been taken. The common wall of the society had fallen down, and the person/s of the society was badly injured.
6.15. Majority of times, the construction activities are being carried out in absence of Page 13 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 Engineers, Developers, Site Supervisors etc. and thereby, the lives of not only the labourers working at the construction site but also our and other residents' lives are put to risk.
6.16. The Developer in its layout plan before RERA without prior sanction and approval shown the Electrical Sub-Station and that too at different place then the existing one, hence, the prospective buyers have been misguided and cheated.
6.17. The Developer has not left the roadside margin as required under the CGDCR - 2017. In fact, the footpath is covered in its construction. Such illegal action of encroachment of public space must be dealt with sternly.
6.18. The development which puts the lives of people at risk cannot be regularized in any manner. In other words, the construction activities at the cost of infringement of Right to life of residents of the neighbour society cannot be permitted or/and regularized.
6.19. It is submitted that placement and construction of such high tension 'Electrical Sub- Station' at next-door or extreme close to our residences would seriously prejudice our right to life Page 14 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 and liberty as guaranteed under the Article 21 of the Constitution of India.
6.20. The Generator and other big noisy electrical equipment/s would be installed in the said high-power 'Electrical Sub-Station' and thereby, permanent noise pollution would be created. Furthermore, due to high-tension power servers / installations and other electrical equipment/s, the environment of such residence area will be seriously affected by the dangerous radius and would lead unhealthy environment for us as well as residents of such area.
6.21. The Hon'ble Apex Court in case In Re:
Noise Pollution - Implementation of the Laws for restricting use of loudspeakers and high-volume producing sound systems.
6.22. The presence of a sub-station which is so close to the house of the petitioner is a huge health hazard due to the generation of magnetic radiation and other waves which are known to have a huge impact on the health of persons, especially when the said sub-station is just 10-12 feet away from their residential units, which would result in massive, continuous and long term exposure to the waves and frequencies which are emitted by such large sub-Page 15 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022
C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 stations. It is therefore submitted that the placement and construction of such high tension Electrical Sub- Station next to or extreme close to residence of the petitioner would seriously prejudice the right to life and liberty of the petitioner guaranteed under the Article 21 of the Constitution of India. He relies on the scientific data produced with the petition.
6.23. Some of the officers of the AMC are hands in glove with the Developer as at no stage such illegal construction got attention of the officers of the authority, more particularly even after complaints were made. Though the construction is not as per the approved plan, the water and drainage connection to the site having unauthorized construction is extended by the AMC. It is earnestly requested that necessary inquiry in regard to decide the responsibility of officer for permitting such illegal construction may be undertaken and penal action against erring officers are required to be taken.
6.24. Torrent is the owner of the disputed 33 kv sub-station by virtue of perpetual lease deed as the said substation forms part of the transmission infrastructure of the Torrent and is going to be used for supplying electricity to not just this building but also to third parties. The Torrent has called the Page 16 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 disputed sub-station 'a distribution sub-station' at various places in its Affidavit-in-Reply. However, it appears that the disputed 'Electric Sub-station' is not a 'distribution sub-station' but a 'transmission sub-station'.
6.25. It is apparent that the capacity of the present sub-station is about 16,000 kva, which is much more than what would be required by the present building. In fact, the Torrent itself states that there are only 39 substations in the whole of the city of Ahmedabad which have a capacity higher than the present substation. This implies that out of the thousands of commercial buildings situated in the city of Ahmedabad, none of them have required a substation of this size and scale.
6.26. It is therefore quite apparent that the present substation is in fact a transmission substation and a part of the grid transmission equipment of the Torrent which is being used to supply electricity to not just the building of Iconic Shyamal but also to hundreds of customers of the Torrent who are outside the building but in the adjacent area. Thus, this is not a case of installation of electrical equipment for use by the building but is in fact use of the margin space by a third party for its own commercial use.
Page 17 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 6.27. Section 3.2 of the Supply Code would indicate that a 33KV substation would only be needed in case where the contract demand is more than 4000 kva/kw. Now, in this case, there is going to be no single contract demand since each and every unit of the building would be a separate contract and would have a separate meter and a separate bill being raised. A typical office would require a connection of around 5-10 kva/kw. Usually, 4000 kva/kw contract demands are contract demands of an industry and there cannot be a contract demand of any single member/unit of a normal commercial complex. This fact is also fortified by the Torrent's own statement that there are only 39 other substations in the whole of Ahmedabad which have more capacity than this one.
6.28. Torrent itself has acquired the said land by way of registered perpetual lease deed from its owners/developer and has then chosen to set up its substation there. It is also obvious that the builder and the society have made money by selling the said margin land, which was otherwise of no value and would have no commercial use, to Torrent for consideration and permitted Torrent to set up the gigantic substation and cater to its other customers in the area for its own profit and commercial gain.
Page 18 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 6.29. Clause 6.7.3 of the GDCR clarifies what use can be made of the margin space and makes it clear that this particular type of activity of the respondents is prohibited. It also becomes apparent that the parking ramp itself is also illegal since it violates both the conditions of height of the building and size of the building and therefore the ramp also cannot be in margin space. It also becomes apparent that the condition of the height of the constructed structure is also violated.
6.30. The original approval that has been granted by the Electrical Inspector is not for a sub- station on the parking ramp and there is a lot of space between the substation and the margin. The substation is shown in the drawing of Torrent as being quite a distance away from the margin, which is not the case here. The Electrical Inspector has not been given the plan of the building and perhaps has no idea that there is a parking ramp beneath the substation. It is therefore not the least bit surprising that the said drawings bearing seal/signature are being suppressed. However, it is shocking that Torrent has chosen to suppress the said drawings.
6.31. There are 3 different plans/drawings, one submitted to RERA, one submitted to the Page 19 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 Corporation, and one submitted to the Electrical Inspector. None of them speak of a substation on a ramp. In fact, perused together, it is impossible to reconcile any of the plans/drawings. Therefore, no weightage can be given to the so-called sanction of the Electrical Inspector or the Corporation.
6.32. The lease deed itself speaks of 7 compact substations, which are again not made here and something completely different seems to have been done. It is now an admitted fact that the 33 KV substation is not meant to serve just the building of Iconic Shyamal but is meant to serve the whole area as well. Thus, this will never fall within the meaning of "Electrical utilities of Iconic Shyamal".
7. Mr. Oza, learned counsel for the petitioner has relied on the following decisions:
(a) Supertech Limited v. Emerald Court Owner Resident Welfare Association & Ors.
reported in 2021 (10) SCC 1.
(b) K. Ramadas Shenoy v. Chief Officer, Town Municipal Council reported in 1974 (2) SCC 506
(c) Dr. G.N. Khajuria v. Delhi Development Authority reported in 1995(5) SCC 762
(d) Friends Colony Development Committee v. State of Orissa reported in 2004(8) SCC 733 Page 20 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022
(e) Priyanka Estate International (P) Ltd. v. State of Assam reported in 2010(2) SCC 27
(f) Esha Ekta Apartments Cooperative Housing Society Ltd. v. Municipal Corporation of Mumbai reported in 2013(5) SCC 357
(g) Oryx Fisheries Private Limited v. Union of India (UOI) and others reported in 2010(13) SCC 427
(h) Kushuma Devi v. Sheopati Devi (Dead) and others reported in 2019(5) SCC 744
(i) Subhash Kumar v. State of Bihar and others reported in 1991(1) SCC 598
(j) Noise Pollution - Implementation of the Laws for restricting use of loudspeakers and high-volume producing sound systems reported in 2005(5) SCC 733.
8. Mr. P.A. Mehd, learned advocate for the petitioners of Special Civil Application No.9848 of 2021 has adopted the submissions of Mr. Oza, learned counsel appearing for the petitioner in Special Civil Application No.9804 of 2021.
9. Mr. Dhaval Dave, learned Senior Counsel assisted by Mr. Dhruv Tolia, learned advocate for the respondent
- Developer has made the following submissions:
9.1. The impugned order is perfectly just and legal and is a reasoned order.Page 21 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022
C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 9.2. In the earlier round of litigation, the contention of the petitioners was that the civil construction carried out for housing the electrical sub-station was at a place different than one shown in the plan. The respondent - developer had there contended that a revised development permission was submitted pursuant to the letter of Torrent Power Limited and this was done as a notice u/S. 260 of the GPMC Act was issued by the Corporation.
9.3. Mr. Dave submitted that on a broad consensus arrived at between the parties, this Court on 25.3.2021 disposed off the matter that till the revised plan is sanctioned, the respondent No.6 will not carry out the further civil construction.
9.4. Objections raised by the petitioners were considered and rejected after considering the provisions of the GDCR. Directions therefore have been given to process the plans further.
9.5. Clause 6.7.3.8 of GDCR which is referred to in clause 11 of the impugned order clearly spells out that the civil construction for housing electrical substation in the margin space is absolutely permissible.
9.6. There is sufficient open space of 9 meters between the bungalows of the Petitioners and the Page 22 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 civil construction for the electrical substation. As such, even the requirement is also to keep the said minimum space as per the internal communication dated 15.12.2018 issued by the Respondent No.2 - Ahmedabad Municipal Corporation for giving general directions to be observed while scrutinizing the plans for development.
9.7. The contention of the Petitioners that the impugned order is not recording any reasons in support thereof is wholly devoid of substance. As such, Respondent No.2 - Ahmedabad Municipal Corporation has explained in its affidavit-in-reply the entire decision making process leading to the impugned order.
9.8. There is no substance in the contention of the Petitioners that since the civil construction put up so far by Respondent No.6 was without sanction of the revised plan, the impugned order ought to have ordered demolition of the same first. Apropos the same, it deserves to be mentioned that though similar was the prayer in the earlier petition, the same was not granted based upon the consensus reached therein pursuant to which only Respondent No.6 was restrained from putting up further construction on the basis of its undertaking for the same. This apart, there is no point in insisting Page 23 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 for demolition of the construction put up in anticipation of sanction of revised plan when objections to the sanction of such revised plan at the instance of the Petitioners are found to be not sustainable in light of GDCR. It is needless to mention that the construction which is otherwise permissible as per GDCR but which is carried out without sanction plan for the same qualifies as irregular in nature as opposed to illegal in nature. The former can be r e g u l a r i z e d with post- facto grant of permission while the later has no scope for regularization as it is not permissible under GDCR. The later warrants demolition and not the former if the concerned person is prepared to seek sanction for the same. In view of this, the reliance placed on the provisions of GRUDA and decision in the case of Supertech Limited (Supra) reported in 2021 (10) SCC 1 by the petitioners is wholly misconceived.
9.9. There is no substance in the contention of the petitioners that the electrical substation in question is not meant for the commercial complex of respondent No.6 alone but for the purpose of catering to the need of others. When respondent No.6 is not having objection to the electrical substation proposed to be installed in its premises taking care of the need of others also, it is indeed Page 24 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 not possible to appreciate as to what could be the legal right of the Petitioners to object to the same. This apart, as explained by respondent No.5 - Torrent Power Limited, it is practically impossible to have electrical substation each building wise separately.
9.10. The objection raised by the petitioners to the lease deed executed by respondent No.6 in favour of respondent No.5 - Torrent Power Limited is also misconceived. The same is for nominal rent and solely for the purpose of facilitating unhindered access to the electrical substation by Respondent No.5 - Torrent Power Limited. Besides this, no legal right of the petitioners is infringed on account of the same.
9.11. There is no substance in the contention of the Petitioners that the electrical substation in question is on the ramp which is not permissible. As it appears, an impression was sought to be created by the Petitioners that the ramp is an elevated construction upon which the civil construction for electrical substation would come up. However, in fact, the ramp is in the form of slope for the purpose of entering into the parking area in basement and the civil construction for the electrical substation is on the slab on the ground Page 25 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 level only.
9.12. The certificate of structural stability issued by Respondent No.2 - AMC's licensed the Structural Engineer also testifies that the slab at the ground level on which the civil construction for electrical substation is put up is structurally stable.
9.13. The reliance placed by the Petitioners upon the National Building Code (NBC) is also misconceived. Because, NBC is non-statutory and the form of model to be considered by the appropriate authority while framing Rules and Regulations. Nothing contained therein can be considered as having the binding effect. Reliance is placed on the decision in the case of C.M. Dinesh Mani, Ex-Mayor, Corporation of Cochin v. State of Kerala & Others, 2015 SCC Online Kerala 20058, paragraphs 17 & 18). Therefore, even if it is to be assumed on hypothesis that there is a breach thereof, the same would not result into infringement of any legal right of the Petitioners. Save and except GDCR nothing is to be considered for considering the objections of the Petitioners.
9.14. So far as alleged damage to the properties of the Petitioners sought to be substantiated through photographs is concerned, it Page 26 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 deserves to be mentioned, assuming that the same would qualify in the domain of disputed questions of fact for the adjudication of which the present petitions are not the proper remedy.
9.15. The petitioners have no right to insist that the revised plan should not be processed further when all the objections of the Petitioners have been rejected vide the impugned order. Since the commercial complex of respondent No.6 is complete in all respect, a huge loss is being caused to Respondent No.6 everyday as respondent No.6 in unable to generate revenue therefrom on account of non-occupation of the same by allottees thereof which is due to lack of electricity owing to non- installation of electrical substation.
9.16. In order to seek relief in the petitions under Article 226 of the Constitution of India, it is sine qua non for the Petitioners to show infringement of legal right vested in them. A mere inconvenience, which appears to be at the most the case of the Petitioners, is no ground to maintain a petition under Article 226 of the Constitution of India. Reliance is placed on the decision in the case of Jasbhai Motibhai Desai v. Roshan Kumar & Others (1976) 1 SCC 671, paragraphs 47 to 51 & Ullasba Mahavirsinh Barach v. Union of India & Page 27 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 others 2013 SCC Online Gujarat 1131, paragraphs 22 & 23 & Judgment dated 5th June 2017 in SCA 10689 OF 2016 in the case of Highness Hotel Private Limited v. AMC & others, paragraph 20.)
10. Mr. Salil M. Thakore, learned advocate appearing for the Torrent Power Limited has taken the Court through the affidavits of the Torrent Power Limited and made the following submissions:
10.1. The allegations regarding the sub-station posing a health hazard are vague.
10.2. The electric sub-station is a proposed 33KV distribution sub-station with 2 x 8 MVA (2 transformers of 8 Mega Volt Ampere) 10.3. Ahmedabad has around 39, 33 kv sub-
station with a capacity of 2 x 20 MVA which is much higher than the proposed sub-station. 17 sub- stations are located inside the premises pose no danger.
10.4. The installation has been approved after drawing of plans which have been approved by the Deputy Chief Electrical Inspector and his approval.
10.5. The sub-station is not too close to the wall Page 28 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 of the petitioners. It is at a distance of 4.5 inches. As per bye-law distance between bungalow and compound wall is at least 3 meters.
10.6. The allegations against the Company are baseless. The structural design of the sub-station is done by experts. There is no fire risk issue. Torrent would be installing a nitrogen injection fire system and also placing portable fire extinguishers.
10.7. Reliance placed on research papers is absurd. They have been produced to sensationalize the issue. Such reports cannot form the basis of deciding the issue in a writ petition under Article 226 of the Constitution of India.
10.8. The power requirement of the complex is expected to be 5.4 MVA. The transformers usually are of 8 MVA as it is not feasible to provide transformers of varying requirements. Two transformers are placed so that if one stops running, the other can continue. Both transformers would operate simultaneously upto around a capacity of 8 MVA between them. The requirement of the complex is 5.4 MVA and the balance power would become part of the distribution system.
10.9. The land is leased to Torrent Power Limited on a token rent of Rs.101/- per annum. The Page 29 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 allegation of margin land being put to commercial use by the builder is misconceived.
11. Mr. Kanva Antani, learned advocate for Mr. Satyam Chhaya, learned advocate for the respondents would submit that no writ of certiorari or mandamus can be issued. No right has been infringed or violated. The petition is premature.
11.1. He would submit that the revised plans will yet be scrutinized by the Building Pool and, therefore, the exercise is yet not complete. The petitioners were heard. The objections were considered if clauses 11 to 22 of the order are seen and, therefore, these reflect the reasonings of the Corporation while considering and dismissing the objections of the petitioners.
11.2. There has been a deliberation and after proper application of mind, considering the CGDCR, 2017, it is observed that if the developer submits an undertaking as mentioned in the order their case will be considered by the Building Plan Scrutiny Pool.
11.3. Mr. Antani, learned counsel placed reliance on various provisions especially Clause 6.3.8 of the CGDCR, 2017 to submit that use of margin land for putting up sub-station is permitted Page 30 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 as per CGDCR, 2017.
12. Considering the submissions made by the learned advocates for the respective parties, what this Court needs only to consider is whether the putting up of the Electric Sub-Station by the Developer, respondent No.6, on its own premises is permissible, within the frame work of the law and also whether it would in any manner pose a serious health hazard for the petitioners.
13. Initially, the petitioners had approached the Court by filing Special Civil Application No.4421 of 2021. The prayers made in that petition read as under:
"9(B). This Hon'ble Court may be pleased to direct the respondent no.1 to investigate and inquire in connection to the representations cum complains dated 01.02.2021 (Annexure - A Collectively) made by the petitioners and further be pleased to direct the respondent authorities to take necessary steps to stop and restrict the further illegal construction and installation of 'Electrical Sub-Station' adjacent to residences of the petitioners;
9(C). This Hon'ble Court may be pleased to direct the respondent authorities to demolish illegal construction and the structure for 'Electrical Sub-Station' built up on 3 level underground (Cellar) parking ramp forthwith and further be pleased direct the respondent authorities to not to permit the respondent developer to carry out further construction and installation of 'Electrical Sub-Station' adjacent to residences of the petitioners"Page 31 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022
C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022
14. Special Civil Application No.4421 of 2021 was heard and disposed of by an order dated 24.3.2021. The order was passed on a consensus arrived at between the petitioner, the Developer, the Corporation and Torrent Power Limited.
15. It will be in the fitness of things to reproduce the relevant portion of the order dated 24.3.2021 passed in Special Civil Application No.4421 of 2021. Relevant paragraph Nos.2 to 11 of the order read as under:
"2. Heard Mr. A. D. Oza, learned advocate with Mr. Meet Shah, learned advocate for the petitioners, Ms. Jyoti Bhatt, learned AGP for respondent no.1-State, Mr. Satyam Chhaya, learned advocate for respondents nos.2 and 3, Mr. Salil Thakore, learned advocate for respondent no.4, learned Senior Advocate Mr. Y. S. Lakhani for Mr. Jay M. Thakkar, learned advocate for respondent no.5 and Mr. Dhaval Dave, learned Senior Advocate with Mr. Dhruv Tolia, learned advocate for respondent no.6.
3. After the notice was issued by this Court on 05/03/2021, the matter was adjourned from time to time. In between learned Senior Advocate Mr. Dhaval Dave who represents respondent no.6 also had tendered an affidavit which was taken on record and in that affidavit, in para-4, it is stated as under:
"4 With reference to the aforesaid grievance of the Petitioners in the present petition, it is submitted that the Respondent No.6 has submitted in writing Page 32 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 to the Respondent No.2- the Ahmedabad Municipal Corporation that the Respondent No.6 will not carry out the civil construction qua installation of electrical substation in respect of its aforesaid project unless and until the requisite permission for the same is granted to Respondent No.6 by the Respondent No.2. It is further submitted that civil construction qua installation of electrical substation in respect of its aforesaid project of Respondent No.6 will be carried out in consonance with the permission for the same as and when granted by Respondent No.2 - the Ahmedabad Municipal Corporation pursuant to the application for the same by the Respondent No.6."
4. In response to the aforesaid affidavit, for the petitioners, learned advocate Mr. A. D. Oza had filed counter response and in para-5 of the said counter response, it is stated as under:
"5. With reference to para no.4 of the Affidavit dated 15.03.2021 of the respondent no.6, it is submitted that with an intention to get away from the clutches of this Hon'ble Court and be resorting illegal methods, the respondent developer is intent to regularize its huge illegal construction including illegal installation/construction for Electrical SubStation. It has been learnt by the petitioners that the respondent developer has started construction of wall which is heighted up to 2 floors (Ground Floor + 2 Floor) of the residences of the petitioners in margin land and due to such illegal construction, the petitioners will be deprived from natural air and light circulation. Such illegal action would amount to infringement of the Page 33 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 fundamental rights of the petitioners."
5. Thereafter one more affidavit i.e. additional affidavit was filed by the petitioners wherein in para-2 and 3, it is stated as under:
"2. It is submitted that the meeting of the members of the society was convened on 14.03.2021 inter alia for the purpose of taking the necessary actions against the illegal construction including illegal construction of Electrical sub-station and illegal construction in margin land carried out by the respondent developer. The necessary Resolution was passed by the members of the society.
3. In view of the unanimous resolution dated 14.03.2021 passed by the members of the respondent no.5 society, the Secretary of the society vide communication dated 17.03.2021 has requested the respondent no.2 and 3 authorities to take the necessary action to restrain the illegal construction being carried out by the respondent developer in margin land and further requested to not to regularize the illegal construction carried out by the respondent developer. The communication dated 17.03.2021 was supplied to all the members of the society including the petitioners. A copy of the communication dated 17.03.2021 along with annexures annexed thereto is annexed herewith and marked as Annexure-I. It is evident from the communication and annexures thereof that not only the present petitioners, but all the members of the society are being adversely affected by the activities of carrying out illegal construction of commercial complex including the illegal construction of Electrical Substation and Page 34 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 construction in margin land."
6. Thereafter, today when the matter was called out, there is consensus among the parties that if the representations cum complaints made by the petitioners against respondent no.6 are directed to be considered by respondent no.2 along with the fresh plans in respect of 'Electric Sub-Station' that respondent no.6 may submit for approval in respect of setting of 'Electric Sub-Station' in respect of civil construction work for 'Electric Sub-Station' may be considered by the authority together, it would serve the end of justice.
7. It is submitted by Mr. A. D. Oza, learned advocate for the petitioners that in event if fresh plans are submitted, he may be given right to raise his objections and the same may also be considered while considering the applications/representations/complaints on the ground that as per the law fresh plans cannot be submitted.
8. Mr. Y. S. Lakhani, learned Senior Advocate with Mr.Jay M. Thakkar, learned advocate for respondent no.5 submitted that society is also an interested party and, therefore, while deciding the applications / representations / complaints that the respondent no.6 may make while considering the objections / representations of the petitioners, stand of society also may be taken into consideration as the petitioners seems one of the members of the society and stand of society may be different then that of the petitioners.
9. Learned advocate Mr. Satyam Chhaya representing the respondents nos.2 and 3 Ahmedabad Municipal Corporation and its authority submitted that the provisions of the Act do not provide for hearing the objection Page 35 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 while granting permission sought by any person who intend to make construction by seeking approval from the Ahmedabad Municipal Corporation but in view of the peculiar facts of the case if direction are issued by this Court to hear the objector as well as the society, the direction that the Court may issue will be complied with in its true letter and spirit.
10. Mr. Salil M. Thakore, learned advocate for respondent no.4 further submitted that at this stage, since the dispute is in respect of civil construction, their role is very limited and respondent no.4 will be abide by the directions that this Court may issue.
11. In view of aforesaid consensus arrived at between the respective parties, without going into the merits of the matter or without opining any expressions in respect of whether the petition has any merit in it or whether respondent no.6 has committed any illegality or not, the present petition is disposed of by issuing following directions:
1) Respondent no.6 shall make an application for approval of fresh/revised plans for civil construction of the Ahmedabad Municipal Corporation within a period of fifteen days from today. As soon as such application is received by the Ahmedabad Municipal Corporation, the Ahmedabad Municipal Corporation shall issue notice which will be sent through e-
mode and RPAD to all the interested stake holders with the present petitioners as well as respondent no.5 and fix a date of hearing and in between from the date of issuance of notice till the date of hearing, all the parties are at liberty to produce any other material which according to them is important for deciding the issue in Page 36 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 question and thereafter on the date of hearing, the competent authority i.e. respondent no.2 shall hear present petitioners and respondents nos.5 and 6 or their authorized representatives and in case if respondent no.4 also wants to participate in hearing, in that case, intimation should also be given to respondent no.4 so as to ensure that the issue may not get complicated further.
2) On the date of hearing, in any case, no adjournment shall be granted to either side and hearing should be completed on the very same day. In case if any request for adjournment is required, the same must be made by either party three days before and thereafter only the same may be considered and hearing may be fixed and thereafter hearing must get over on the very same day that may be fixed. After hearing the parties on a particular date, the competent authority i.e. respondent no.2 is directed to pass consolidated order strictly in accordance with law upon the applications/representation/complains of the petitioners and the same shall be communicated to all the parties by e-mode and by RPAD.
3) Parties are directed to supply their e- mail address to respondent no.2 latest by 01/04/2021."
16. Reading of the order clearly indicates that the petitioner had restricted his grievance only to the extent of representations and complaints in respect of the fresh plans concerning the Electric Sub- station. The directions were issued in light of the consensus where it was provided that the Page 37 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 respondent No.6 will make and submit for approval fresh / revised plans for construction.
17. When therefore, a consent was given by the petitioner to let the respondent No.6 give fresh plans for approval then it is now not open for the petitioner to turn around and once again agitate the issue of the construction of the entire building and / or that of the electric sub-station being unauthorized. The petitioner cannot take a contention that the construction of the Electric Sub- Station on the premises owned by the Developer is unauthorized. It is now therefore not open for the petitioner to press into service the provisions of Sections 260 and 478 of the Gujarat Provincial Corporations Act, 1979 into service. The counsel for the petitioner cannot now argue that once the Corporation had given a notice on 4.3.2021 under Section 260 of the GPMC Act, no fresh plans can be approved. That issue of the construction being unauthorized was given up the moment they agreed to have the plans been made afresh and also participate in the hearings on the question whether plans could be approved.
18. The validity of the order dated 25.5.2021 cannot be faulted on the ground that contentions regarding violation of CGDCR, 2017 violation of Fire Safety Laws or the National Building Code (for short Page 38 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 hereinafter referred to as `NBC') were not dealt with or considered when the petitioner himself agreed to have a fresh plan submitted by the Developer for approval. That the sub-station was being put up on margin land contrary to building laws was also misconceived. Admittedly, as is evident from the plans and annexed photographs and reading of the replies filed that the sub-station is on the premises of the Developer.
19. The CGDCR, 2017 are regulations statutory in nature framed to take care of different jurisdictions in different Acts. Framing them under Section 116A(1) of the Gujarat Town Planning Act, 1976, Section 155 of the Gujarat Municipalities Act, 1963 etc. the regulations are comprising of five different sections. The three main Sections are `Procedure Regulations', `Planning Regulations' and `Performance Regulations.'
20. The concern of the petitioner, therefore, whether it is permissible for an electric sub-station of 8 KVA (Two Transformers) to come up on land the premises of the Developer in question and whether the margin land can be so used is the only issue that needs to be considered. The argument of the petitioner therefore that three different plans showed three different locations for RERA, AMC and Torrent Power Limited also now have no merit to be Page 39 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 deserving of any consideration.
21. Clause 3.7 of the CGDCR, 2017 deals with procedure for revising and re-validating a Development Permission. The question here is not of re-validating a development permission or revising it because there is no issue of the increase in utilized FSI, reduction in parking area, change in orientation of building or change of use in building. Even otherwise, once having invited an order, as discussed above in Special Civil Application No.4421 of 2021, these arguments of the petitioner need no consideration. The argument, therefore, of the applicability of Clause 3.10 of the CGDCR, 2017 of the building being unauthorized stands to be dismissed.
22. The first question, therefore, is that is the Electric Sub-Station coming up on a ramp as sought to be projected by the petitioners. Second question is the utilization of the margin land between the common wall of the bungalows of the petitioners and the property of the developer in violation of the building / land laws and whether the Torrent Power Limited is acting hand in glove with the officer of the Ahmedabad Municipal Corporation for commercial gain and causing danger to life and property of the petitioner needs to be considered.
Page 40 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022
23. The reading of the impugned order especially Clauses 11 to 23 makes it important to arrive at a just conclusion.
24. Clause 11 mentions clause 6.7.3.8 of the CGDCR, 2017. The same reads as under:
"6.7.3. Permissible uses in Margin:
...
8. Electrical Infrastructure: Electrical Sub-
Station, Transformer Room, Box- Type Transformer, Section Feeder, Pillar, Auxiliary Power Back-up, System and meter room according to the norms of the Competent Electric Company shall be permitted in marginal space except (roadside margin) of the building unit. The area of such construction shall not be counted towards FSI.
..."
25. Reading thereof indicates that it is permissible to use margin land for electrical infrastructure for constructing electric sub-station etc. according to the norms of the competent electricity company. The distance between the sub-station and the compound wall of the respondent No.6 is 4.5 meters and therefore the distance is sufficient. Moreover, once the same is within the purview of the CGDCR, the National Building Code which is non-statutory cannot be pressed into service. Reading of the communication dated 11.12.2018 (Page No.127) would also indicate that the revised plan submitted by the developer shows a `public domain' space of Page 41 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 4.5 meters. Clause 12 records that as per clause 6.17.5.5 of the GDCR deals with the common plot. 6.17.5.5 provides that no construction shall be permissible in the common plot except electrical sub-station, transformer room etc. subject to the requirements that there is maximum ground coverage of 15% of the respective common plot. Maximum height of the construction will be 7.5 meters from the level of the Building Unit. This shall not be considered to be towards computation of the FSI of the Building Unit.
26. Clause 13 of the impugned order speaks of a provision of a penalty clause under 3.10 read with table 3.4 of the CGDCR, 2017.
27. The order also refers to the safety concerns as voiced by the petitioners in their objections regarding fire safety. Even the affidavit filed by the Torrent Power Limited confirm that fire safety is considered and nitrogen injection fire system is to be installed. The plan has been examined and this Court would not sit in appeal over the views of an expert body. The perception of the petitioner that the sub- station will pose a health hazard or emit radiation is misconceived. Apart from the drawings been approved by the Deputy Chief Electrical Inspector, in consonance with what is stated in the impugned order, the affidavit records that the structural design Page 42 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 is done by experts and Torrent Power Limited will be installing a nitrogen injection fire protection system and will also be placing fire extinguisher. Moreover, the affidavit of the developer also indicates that Fire Tenders / Ambulances will have approach to the Electric Sub-Station due to the availability of 4.57 meters of margin space available.
28. The impugned order specifically indicates that on examination of the revised plan, it is clear that there is a 40 meter road and a nine meter road and, therefore, the margin land of 4.5 meters is to have no construction over that level and will therefore be easily approachable by the Fire tenders / Ambulances.
29. The revised plans are yet to be sanctioned and will be processed by the Building Plan Scrutiny Pool on the Developer giving an undertaking as referred to in the impugned order.
30. The projections through the submissions and photographs that the electric sub-station is on the ramp and elevated is also misconceived. Reading the developer's affidavit indicates that the ramp is in the form of a slope for the purposes of entering into the parking area in basement and the civil construction for the electrical sub-station is on the slab on the ground level only the definition of the floor in Page 43 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 CGDCR, 2017 clause 2.68 reads as under:
"2.68. Floor:
Means the lower surface in a storey on which one normally walks in a building, and does not include a mezzanine floor. Ground Floor is the floor at ground level with a plinth- hollow or solid, and direct access to a street or open space. The floor above it with minimum permissible height shall be termed as floor 1, with the next higher floor being termed as floor 2, and so on upwards."
(Emphasis supplied)
31. The apprehensions of the scale of the sub-station's operation and terming it as a electrical factory by the petitioner is also exaggerated. The affidavit of Torrent Power indicates that in the City of Ahmedabad, there are 39 sub stations of 33 KV each with a capacity of 2 x 20 MVA. Many of them are located in crowded areas or inside complexes. There are 7 KV 33 sub-stations ranging from 4.1 X 20 MVA and larger sub-stations do exist at Transtadia Asarwa Civil Hospital, Apparel Park etc. Moreover, the allegation of commercialization is also misconceived. The affidavit of Torrent Power clearly states that the proposed sub-station is going to be a distribution sub-station. The sub-station would have a capacity of 2 x 8 MVA and, therefore, have two transformers of 8 Mega Volt Ampere each. The approximate requirement of the complex is expected to be 5.4 MVA and Torrent Power Limited usually provides transformers with a minimum capacity of 8 Page 44 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 MVA. Two transformers will operate simultaneously around 8 MVA. 5.4 MVA being the requirement of the Complex balance power will become part of the distribution system to be distributed outside to meet the requirement of the area.
32. As far as the reliance placed on the National Building Code is concerned, what is evident is that it is a non-statutory in form of a model code.
33. Clause 13.11 of the CDGCR, 2017 provides that adequate electrical infrastructure as published in the National Building Code shall be provided to buildings to the satisfaction of the competent authority. Even the NBC says location of sub-station in basement has to be avoided if possible. That is evident from the photographs placed on record. The sub-station in question is on the floor and not in the basement. Structural stability certificate has been placed on record.
34. Even the decision in the case of C.M. Dinesh Mani (Supra) makes it clear that National Building Code may not be binding.
35. As far as decisions relied upon by Mr. A.D. Oza, learned counsel for the petitioner are concerned, they are in context of completely blatant unauthorized construction made by variations or Page 45 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022 C/SCA/9804/2021 CAV ORDER DATED: 05/01/2022 change from what was actually permissible. The case on hand is not the one of that kind. Even otherwise a scrutiny by the Building Scrutiny Pool is pending.
36. The order impugned may not be one that can be tested on the yardstick of a judicial mind on the aspect of the reasons. Evidently, considering the objections, the order reflects reasons. The revised plans are yet to be considered by the concerned department i.e. Building Plan Scrutiny Pool in accordance with law and particularly the provisions of the CGDCR, 2017.
37. In view of above, both the petitions are dismissed with no order as to costs. Interim Relief, if any, stands vacated forthwith.
[ BIREN VAISHNAV, J. ] FURTHER ORDER Learned counsel for the petitioners has made a request to stay the order. Such request is rejected.
[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA Page 46 of 46 Downloaded on : Wed Jan 12 17:08:05 IST 2022