Gujarat High Court
Sharifbhai Hasambhai Sakrarayani vs State Of Gujarat & 23....Opponent(S) on 5 September, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/233/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 233 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA Sd/-
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
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, 1950
or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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SHARIFBHAI HASAMBHAI SAKRARAYANI....Applicant(s)
Versus
STATE OF GUJARAT & 23....Opponent(s)
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MS JIGNASA B TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR ASHISH DAGLI with APURVA K JANI, ADVOCATE for the
Opponent(s) No. 12 - 16
DS AFF.NOT FILED (N) for the Opponent(s) No. 23 - 24
MR ASHISH M DAGLI, ADVOCATE for the Opponent(s) No. 10
MR PREMAL R JOSHI, ADVOCATE for the Opponent(s) No. 6
MR SHALIN MEHTA, Senior Advocate with MS VIDHI J BHATT,
ADVOCATE for the Opponent(s) No. 17 - 22
NOTICE NOT RECD BACK for the Opponent(s) No. 2
Page 1 of 26
C/WPPIL/233/2013 CAV JUDGMENT
NOTICE SERVED for the Opponent(s) No. 8 - 9 , 11
NOTICE SERVED BY DS for the Opponent(s) No. 5 , 7
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By this writ-application, in the nature of a public interest litigation, the petitioner, a municipal councilor of the Dhoraji Nagar Palika has brought to our notice that the private respondents have made unauthorized construction without any valid permission from the Dhoraji Municipality and also without sanction of any revised plans. According to the petitioner, the respondent no.6-Dhoraji Municipality, owes a legal duty to enforce the rules and regulations governing the building construction and also other provisions of law.
2. The case made out by the petitioner may be summed up thus:
2.1 The respondent no.5, Dhoraji Area Development Authority, is the authority for grant of permission for development within the limits of the Dhoraji town. The authority has to act in consonance with the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short "the Act of 1976"). The authority is obliged to ensure that the laws relating to the building and zoning are scrupulously followed by one and all. The revised development scheme of Dhoraji of the year 1989 is applicable in case of such developmental activities.
2.2 Although many illegal constructions have been made in the Dhoraji town, yet the respondent nos.5, 6 and 7 have failed to take Page 2 of 26 C/WPPIL/233/2013 CAV JUDGMENT any steps in accordance with law.
2.3 The respondent nos.12 to 16 are the owners of the Unique School of Science. Although permission was given to the respondent nos.12 to 16 to put up construction upto the first floor, yet without any permission or sanction of necessary plans have put up construction of the second and third floor.
2.4 The respondent nos.8 to 11 although were accorded permission to put up construction of ground plus three floors according to the sanctioned plan on plot no.166, Sheet No.107, City Survey No.1602, admeasuring 553.39 sq.mtrs. yet a fourth floor has been constructed without any valid permission or sanction of the plans.
2.5 One Shri Dineshbhai Gordhanbhai Topiya and his associates have constructed one unnamed building without any valid permission from the respondent no.6, Dhoraji Nagar Palika. Although the petitioner had brought to the notice of the respondent nos.6 and 7 regarding the same by filing an application dated 19th July 2013 and 30th August 2013 respectively under the Right to Information Act, yet till date no steps have been taken for demolition of the same.
2.6 In such circumstances, referred to above, the petitioner has prayed for the following reliefs:
"12. The petitioner prays that in the above premises, this Hon'ble Court may be pleased:
(a) to allow this petition and issue a writ of mandamus or any other appropriate writ, direction or order in the nature of writ, enjoining upon the concerned respondents to take swift and stringent action to put an end to any further construction not only in respect of such constructions, but also, enjoin upon the respondents not to permit any new unauthorized construction(s) forthwith and direct demolition of the Page 3 of 26 C/WPPIL/233/2013 CAV JUDGMENT constructions already made, as;
(b) to grant interim relief by enjoining upon the concerned respondents to take swift and stringent action to put an end to any further construction not only in respect of such constructions already made, but also, enjoin upon the respondents not to permit any new unauthorized construction(s), pending admission, hearing and final disposal of this petition;
(c) to direct expeditious disposal of the present petition;
and
(d) to grant such further and other reliefs, as may be deemed to be just and proper."
3. STANCE OF THE RESPONDENT NO.6-DHORAJI MUNICIPALITY:-
3.1 On behalf of the Dhoraji Municipality, an affidavit-in-reply has been filed duly affirmed by the In-charge Chief Officer, inter alia, making the following averments:
"4. I state and submit that respondent Nos.8 to 11 applied for permission to construct on City Survey No.1602, Sheet No.107 situated at Station Plot, Dhoraji. The Town Planning Committee by resolution No.14 dated 15.9.2012 approved the permission and permitted respondent Nos.8 to 11 to put up construction as per the plan. The rajachitthi for construction was issued on 29.11.2012 by the municipality on certain terms and conditions. Copy of rajachitthi No.009597 dated 29.11.2012 is annexed hereto and marked as Annexure-I to this affidavit-in-reply. Copy of the approved plan is annexed hereto and marked as Annexure-II to this affidavit-in-reply. In the aforesaid plan, permission was granted for construction upto ground + three floors.
5. I state and submit that respondent Nos.8 to 11 applied for permission to construct 4th floor also and accordingly revised plan was also submitted along with their application on 15.3.2013. Copy of the development application submitted by respondent Nos.8 to 11 is annexed hereto and marked as Annexure-III to this affidavit-in-reply.Page 4 of 26 C/WPPIL/233/2013 CAV JUDGMENT
6. I state and submit that at present the said application is pending before the Town Planning Committee for approval.
The municipality instructed respondent Nos.8 to 11 to remove certain defects which were found in their application. In pursuance of the same, respondent Nos.8 to 11 have complied with the aforesaid instruction and at present development application submitted by respondent Nos.8 to 11 is pending before the Town Planning Committee. At this stage, it is submitted that respondent Nos.8 to 11 have been instructed not to put up construction as per the revised application till the Town Planning Committee takes any decision.
7. I state and submit that respondent Nos.12 to 16 submitted the application with the municipality to regularize construction for the school/ education/ hostel/ residential purpose. The municipality granted permission to respondent Nos.12 to 16 and the plan is also approved on 27.6.2013. The said permission was granted for ground + first floor. Copy of the plan is annexed hereto and marked as Annexure-IV to this affidavit-in-reply.
8. I state and submit that respondent Nos.12 to 16 submitted the application for development to construct 2nd and 3rd floors on the said premises and accordingly, revised plan is submitted for approval. Copy of the application along with the Revised Plan is annexed hereto and marked as Annexure-IV- A.
9. I state and submit that respondent Nos.12 to 16 were instructed to remove defects and also instructed not to construct further without the decision of the Town Planning Committee. The respondent Nos.12 to 16 have removed the defects and at present, revised plan is pending before the Town Planning Committed for approval.
10. I state and submit that the petitioner has made grievance that respondent No.17 has put up illegal construction on City Survey No.1608 to 1611 situated at Station Plot, Dhoraji. I state and submit that I have verified the record of the municipality and it is found that respondent No.17 is not the owner of the said survey Nos.1608 to 1611. In fact, permission has been granted to one Dipakbhai Jaisukhlal and others by the Town Planning Committee in its resolution No.1 (23) dated 15.7.2013. In pursuance of the same, rajachitthi No.009619 dated 28.7.2013 has been issued in favour of Dipakbhai Jaisukhlal Bhadla. Copy of which is annexed hereto and marked as Annexure-V to this affidavit-in-reply. I state and submit Page 5 of 26 C/WPPIL/233/2013 CAV JUDGMENT that the owner of City Survey Nos.1608 to 1611 also submitted the plan for approval and that plan has been approved by the Town Planning Committee. The copy of which is annexed hereto and marked as Annexure-VI to this affidavit-in-reply.
11. At this stage, I state and submit that it appears that respondent No.17 has been impleaded inadvertently/wrongly by the petitioner as he is not the owner of the property for which the petitioner has ventilated his grievance.
12. I state and submit that the petitioner has moved one Civil Application No.12534 of 2013 in Writ Petition (PIL) No.233 of 2013 to implead one Manojbhai Rathod as respondent No.18. The Honourable Court has been pleased to allow the said civil application by joining Manojbhai Rathod as respondent No.18 in the present petition.
13. I state and submit that respondent No.18-Dineshbhai Gordhanbhai Topiya has applied for construction in City Survey Nos.1005, 1006 and 1007, Sheet No.95 situated at Bhakunbhajipara Station Plot, Dhoraji. They applied in the name of Rameshwar Developers. I state and submit that respondent No.17 is one of the partners in Rameshwar Developers. I state and submit that Town Planning Committee by resolution No.1(25) dated 5.1.2010 approved the plan and constructed the building in the names of Avantika-I and Avantika-II. The municipality gave rajachitthi No.009293 dated 30.1.2010 in pursuance of the resolution passed by the Town Planning Committee. Copy of rajachitthi No.009293 dated 30.1.2010 is annexed hereto and marked as Annexure-VII to this affidavit-in-reply. I state and submit that the Town Planning Committee has approved the plan submitted by respondent No.18. Copy of the approved plan is annexed hereto and marked as Annexure-VIII to this affidavit-in-reply."
4. STANCE OF THE RESPONDENT NOS.8 TO 11:-
4.1 On behalf of the respondent nos.8 to 11, an affidavit-in-reply has been filed duly affirmed by one Shri Mansukhbhai Valjibhai Patadiya, inter alia, making the following averments.
"1. ................ I say that as in fact the necessary amount was paid towards construction charges deposited and Raja chiti issued by Nagarpalika. Copy of the receipt is annexed herewith and marked Annexure-R1 to this reply. I say that the permission was granted in November 2012 by Nagarpalika by Page 6 of 26 C/WPPIL/233/2013 CAV JUDGMENT Raja Chithi No.009597. I say that the plan was put up before Nagarpalika on 29.11.2012 and accordingly the construction was made. I say that completion certificate was made on 27.6.2013. I say that thereafter further plan was put up for 4th floor as it was within the permissible limit and done by Nagarpalika. Copy of the plan is annexed herewith and marked Annexure-R2 to this reply.
2. I say that similar to the construction of the answering respondent, construction is granted where even permission for Ground plus 7th floor is granted namely Avantika Apartment, Akruti Apartment, Ankur Apartment, etc. where such permissions were granted immediately and before the commencement of the construction of the answering respondent. I therefore say that as in fact the purpose is otherwise to file petition. I say that as in fact the construction is completed and the plan is put up with the Nagarpalika. I say that as otherwise also under the Act even after submissions of the application and permission was sought since no reply was given for a considerable long period in fact deem permission can very well be considered as in surrounding plots similar such permission is granted. I say that as the enquiry is also made by answering respondent time and again with respect to likelihood of calling of meeting of Nagarpalika initially on account of the election and thereafter for one or other reason, the meeting is not called for. I say that as in fact the construction of the school of the answering respondent is absolutely within the permissible limit and as per the plan. I therefore humbly urge this Hon'ble Court to suitably direct Nagarpalika so as to complete the formalities.
3. I say that in fact it is the duty of the petitioner also to disclose about filing of criminal cases and as in fact it is talk of the town that purpose and object of filing of petition is otherwise.
4. I say that whenever enquiry was made with the Nagarpalika it was reported that since the entire quoram required to hold the meeting consisting of Chief Officer, Dy.Collector, Town Planning officer, President of Nagarpalika and Chairman, Construction Department. I say that since the quoram is not completed and therefore the meeting was not held as informed to the answering respondent by Nagarpalika."
5. STANCE OF THE RESPONDENT NOS.12 TO 16:-
Page 7 of 26 C/WPPIL/233/2013 CAV JUDGMENT5.1 On behalf of the respondent nos.12 to 16, an affidavit-in-reply has been filed duly affirmed by one Shri Devangbhai Bhagirathbhai Vyas, inter alia, stating as under:-
"1. .......... At the outset I say that the petitioner has not approached before this Hon'ble Court with clean hands and in fact has suppressed vital fact and on this ground alone the petition is liable to be dismissed. I say that as in fact the petitioner is involved in number of criminal activities and there are so many offences registered against him as the details made available from Dhoraji police station about 15 offences registered against the petitioner and all these aspects is suppressed before this Hon'ble court and sought for equitable relief. I say that as from the conduct of the petitioner it seems that reason is otherwise, the purpose is otherwise to file the petition under the Public Interest Litigation. I say that the answering respondent running educational institution in the name as Unique School of Science, Station Road, Dhoraji. I say that the school of the answering respondent has its own popularity in the surrounding villages, Talukas as well as in the District of Rajkot. I say that averment made in the petition particularly paragraph-4.1 against respondent No.12 to 16 and it was stated that the permission was granted for construction of one floor and thereafter further construction was made. I say that the averment is also made that the land of plot No.166, Sheet No.107, City Survey No.1602 admeasuring 553.39 sq.metres belonging to the original respondents No.8 to 11 where the permission for Ground Plus 3 Floors as per sanctioned plan and then it is alleged that one another floor has also been put up wherein unauthorized 4th floor above ground floor. I say that photograph on page 33 also attached to the main petition.
2. I say that as in fact absolutely false misleading statements was made about continuation of construction inasmuch as the photograph at page 33 was older one and as in fact the plan was put up to the Nagarpalika in the month of June, 2013 and even necessary amount of construction fees is also paid.
3. I say that as for one or other reason Nagarpalika has not called for the meeting where all such applications made by respective persons are pending for passing resolution. However for one or other reason the meeting was not called by Nagarpalika. I say that as otherwise also the construction of the petitioner is within the permissible limit and as per the plan submitted to the Nagarpalika. At this stage it may be noted Page 8 of 26 C/WPPIL/233/2013 CAV JUDGMENT here that just adjacent plot located in city survey No.1005, 1006/1007, sheet No.97 developed by Rameshwar Developers, a partnership firm through its partner Vinodrai Khodidas Antala whose construction permission was granted by Raja Chitti No.009293. Copy of Raja chiti is annexed herewith and marked Annexure-R1 to this reply. I say that in the said premise at present Dream International School exist - Ground plus 4 Floors. I say that the school of the answering respondent is in fact within the permissible limit. I say that as otherwise also under the Act even after submissions of the application and permission was sought since no reply was given for a considerable long period in fact deem permission can very well be considered as in surrounding plots similar such permission is granted. I say that as the enquiry is also made by answering respondent time and again with respect to likelihood of calling of meeting for one or other reason, the meeting is not called for. I say that as in fact the construction of the school of the answering respondent is absolutely within the permissible limit and as per the plan. I therefore humbly urge this Hon'ble Court to suitably direct Nagarpalika so as to complete the formalities.
4. I say that as in fact it is the duty of the petitioner also to disclose about filing of criminal cases and as in fact it is talk of the town that purpose and object of filing of petition is otherwise.
5. I say that whenever enquiry was made with the Nagarpalika it was reported that since the entire quoram required to hold the meeting consisting of Chief Officer, Dy. Collector, Town Planning officer, President of Nagarpalika and Chairman, Construction Department. I say that since the quoram is not completed and therefore the meeting was not held as informed to the answering respondent by Nagarpalika."
6. We have heard Mr.B.J.Trivedi and Mr.J.T.Trivedi, the learned advocates appearing for the petitioner, Mr.Ashish M.Dagli, the learned advocate appearing on behalf of the respondent nos.8 to 16, Mr.Shalin Mehta, the learned Senior Advocate assisted by Ms.Vidhi Bhatt, the learned advocate appearing on behalf of the respondent nos.17 to 22, Mr.Premal Joshi, the learned advocate appearing on behalf of the respondent no.6, Dhoraji Municipality.
7. Having heard the learned counsel appearing for the parties and Page 9 of 26 C/WPPIL/233/2013 CAV JUDGMENT having gone through the materials on record, the only question that falls for our consideration in this petition is whether the petitioner is entitled to any of the reliefs as prayed for in this petition.
8. Ordinarily, the court would allow litigation in public interest if it is found :-
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;Page 10 of 26 C/WPPIL/233/2013 CAV JUDGMENT
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
9. The picture that emerges from the materials on record is that on 8th February 2012, the respondent nos.8 to 11 applied before the Dhoraji Municipality for permission to construct a residential complex consisting of ground plus three floors on the City Survey No.1602 situated at Dhoraji. The Town Planning Committee of the Dhoraji Nagar Palika vide resolution no.14 dated 15th September 2012 accorded permission in favour of the respondent nos.8 to 11 to put up construction upto three floors i.e. ground plus three floors. It appears that thereafter the respondent nos.8 to 11 applied to the Dhoraji Nagar Palika on 15th March 2013 for permission to construct the Page 11 of 26 C/WPPIL/233/2013 CAV JUDGMENT fourth floor. The said application, as on today, seems to be pending with the Dhoraji Nagar Palika. However, before any decision could be taken or without any permission being accorded the respondent nos.8 to 11 have already completed the construction of the fourth floor. It necessarily implies that the construction of the fourth floor, as on today, is without any valid permission or sanction of the plans for the same. This position has not been disputed by Mr.Dagli, the learned advocate appearing on behalf of the respondent nos.8 to 11. The only argument of Mr.Dagli is that the necessary application for putting up construction of the fourth floor was submitted before the Dhoraji Nagar Palika but since there was no reply or any decision taken in that regard at the end of the Dhoraji Nagar Palika, his clients completed the construction construing it as a deemed permission. On the other hand, Mr.Joshi, the learned advocate appearing on behalf of the Dhoraji Nagar Palika invited our attention to the fact that on receipt of the necessary application from the respondent nos.8 to 11 seeking permission to put up the construction of the fourth floor, the Nagar Palika had asked the respondent nos.8 to 11 to take care of few defects which were noticed in their application and at the same time, the respondent nos.8 to 11 were also instructed not to put up any construction on the strength of the application till the Town Planning Committee would take any decision in the matter.
10. It appears that in spite of specific instructions from the Dhoraji Nagar Palika, the respondent nos.8 to 11 proceeded and completed the construction of the fourth floor without there being any sanction of the plans or valid permission.
11. We are not impressed by the submission of Mr.Dagli that his clients proceeded to complete the construction of the fourth floor on the premise that the permission was deemed to have been granted since the municipal authorities failed to take any decision within the stipulated period of time. In our opinion, the entire argument of Page 12 of 26 C/WPPIL/233/2013 CAV JUDGMENT Mr.Dagli based on the concept of "deemed permission" is misconceived for more than one reason. First, in the affidavit-in-reply filed on behalf of the respondent nos.8 to 11, there is nothing to even remotely indicate as to on which date the application seeking permission with the necessary plans for the construction of the fourth floor was before with Dhoraji Nagar Palika. Secondly, once the Nagar Palika asked the respondent nos.8 to 11 to rectify their application as some defects were noticed and assuming for the moment that such rectification was undertaken by the respondent nos.8 to 11 yet they were directed by the Nagar Palika not to proceed with the construction till appropriate decision was taken by the committee. In such circumstances, if the reliance is on Section 29 (4) of the Act of 1976 then we are afraid it could not be said that there was a deemed permission. There is one additional facet to this aspect of the matter. The deemed permission means that a person is erecting a building after the expiry of the statutory period within which the authorities are obliged to take appropriate decision on the application must be strictly in accordance with the rules, bylaws etc. The deemed permission can be said to have been attracted in case where a person has carried out construction in accordance with the existing rules, bylaws and building regulations and not otherwise. The municipal authorities have yet to take the decision whether it is permissible for the respondent nos.8 to 11 to put up the construction of the fourth floor on the building. In any view of the matter, it is not in dispute that in spite of the directions from the municipal authorities not to proceed with the construction the respondent nos.8 to 11 in flagrant disregard to such directions completed the construction of the fourth floor without any valid permission.
12. The Apex Court in the case of Calcutta Municipal Corporation v. Anil Ratan Banerjee reported in AIR 1995 SC 659 considered the submissions made by the learned counsel for the Municipal Corporation which is at paragraph 12. The relevant portion Page 13 of 26 C/WPPIL/233/2013 CAV JUDGMENT is reproduced as under:-
"Para 12. Shri Tapas Ray, learned counsel for the Municipal Corporation, urged the following contentions:
1. That the plan sanctioned on April 27, 1985 for a eight storeyed building lapsed on 26th April, 1987 since no construction was made and completed within two years.
Indeed, no construction was commenced by that date. It is true that on April 16, 1987, the respondents applied for renewal of the said plan but there was no provision in the Bengal Municipal Act for granting such renewal. Even assuming that such renewal could be granted and must be deemed to have been granted, such deemed renewal too expired on April 16, 1989 or, at any rate, on April 26, 1989. Admittedly, no construction was made, much less completed, by the said date. In other words, the sanction of the said plan, both actual and deemed, lapsed by 26th of April, 1987 and 26th April, 1989 respectively. No construction can be permitted on the basis of such plan after the said dates.
2. So far as the deemed sanction of the twelve-storeyed building applied for on August 24, 1987 is concerned, it cannot be deemed to have been sanctioned on the expiry of thirty days by virtue of Section 319 of the Bengal Municipal Act for the reason that no such permission could have been actually granted under the law then in force in the said area, having regard to the width of the road abutting the respondents' plot and other relevant circumstances. The Division Bench has itself recognized that the deemed permission cannot be inconsistent with the relevant rules and regulations. No deemed permission can be conceived of which is inconsistent with the relevant rules and regulations.
3. The position today is that the building rules framed in the year, 1990 (with effect from December 1, 1990) are more stringent than the pre-existing rules and regulations. According to these rules the maximum height of a building in the respondents' plot cannot exceed eight metres."
12.1 Before the Apex Court in the case of Calcutta Municipal Corporation (supra) the learned counsel relied on the observations made by the High Court "that apart construction has actually taken place on the basis of a plan that could have been sanctioned as the law prevailing at that time in that event nothing could have been Page 14 of 26 C/WPPIL/233/2013 CAV JUDGMENT done." The Apex Court pointed out that Section 319 of the Bengal Municipal Act, 1932 expressly states that even in case of a deemed permission the applicant cannot execute the work so as to contravene any of the provisions of this Act or of Schedule VI or any Rule or Bye-law applying thereto.
13. The Apex Court in the case of M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu reported in 1999 (6) SCC 464 has pointed out that the unauthorized construction should be demolished even though the builder has invested considerable amount. The Apex Court pointed as under in paragraph 73 (p. 529):
"This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorized. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorized construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles."
14. In Suresh Estates Private Limited and Others v. Municipal Corporation of Greater Mumbai and Others [(2007) 14 SCC 439], the Supreme Court had the occasion to consider the argument of deemed permission in connection with the provisions of Section 45 of the Maharashtra Regional and Town Planning Act, 1966 (37 of 1966). The Supreme Court while negativing the contention of the deemed permission made the following observations, which are worth taking note of.
Page 15 of 26 C/WPPIL/233/2013 CAV JUDGMENT"34. The contention of the appellants that in view of the provisions of sub-Section 5 of Section 45 of the M.R.T.P. Act, 1966, the application submitted by them for seeking permission to develop their plot should be deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application, cannot be upheld. The facts of the case would indicate that the matter of grant of permission was under
active consideration of different authorities. The question whether the appellants were entitled to additional FSI as claimed by them was considered and contested by the respondents. Further, the proviso to Section 45(5) of the M.R.T.P. Act, 1966 makes it clear that the deeming provision would apply only if the permission applied for is strictly in conformity with relevant DC Regulations. The competent authority had no occasion to consider whether the plans submitted by the appellants for development of their plot were in accordance with DC Rules, 1967.
35. On the facts and in the circumstances of the case this Court is of the opinion that the appellants are not entitled to a declaration that the permission applied for was deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application."
15. We may take note of the observations made by the Supreme Court in Dipak Kumar Mukherjee V/s. Kolkata Municipal Corporation and others (Civil Appeal No. 7356 of 2012 decided on 8th October 2012), His Lordship G.S. Singhvi, J. observed that in last four decades the menace of illegal and unauthorized constructions of buildings and other structures in different parts of the country had acquired monstrous proportion. His Lordship held that the Supreme Court had repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave direction for demolition of illegal constructions.
Page 16 of 26 C/WPPIL/233/2013 CAV JUDGMENT16. In K. Ramadas Sheony V/s. Chief Officers, Town Municipal Council, reported in (1974) 2 SCC 06, the Supreme Court held that the municipal authorities owed a duty and obligation under the statute to see that the residential area was not spoilt by unauthorized construction. The Court observed that the scheme was for the benefit of the residents of the locality and the municipality acted in aid of the scheme. The rights of the residents in the area were invaded by an illegal construction. The Court proceeded further to observe that it had to be remembered that a scheme in a residential area meant planned orderliness in accordance with the requirements of the residents. If the scheme was nullified by arbitrary acts in excess and derogation of the powers of the municipality, the courts would quash orders passed by the municipalities in such cases. The Court also proceeded further to observe that the Court enforces the performance of statutory duty by public bodies as obligation to rate payers who had a legal right to demand compliance by a local authority with its duty to observe statutory rights alone.
17. In Friends Colony Development Committee V/s. State of Orissa, reported in (2004) 8 SCC 733, the Supreme Court noted that large number of illegal and unauthorized constructions were being raised in the city of Cuttack and made the following significant observations:
"...Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design or unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face Page 17 of 26 C/WPPIL/233/2013 CAV JUDGMENT the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some constructions and non-compoundable deviations. The unwary purchasers who shall be the suffers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders.....
In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety morals or general welfare are ecological considerations, though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use of which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building Page 18 of 26 C/WPPIL/233/2013 CAV JUDGMENT regulations are also legitimized from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like pars and playgrounds and the availability of adequate water, sewerage and other governmental or utility services. Structural and lot area regulations authorize the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces, the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the large purpose of the public health, safety or general welfare So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building." (emphasis supplied)"
18. In Shanti Sports Club V/s. Union of India, reported in (2009)15 SCC 705, the Supreme Court approved the order of the Delhi High Court which had declared the construction of sports complex by the appellant on the land acquired for planned development of Delhi to be illegal and observed:-
"In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State of other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building Page 19 of 26 C/WPPIL/233/2013 CAV JUDGMENT plan of the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc; such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc, apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air -conditioned cars, are of the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc; on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism engaged in the municipal and other similar laws, as also the master plans, zonal development plans sanctioned plans, etc; have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas an issued directions for demolition of the illegal/unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions." (emphasis supplied) "
19. In Esha Ektqa Apartments Co-operative Housing Society Limited v. Municipal Corporation of Mumbai and Others (Civil Appeal No.7935 of 2012 decided on 27.2.2013), the Supreme Court Page 20 of 26 C/WPPIL/233/2013 CAV JUDGMENT while dealing with a matter of unauthorized construction, and the dubious roles played by the builders in duping innocent buyers, made the following observations, which are worth noting:-
"The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built-up area on each floor but also added and additional fifth floor on the building, and such a floor was totally unauthorized. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations ; though and unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may provide for regulations as to floor are, the number of floors, the extent of height rise and the nature of use to which a built up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, good dignity, protection and comfort and safety of the community. Not only filth, stench and Page 21 of 26 C/WPPIL/233/2013 CAV JUDGMENT unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimized from the point of view of the control or community development the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
Structural and lot area regulations authorize the municipal authorities to regulate and restrict the height, number of storeys and other structures, the percentage of a plot that may be occupied, the size of yards, courts and open spaces, the density of population, and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and conveniences being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of building.
Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and one with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Government should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of Page 22 of 26 C/WPPIL/233/2013 CAV JUDGMENT illegal constructions."
20. The observations made by the Supreme Court in Indian Council for Enviro-Legal Action Vs. Union of India, reported in (1996) 5 SCC 281 with regard to infringement of law, are worth noting.
"26. ...Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law- aiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that is is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the anti- population laws, namely the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations."
21. In Dr.G.N. Khajuria and ors. Vs. Delhi Development Authority and ors., reported in (1995) 5 SCC 762, the Supreme Court made the following observations, which are worth noting.
"10. .... The same is that a feeling is gathering ground that Page 23 of 26 C/WPPIL/233/2013 CAV JUDGMENT where unauthorized constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorized construction to be made or make illegal allotments go scotfree. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative , according to us, that while undoing the mischief which would require the demolition of the unauthorized construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."
22. The above takes us to consider the case of unauthorized construction put up by the respondent nos.12 to 16. From the materials on record, it appears that the respondent nos.12 to 16 initially constructed ground plus first floor without any permission from the Dhoraji Nagar Palika. After completing the construction of the ground plus first floor, they applied for regularization of such construction. It appears that the authority concerned granted permission and approved the plans on 27th June 2013. Thereafter, the respondent nos.12 to 16 applied on 20th July 2013 seeking permission to construct the second and third floors with a revised plan. The said application is pending before the Town Planning Committee of the Dhoraji Nagar Palika for approval as on today. However, the respondent nos.12 to 16 proceeded with the construction of the second and third floor without any valid permission. In such circumstances, the construction put up by the respondent nos.12 to 16 of the second and third floor has also to be termed as illegal and unauthorized.
23. It appears that so far as the respondent no.17 is concerned, he Page 24 of 26 C/WPPIL/233/2013 CAV JUDGMENT is not the owner of the unnamed building as alleged by the petitioner. The respondent nos.19 to 22 against whom allegations have been levelled by the petitioner had applied for the permission on 8th February 2012 to construct a building consisting of ground plus four floors on Survey Nos.1608 to 1611. The Town Planning Committee vide its resolution No.1 (23) dated 15th July 2013 approved the same. Pursuant to it, the Raja Chitthi No.009619 dated 20th July 2013 was issued and the plans were also approved. Thus, so far as the respondent nos.19 to 22 are concerned they are not guilty in any manner of putting up any illegal or unauthorized construction.
24. By way of Civil Application No.12534 of 2013, the petitioner impleaded the respondent no.18 as a party respondent. The respondent nos.17 and 18 had applied for the development permission on 1st October 2009 and approval of plan for ground floor plus seven floors in the name of Rameshwar Developers on City Survey No.1005, 1006 and 1007, Sheet No.95 in the name of Avantika-1 and Avantika-2. The Town Planning Committee vide resolution No.1 (25) dated 5th January 2010 approved the plan and pursuant to the same Raja Chitthi No.009293 dated 30th January 2010 was issued. Thus, so far as construction of Avantika-1 and Avantika-2 are concerned, there does not appear to be any illegality and the construction appears to have been carried out in accordance with the plans and the permission was accorded by the Nagar Palika.
25. Therefore, in light of the foregoing discussion, the fourth floor constructed by the respondent nos.8 to 11 on City Survey No.1602, Sheet No.107 and the construction put up by the respondent nos.12 to 16 of the second and third floor of the building by name, Unique Palace, should be ordered to be demolished.
26. For the foregoing discussion, we direct the respondent no.6, Dhoraji Nagar Palika, to proceed with the demolition of the fourth Page 25 of 26 C/WPPIL/233/2013 CAV JUDGMENT floor of the building constructed by the respondent nos.8 to 11 on City Survey No.1602, Sheet No.107, and the second and third floor constructed by the respondent nos.12 to 16 of Unique Palace. The Nagar Palika shall proceed with the demolition, as directed above, after a period of two weeks from today.
27. The petition succeeds to the aforesaid extent and is disposed of accordingly. No costs.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) *malek Page 26 of 26