Gujarat High Court
Jagatbhai Hasmukhlal Parikh vs State Of Gujarat on 18 March, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 141 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAGATBHAI HASMUKHLAL PARIKH
Versus
STATE OF GUJARAT
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Appearance:
MR. JIGAR G.GADHAVI, ADVOCATE for the Applicant(s) No. 1,2,3
for the Opponent(s) No. 1,4
MR. SP MAJMUDAR, ADVOCATE for the Opponent(s) No. 3
MR. HJ KARATHIYA, ADVOCATE for the Opponent(s) No. 3
NOTICE SERVED(4) for the Opponent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 18/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This writ-application has been filed in public interest seeking the following reliefs :
Page 1 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 "(A) To quash and set aside the order passed by the respondent no.4 dated 18.07.2019 being order No.TPS-
112019-1308-L (Annexure-N) and all the further and subsequent orders passed by the respondent authorities in favour of the respondent no.3 trust with regard to the construction on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in area Paldi of Ahmedabad in Town Planning Scheme No.6 pursuant to the order dated 18.07.2019 (Annexure-N).
(B) The Hon'ble court may be pleased to direct the respondent authorities to remove the construction put up on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in Town Planning Scheme No.6 in Paldi at Ahmedabad.
(C) Pending admission, hearing and final disposal of this petition, to direct the respondent no.3 - trust herein not to further proceed with the construction/erection or any other such associated activity on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in Town Planning Scheme No.6 in Paldi area at Ahmedabad and further direct the respondent Corporation - respondent no.2 to ensure that no further construction/erection or other such associated activity may continue on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in Town Planning Scheme No.6 in Paldi area at Ahmedabad.
Page 2 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 (D) To award the costs of this petition. (E) To pass such other and further reliefs in the interest of justice be granted."
2. The facts giving rise to this public interest litigation may be summarised as under :
3. The writ-applicants are residents of the Ahmedabad city. The controversy revolves around putting up construction of a 'Jain Derasar' in a residential society, namely 'Vasantkunj Cooperative Housing Society Limited" situated at Paldi, Ahmedabad.
4. The construction of the Jain Derasar is being made on the Final Plot No.489 (Tenement No.34) of the Society referred to above.
5. According to the writ-applicants, the said construction is contrary to and in violation of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as, the 'T.P. Act'), the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as, the 'BPMC Act') as well as the Gujarat Comprehensive Development Control Regulations, 2017 (hereinafter referred to as, the 'GCDCR, 2017').
6. It is pointed out by the writ-applicants that the construction of the Derasar is at the instance of the respondent Page 3 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 no.3. The respondent no.3 is a Trust registered under the Bombay Public Trusts Act, 1950. The plot in question came to be purchased by the Trust on 11th February 2003. The Trust made it clear from day one onwards that they had purchased the plot with an intention to construct a Derasar. The respondent no.3 - Trust started putting up the construction on the above referred residential plot without obtaining any valid permission from the respondent - Corporation.
7. The writ-applicant no.2 raised objections for the first time in the year 2005 by issuing a statutory notice. However, as no heed was paid and the Trust proceeded with the construction, a writ-application being the Special Civil Application No.23783 of 2005 came to be filed in this Court.
8. On 19th December 2005, this Court passed the following order in the Special Civil Application No.23783 of 2005 :
"Notice returnable on 28.12.2005.
The respondent No.1 to explain as to why so far no action is taken in the matter.
Further construction be stayed forthwith. It will be for the respondent No.1 - Corporation to see that further Construction is not allowed.
Direct service today itself is permitted."Page 4 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
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9. Thereafter, on 28th December 2005, the following order was passed :
"Shri K.D.Pandya states that in this case Shri Prashant Desai is appearing for the respondent - Corporation, who has filed Leave Note today. However, on instruction, he states that the Corporation has already taken action by issuing notice dated 29.11.2005 to the respondent No.2 to stop the further construction immediately and as per the order dated 19.12.2005, passed by this Court, further construction is stayed. Shri Sunit Shah has instruction to appear in this matter for Respondent No.2. Shri B.J.Shelat, Senior Advocate, appears with him. The respondent No.1 may file detailed Affidavit in this matter explaining the action taken in the matter so far by it.
Put up on 30.1.2006. Interim relief, granted earlier, to continue till further orders."
10. Thereafter, on 30th January 2006, the following order was passed :
"Heard learned counsel Mr.Barot for the petitioner. Mr.Barot submitted that the respondent-Corporation has filed an affidavit stating that the respondent No.2 sought permission for construction of residential building, but the respondent No.2 wants to construct Derasara. Learned Senior Advocate, Page 5 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Mr.Shelat appearing with Mr.Sunit Shah for respondent No.2 states that they want to construct Derasar and that they will not proceed further with the construction till they get necessary permission from the competent authority. Without expressing any opinion, at this stage, we are of the considered opinion that the matter requires consideration. Hence, Rule. Learned counsel Mr.Prashant Desai for respondent No.1-Corporation and Mr.Sunit Shah for respondent No.2 respectively waive service of rule.
Having regard to the facts and circumstances of the case, we are of the considered opinion that the ad-interim relief granted earlier is required to be confirmed. Accordingly, it is confirmed. It is made clear that there shall not be any further construction at the site without permission of this court."
11. Thereafter, the Special Civil Application No.23783 of 2005 came to be disposed of vide order dated 27 th April 2009. The order reads thus :
"1. By way of this petition, the petitioner has prayed for the following reliefs:
A) Be pleased to admit and allow this petition.
B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Page 6 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 respondent no. 1 to take appropriate action against the respondent no. 2 for carrying out the construction of Jail Temple on plot no. 34 of Vasantkunj Society, Paldi, Ahmedabad-7, which is contravention to the provisions of the BPMC Act as well as GDCR.
C) Pending admission, hearing and final disposal of this petition, be pleased to restrain the respondent no.
2 its servants, agents or any other persons for carrying out the construction of the Jain Templer on plot no. 34 of Vasantkunj Society, Paldi, Ahmedabad- 7, which is contravention to the provisions of the BPMC Act as well as GDCR.
2. We have Mr. SG Barot and Mr. JA Adesara learned advocates. It is made clear that respondent no. 2 will not construct any construction without the permission of the Ahmedabad Municipal Corporation.
3. In view of the above observation, this petition is disposed of accordingly. Liberty to apply in case of difficulty."
12. Thus, it appears that upon a statement being made the petition was disposed of with an understanding that the Trust would not put up any construction without obtaining valid permission from the Ahmedabad Municipal Corporation.
13. It appears that thereafter the Trust went before the Corporation saying that it wanted to put up a residential Page 7 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 structure and the plans be sanctioned accordingly. The Trust was granted permission by the Corporation for residential structure. The Trust, having obtained the permission from the Corporation to put up a residential structure, started with the construction of a Derasar. In such circumstances, once again a writ-application came to be filed in this Court being the Special Civil Application No.15711 of 2010. In the said writ-application, it was pointed out to this Court that although the permission was granted by the Corporation to put up a residential structure, yet the Trust, contrary to the plans, had started putting up construction of a Derasar.
14. It appears that the Trust also came to the High Court by filing the Special Civil Application No.16258 of 2010.
15. We may now look into few orders passed in the above referred two writ-applications.
16. We may start with the order dated 8 th December 2010 passed in the Special Civil Application No.15711 of 2010 with Special Civil Application No.15696 of 2010, which reads thus :
"Heard learned Advocate Mr.Amit M.Panchal with learned Advocate Mr.D.K.Puj for the petitioners.
2. Learned Advocate for the petitioners invited attention of the Court to Annexure-E, page No.46, an order passed by the Division Bench of this Court dated 30.01.2006. He then invited attention of the Court to Annexure-E, page No.44, an Page 8 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 order passed by the another Division Bench of this Court dated 27.04.2009.
2.1 Learned Advocate for the petitioner then invited attention of the Court to the permission granted by the Corporation on 20.07.2010, a copy of which is produced at Annexure-F, page No.48.
3. Learned Advocate for the petitioners makes a statement that though the permission is granted for putting up construction for residential unit, respondent No.2 is constructing, 'Derasar'. Learned Advocate for the petitioner submitted that this is in violation of the condition on which permission (Raja-chitthi) is granted.
3.1 Learned Advocate for the petitioners produced photographs showing the construction as on 06.12.2010. The same are taken on record.
4. NOTICE returnable on 10.12.2010. Direct service permitted today."
17. The order dated 27th December 2010 passed in the Special Civil Application No.15711 of 2010 reads thus :
"1.0 The petitioners are before this Court praying:
"8(B). Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, directing the Page 9 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Respondent No.1 to take appropriate action against the Respondent No.2 for carrying out the construction of Jain Temple on Plot No.34 of Vasantkunj Society, Paldi, Ahmedabad-7, which is in contravention to the provisions of the BPMC Act as well as GDCR and the Order passed by this Hon'ble Court in Special Civil Application No.23783/2010."
2.0 The matter was ordered to be heard with Special Civil Application No.15696 of 2010.
3.0 Taking into consideration the controversy involved in the matter and taking into consideration the contents of affidavit-in-reply filed on behalf of respondent no.2 - Trust and taking into consideration the statement made by learned advocate Mr.Chhaya, on instructions from the Officer present in the Court, and taking into consideration the fact that the Deputy Estate Officer (West Zone) has already issued Notice on 12th November 2010 to Shri Jashubhai Manubhai Shah, Trustee of Ratnayatri Aradhana Bhavan Trust, no further action is required to be taken. However, to see that, in future, no further litigation is created, the Trustee - Shri Jashubhai Manubhai Shah is directed to file an Undertaking to this Court that they will follow the required procedure and will see that the construction is supervised by the Officer of the Corporation from time to time. The Undertaking shall be filed on or before 10th January 2011.
Page 10 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 3.1 Learned Senior Advocate Mr.BB Naik with Mr.Unwala, learned advocate for the respondent no.2-Trust submitted that the Trust is carrying on the construction only according to the permission granted by the Municipal Corporation, a copy of which is produced at Page 49 to this petition.
3.2 Even than, the aforesaid direction is issued as it is an innocuous one. The Undertaking shall be filed as directed. The Officer of the Corporation is directed to be more vigilant so that, unnecessarily, it does not give rise to conflict between the rival groups.
4.0 With these directions, the petition is disposed of."
18. Thereafter, the Special Civil Application No.15696 of 2010 with Special Civil Application No.16258 of 2010 came to be decided and disposed of by this Court vide order dated 27 th December 2010. The same reads thus :
"1. Special Civil Application No.15696 of 2010 is filed by two petitioners, as stated in the cause title, they are residents of Vasantkunj Society, Sukhipura, Paldi, Ahmedabad. Petitioner No.1 is residing in Bungalow No.27 and petitioner No.2 is residing in Bungalow No.37. The relief prayed for by them is as under:-
"8(B) Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, directing Page 11 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 respondent No.1 (Ahmedabad Municipal corporation) to take appropriate action against the Respondent No.2 (Ratnayatri Aradhana Bhavan Trust) for using the Sub-Plot No.42 Vasantkunj Society, Paldi, Ahmedabad as "Aaradhana Bhavan" without seeking any permission from the competent authority and for constructing Jain Temple over the Sub-Plot No.46 Vasantkunj Society, Paldi, Ahmedabad without seeking any permission or getting any Plan sanctioned from the Respondent No.1." (emphasis supplied) An order was passed in this petition on 8.10.2010. After that order was passed, the Ahmedabad Municipal Corporation (hereinafter referred to as 'the Corporation' for short) issued notices under Section 478 of the Bombay Provincial Municipal Corporation Act, 1949 ('BPMC Act' for short) on 13.12.2010 and also under Section 260(1).
1.1. Notice issued on 13.12.2010, under Section 478 of the BPMC Act is challenged by filing Special Civil Application No.16258 of 2010. Thus, the subject matter is interconnected/interrelated in both these matters.
1.2. So far as Special Civil Application No.15696 of 2010 is concerned, the Corporation has started taking action in the matter. Learned advocate Mr. Chhaya, on instructions, states that the Corporation will continue to take action in accordance with law. Special Civil Application No.15696 of 2010 is disposed of. Notice is discharged.
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2. Coming to Special Civil Application No.16258 of 2010, respondent No.2 of Special Civil Application No.15696 of 2010 is the petitioner and the relief sought for in this petition is as under:-
"15.b This Hon'ble Court will be pleased to issue writ of or in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned communication dated 13.12.2010 issued by the respondent-Corporation."
2.1. Learned senior advocate Mr. Kavina while attacking the notice dated 13.12.2010 issued under Section 478 of the BPMC Act submitted that though it is branded as a 'notice', it is an 'order' because it says that, 'breach of Regulation 6(1) of Chapter XII of the BPMC Act be done away with, within 7 days, i.e. by stopping the unauthorized use, or else, the Corporation will have to stop that unauthorized use departmentally and that will be at the cost and risk of the addressee of the notice and expenses will be recovered from the addressee.
2.2. The learned senior advocate for the petitioner (Special Civil Application No.16258 of 2010) submitted that this amounts to adjudicating the matter without granting an opportunity of hearing to the affected person.
2.3. Learned advocate Mr. Chhaya appearing for the Corporation, invited attention of the Court to Section 478 of Page 13 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 the BPMC Act. The learned advocate for the Corporation submitted that it is true that the notice is issued in the form of an order, but as the law is well settled, and the principles of natural justice are to be read into the provision, the learned advocate for the Corporation submitted that Corporation is ready to give hearing to the petitioner (of Special Civil Application No.16258 of 2010).
3. Learned senior advocate for the petitioner (Special Civil Application No.16258 of 2010) submitted that in the understanding of the petitioner, the use of the building as 'Aradhana Bhavan' is noway illegal and therefore, if the petitioner is driven to the authority to explain or reply to the notice in question (under Section 478 of the BPMC Act dated 13.12.2010), it is going to be a futile exercise. The learned senior advocate therefore requested that if deemed fit, the Court may decide as to whether by using the building as 'Aradhana Bhavan', the petitioner has committed any breach of Regulation 6(1) of Chapter XII of the BPMC Act.
4. Learned advocate for Corporation invited attention of the Court to the General Development Control Regulations ('GDCR' for short) and specifically referred to Definitions Clause, which defines 'Building, wherein Clause 2.9 pertains to 'Assembly building', which reads as under:
"(a) "Assembly building" means a building or part thereof where groups of people congregate or gather for amusement, recreation, social, religious, patriotic, civil travel and similar purposes.Page 14 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 "Assembly building" include buildings of drama and cinema theatres, city halls, town halls, auditoria, exhibition halls, museums, "marriage hall", "skating rings", gymnasia, stadia, restaurants, eating or boarding houses, place of worship, dance halls, clubs, gymkhanas, road, air, sea or other public transportation stations and recreation piers. (emphasis supplied) 4.1. As against that, Clause (n) defines 'Residential Building', which reads as under:-
"(n) "Residential Building" means a building in which sleeping accommodation is provided for normal residential purposes, with or without cooking or dining facilities, and includes one or more family dwellings, lodging or boarding houses, hostels, dormitories, apartment houses, flats and private garages of such buildings." (emphasis supplied)
5. Learned advocate for the Corporation also invited attention of the Court to Regulation 12.1, which pertains to 'Uses Not permissible'. Regulation 12.1 reads as under:-
Road Width Uses not permissible
a) 18 mts. & above. All educational institutions up to
SSCE level,
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b) 12mts. and less than (1) High rise buildings, Cinema 18 mts. Hall, meeting/ community/ lecture / town hall, auditorium, petrol pump, Head and Regional/public establishment, starred hotels, college, technical institution, general hospital, polyclinic.
(2) Provided in the case of draft T.P. Scheme area submitted to the Govt. for sanction, up to the date of publication of the revised draft development plan under section - 13 of the Act, high rise building shall be permitted on 12 mts. and above roads.
c) 9 mts. and less than 12 (1) All uses mentioned in (b) mts. above and building with more than 13 mt. Height. (Excluding hollow plinth)
d) less than 9 mts. All uses mentioned in (C) above and building with more than 10 mts. Height. Apartments/Flat type building. (Excluding hollow plinth) It will be appropriate to note that GDCR provides that, 'all educational institutions up to SSCE level' should be on road having width of 18 meters and above. Similarly, all cinema halls, meeting/community/lecture/town hall, auditorium, petrol pump, Head and Regional/public/establishments, starred hotels, colleges, technical institution, general Page 16 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 hospital polytechnic are provided on the road having width of more than 12 meters and less than 18 meters. Now, so far as 'Assembly building' is concerned, it is not specifically provided under this Regulation.
6. Learned advocate for the Corporation next invited attention of the Court to Regulation No.19, which provides for 'Parking space'. Regulation No.19.1 provides for 'Minimum parking space', which reads as under :-
"Off-street parking spaces for vehicles shall be provided for every new building constructed for the first use or when the use of old building is changed to any of the uses mentioned in the table below:-
Sr. Type of Use Parking Remarks
Space
No
Required
1 Residential 15% of (1) Dwelling units
(Flats/ maximum Above 80 Sq.Mts. Built
Apartments) permissible up area 50% of the
F.S.I. total parking space
requirement shall be
reserved for cars.
(2) Upto 80 Sq.Mts.
Built up area 25% of
the total parking
space requirements
shall be reserved for
Cars.
(3) 10% of the total
parking space
requirements shall be
reserved for visitors at
ground level.
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2 -- -- --
3 -- -- --
4 -- -- --
5 Community 50% of 50% of the total
buildings such as Building parking space
community hall/ Unit. requirements shall be
marriage hall/ reserved for Cars.
community wadi/
recreational club/
and religious
building, party
plot, club house
etc.
In this table, providing for parking space, 'residential' is separately put under item No.(1), whereas 'community buildings', such as community hall/ marriage hall/ community wadi/ recreational club/and religions building, party plot, club house etc. are placed under item No.(5).
6.1. From the aforesaid table, it is clear that the 'residential buildings' and 'community buildings' are treated separately and this Court is able to see the logic behind the same. The 'residential building' will not be attracting crowd, but at the same time, 'community buildings', may be for any purposes, like community hall, marriage hall, recreational club or religious building, attract crowd and therefore, parking space is provided to be 15% of maximum permissible F.S.I. in 'residential buildings, whereas in the matter of 'community buildings' it is 50% of Building unit. It is at this juncture that two uses of a building make a difference.Page 18 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 6.2. It is in light of this difference, the petitioner of Special Civil Application No.16258 of 2010 is supposed to explain to the Corporation authorities about the breach of the concerned Regulation. If the building was constructed as a 'residential building', it cannot be used as a 'religious building'.
7. Learned senior advocate for the petitioner of Special Civil Application No.16258 of 2010 raised an issue that, 'residential use of a building and religious use of a building is almost interchangeable and there cannot be vertical dividing line between two uses'. Prima facie, the submission of the learned senior advocate is attractive and may be accepted. But, when the question comes to follow the GDCR, the framers of GDCR have taken care of and have very distinctly kept two buildings separate. 'Residential building' is a building which is not by its nature attracting crowd, except on very few occasions, like marriage in family, any other small gathering, but 'religious building' by its nature is going to have regular activities which will be attracting crowd and therefore, the framers of the GDCR have distinctly placed them in two different entries in the matter of providing for parking space. This distinction will be material at the time of applying to the Corporation for permission by stating that the use of a building, at the relevant time, if a particular building is to be used as 'religious building' and the permission is sought, the corporation will consider the application accordingly and can legitimately deny the permission if the width of the road on which the proposed building is going to abut is not as Page 19 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 provided in the concerned regulation. Similarly, the permission may not be granted if required parking area is not available.
8. It is made clear that in a building which is granted permission as a 'residential building', all activities including religious activities can be carried, but there is a difference between using a building as a 'religious building'. From the material placed on record, it appears that, till the time, the building is used as 'residential building' for Sadhu Bhagwants and Sadhvi Bhagwants, there cannot be any breach of any regulation. But if is used as 'religious building' and if it attracts crowd on regular basis, the petitioner of Special Civil Application No.16258 of 2010, will be responsible for breach of concerned regulation and as stated in the notice issued by the Corporation, will have to see that the building is used only as a 'residential building' and not as a 'religious building'.
9. Last but not the least, the learned advocate for the Corporation also invited attention of the Court to Regulation No.4.2.2, entry No.(g), which reads as under:-
"(g) for assembly use, for cinemas, theatres, places of public worship, residential hotels, lodging and boarding houses, unless the site has been previously approved by the Competent Authority and the Commissioner of Police."Page 20 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Unless the prior approval from competent authority and the police Commissioner is obtained, construction of 'religious building' could not have been put up.
9.1. The aforesaid discussion makes it clear that the building which is constructed by obtaining the permission for a 'residential building', cannot be used as a 'religious building' unless requirements provided are satisfied and permission is sought for from the competent authority of the Corporation in this regard.
10. With the aforesaid observations, the petition, being Special Civil Application No.16258 of 2010, is dismissed.
10.1. As the period prescribed in the notice under Section 478 of the BPMC Act dated 13.12.2010 has expired, the Corporation may issue fresh notice under Section 478 of the BPMC Act as early as possible but not later than 3rd January 2011.
11. The petitioner of Special Civil Application No.16258 of 2010 is granted time to reply to the notice upto 10th January 2011. The Corporation is directed to decide the question of breach of concerned regulation or unauthorized use of a 'residential building' as 'religious building' after considering the reply of the petitioner. If required, it will be open for the Corporation to issue fresh notice/ order under Section 478 of the BPMC Act within four weeks from the date of communication of the order aforesaid.
Page 21 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 11.1. It goes without saying that till then, the petitioner will see that the building is not used as 'religious building'.
To be referred to the Reporters."
19. Thus, it is apparent from the above referred order of this Court dated 27th December 2010 that the Special Civil Application No.16258 of 2010 filed by the Trust came to be rejected, whereas, in the Special Civil Application No.15696 of 2010 filed by one of the writ-applicants herein, the Court observed that the building which was being constructed on the strength of the permission for a "residential building" could not have been used as a "religious building", unless the requirements provided were satisfied and necessary permission was sought for from the competent authority of the Corporation in that regard.
20. It appears that thereafter as the Ahmedabad Municipal Corporation declined to grant the permission dehors the GCDCR, 2017, somehow the Trust persuaded the State Government by addressing a representation to the Chief Minister of the State to grant the necessary permission to put up the construction of a Jain Derasar. In other words, the State Government, as a special case, exercised its powers under Section 29(1)(ii) of the T.P. Act and asked the Corporation to sanction the plans and accord the necessary permission to put up a religious structure on a final plot situated in a residential locality.
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21. In such circumstances referred to above, the writ- applicants are here before this Court with the present writ- application in public interest.
SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANTS :
22. Mr.Jigar Gadhvi, the learned counsel appearing for the writ-applicants, vehemently submitted that the case on hand is one of undue favour being shown to a charitable trust who intends to put up a Jain Derasar contrary to the CGDCR, 2017. He would submit that against all odds, the State Government has gone to the extent of relaxing the CGDCR, 2017, for the Trust. According to Mr.Gadhvi, the same is nothing but gross abuse of the powers conferred to the State Government by virtue of Section 29 of the T.P. Act.
23. Mr.Gadhvi would submit that how can there be a Jain Derasar in a residential society, and that too, exempting the Trust from providing parking and permitting the Trust to increase the height of the building contrary to the CGDCR, 2017. Mr.Gadhvi clarified that although his clients are not the residents of the said residential society, yet as they reside in the adjoining societies and as public spirited citizens, they have thought fit to come before this Court and point out the highhanded action on the part of the Trust in collusion with the State Government.
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24. In such circumstances referred to above, Mr.Gadhvi prays that there being merit in his writ-application, the same be allowed and the Trust be restrained from constructing the Jain Derasar.
SUBMISSIONS ON BEHALF OF THE AHMEDABAD MUNICIPAL CORPORATION :
25. Mr.Satyam Chhaya, the learned counsel appearing for the Corporation, submitted that from day one the Corporation had made itself very clear to the Trust that it is not permissible to sanction the plans and accord the necessary permission to put up a Jain Derasar. However, it is the State Government, in exercise of its powers under Section 29 of the T.P. Act, who directed the Corporation to grant the necessary permission, and it is in such circumstances that the permission was ultimately granted. Mr.Chhaya, in the aforesaid context, invited the attention of this Court to the averments made in paragraph 11 of the reply filed by the Deputy Estate, Town Planning Development, West Zone, on behalf of the Corporation. We quote the relevant observations thus :
"4. It is submitted that as per the record of the answering corporation, the plots in question i.e. Final Plot No.489, Town Planning Scheme No.6 (Paldi) admeasuring 800.16 sq.mtrs. is of the ownership and occupation of respondent No.3 Trust as per the 7/12 abstracts. The respondent No.3 Trust also owning Final Plot No.501 in the same town planning scheme admeasuring 766 sq.mtrs. The above-referred two plots are subject matter of order passed by the State Government Page 24 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 dated 18.7.2019 and, therefore, the deponent has confined the facts only qua these two final plots in the present affidavit. As per the record, earlier the respondent No.3 Trust had filed application for Development Permission with respect to Final Plot No.489 for construction of residential purpose/bungalow. The said plans were sanctioned by the answering corporation on 20.7.2010. Copy of the said commencement letter dated 20.7.2010 is produced by the petitioners at Annexure-B. The record further reveals that the respondent No.3 - Trust had filed application for revision of the plan. However, earlier as per the commencement letter dated 20.7.2010, the proposed built up area was 955.12 sq.mtrs. as can be seen from Page-57 of petition compilation, whereas as per the revised plan submitted by the respondent No.3 - Trust, the proposed construction was to the tune of 479.55 sq.mtrs. The said revised plans were sanctioned by answering respondent on 9.11.2012. Copy of commencement letter (Raja Chitthi) issued on 9.11.2012 in view of first revised plan submitted by the respondent No.3 - Trust is annexed hereto and marked as Annexure-R-I to this reply. It is submitted that on 5.6.2017, even Building Use Permission was granted by the Ahmedabad Municipal Corporation as respondent No.3 Trust had completed construction pursuant to the above-referred commencement letter (Raja Chitthi) dated 9.11.2012. Copy of BU Permission dated 5.6.2017 is annexed hereto and marked as Annexure- R-II to the reply.
5. It is submitted that in 2017, the then prevailing GDCR were revised in view of enactment of CDGCR. It is submitted Page 25 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 that on 7.3.2019, the respondent No.3 Trust had filed an application which was inward with the concerned department of the corporation on 11.4.2019. Said application was for addition and alteration of the existing building. The respondent No.3 Trust had also filed application in prescribed form. Copies of application dated 7.3.2019 along with prescribed form submitted by the respondent No.3 Trust is annexed hereto and marked as Annexure-III Collectively to the reply. Bare perusal of above- referred application dated 7.3.2019, it would reveal that the respondent No.3 - Trust had prayed for alteration and addition of the existing structure as well as change of use and filed the application for the purpose of increasing the height of peak of religious structure (Shikhar) upto 15.70 mtrs. It was also requested by way of above-referred application for alteration and addition to convert the proposed use for religious purpose from the residential purpose.
6. It is submitted that as per the prevailing CDGCR, as per Part-II of the Regulations more particularly Table No.7.3.1 (Sr.No.4), religious classification/use is permissible within the residential zone-1 (R-1). The area in question is falling within the Zone R-1. Therefore, proposed construction or use as religious was permissible as per prevailing CDGCR, more particularly Table 7.3.1. Copy of Table 7.3.1 of Part-II is annexed hereto and marked as Annexure-R-IV to the reply.
7. It is submitted that as per Table 7.6.1 which is titled Page 26 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 as 'Use Control as per Road Width', the proposed religious construction was permissible as per prevailing CDGCR. Copy of Table 7.6.1 is annexed hereto and marked as Annexure-R-V to the reply. In the present case, the land in question i.e. Plot No.489 is abutting to 6 mtrs. road and, therefore, as per Clause at Sr.No.1 in above-referred 7.6.1 religious construction is permissible.
8. Further, as per Table 8.3.1 which is titled as 'Building Heights with respect to Road Width'. Therefore, if the abutting road is less than 9 mtrs., maximum height upto 10 mtrs. would be permissible under the prevailing CDGCR. Now, in the facts of the case, above-referred application dated 7.3.2019 is for proposed alteration and addition upto height of 15.70 mtrs. and, therefore, as per above-referred Table 8.3.1, it was not permissible as per prevailing CDOGCR. Further, as per Table 8.12.1 which is styled as 'Parking Requirement', the proposed religious building in question would fall within the criteria to have 40% of parking as the building unit was of more than 800 sq.mtrs. The said criteria was also not fulfilled in view of above- referred application dated 7.3.2019. Copies of Table no. 8.3.1 and 8.12.1 are annexed hereto and marked as Annexure-R-VI colly to the reply. Thus, considering the prevailing CDGCR, the above-referred application dated 7.3.2019 was rejected by the answering corporation on 11.4.2019. Copy of communication/order dated 11.4.2019 (out-warded on 12.4.2019) is annexed hereto and marked as Annexure R-VII to the reply.Page 27 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
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9. It is submitted that provisions contained in Section 29 of the Act of 1976, the State Government is empowered to grant any permission subject to any general or special order made by the State Government in this behalf. It is to be noted here that as per the provisions of the scheme of the Act of 1976, Section 12 envisages contents of draft development plan. Section 12(2)(m) provides that while framing the draft development plan, the concerned authority shall provide provision for controlling and regulating the use and development of land within the development area.
10. It is submitted that Section 116-A empowers the State Government for variation in the matters contained in Clause
(m) of sub-section 2 of Section 12. Thus, as per the provisions contained in Section 116-A, the State Government is empowered to modify and/or vary the regulation framed under Section 12(2)(m) of the Act of 1976. The prevailing (prevailing in the fact of the case) modified CDGCR got it sanctioned under Section 116-A of the Act of 1976 in view of Notification dated 12.10.2017. Copy of relevant abstract of Notification dated 12.10.2017 is annexed hereto and marked as Annexure-R-VIII to the reply. It is to be noted here that as at the relevant point of time, when the case of respondent No.3 Trust was considered, the above-referred CDGCR notified on 12.10.2017 were in force and therefore the details and corresponding clauses of the said CGDCR are referred to and relied upon by the deponent.
11. Thus, conjoint reading of Section 12(2)(m), Section 116A of the Act 1976, clearly suggest that the prevailing Page 28 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 CDGCR are part of development plan. Section 29 of the Act of 1976 empowers the State Government to grant permission subject to general or special order which may be made by the State Government. Thus, as per the scheme of the Act, the State Government is empowered to give relaxation, considering the facts and circumstances of the particular case and can relax the provision of applicable GDCR. As stated above, the fact clearly suggests that vide order dated 18.7.2019, the State Government had considered the case in hand and relax certain criteria of the CGDCR with respect to permissible height of the proposed building and also relax the requirement of parking and it has ordered that while considering the plans of Final Plot No.489, parking can be considered at Final Plot No.501. Copy of the order dated 18.7.2019 is produced by the petitioner at Annexure-N. In view of above-referred order passed by the State Government, the answering corporation had considered the provision of applicable CGDCR as well as above-referred order of relaxation dated 18.7.2019 in the facts of the case and as the owner of both Final Plot Nos.489 and 501 were same, the plans for alteration and addition were sanctioned by the answering corporation by issuing commencement letter (Raja Chitthi) dated 21.8.2019. Thus, the answering corporation has not committed any error and/or illegality and the commencement letter (Raja Chitthi) dated 21.8.2019 is absolutely in tune with the provisions of law and the same is in tune with the order dated 18.7.2019. It is to be noted here that in many other cases, the Government used to exercise the powers under Section 29 and grant permission and/or relax the condition, considering the facts Page 29 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 and circumstances of the present case. The above-referred fact would suggest that earlier, in view of prevailing provisions of CGDCR, the application of respondent No.3 Trust was discarded by the answering corporation in view of above-referred order/communication dated 11.4.2019.
However, after the order dated 18.7.2019 passed by the State Government, the case of respondent No.3 Trust was duly considered and commencement letter (Raja Chitthi) was rightly granted by the answering corporation. Copy of commencement letter dated 21.08.2019 is annexed hereto and marked as Annexure-R-IX to the reply."
26. In such circumstances referred to above, Mr.Chhaya prays that the Corporation is not at fault but as the necessary permission came to be granted by the State Government, it had no other option but to sanction the plans and grant the necessary permission.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.4:
27. Mr.Manisha Lavkumar Shah, the learned Government Pleader appearing for the State respondents, has vehemently opposed the present writ-application mainly on the ground that the writ-applicants are in no manner concerned with the construction, which is sought to be put up on the plot in question. According to Ms.Shah, they are not even the residents of the said residential society. According to Ms.Shah, it is not even a society. It is a separate independent plot in the area upon Page 30 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 which the Jain Derasar is being constructed. Ms.Shah invited the attention of this Court to few relevant submissions made in the affidavit-in-reply filed on behalf of the respondent no.4 - Senior Town Planner in the Town Planning and Evaluation Department, Gandhinagar. We quote the relevant observations thus :
"5. In this regard before making any submissions on the merits of the present Public Interest Litigation, the respondent authorities crave leave of this Hon'ble Court to raise a preliminary objection with regard to maintainability of the Public Interest Litigation. It appears that the petitioners are also residents of the same locality wherein the impugned construction of the temple complex has been carried out. Moreover, if the residential address of the Petitioner No. 2 is being looked at, it would be crystal clear that the Petitioner No. 2 is residing within the local limits of Vasantkunj Co.Operative Housing Society wherein impugned construction appears to have been carried out by the Respondent No. 3 Trust. Therefore, the petitioner has a private interest in the outcome of the present Public Interest Litigation. However, the said private interest has been given the color of public interest and therefore on this ground alone, the present Public Interest Litigation deserves to be rejected.
6. Without prejudice to whatever has been stated hereinabove, it is further submitted before this Hon'ble Court that the Respondent No. 3 Trust had approached the State Government for grant of permission for construction of a Page 31 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Religious Building on Final Plot No. 489 of Town Planning Scheme No. 6 (Paldi) situated at Moje: Paldi, Anmedabad on 16/03/2019. The said application dated 16/03/2019 was responded by the State Government vide communication dated 05/04/2019. In the said communication the State Government had informed the Respondent No. 3 Trust to prefer an appropriate application before the Ahmedabad Municipal Corporation. It appears that thereafter the Respondent No. 3 Trust preferred an application before the Ahmedabad Municipal Corporation on 11/04/2019. The said application appears to have been rejected on the same day. Thereafter on 18/06/2019 the Respondent No. 3 Trust again preferred an application before the State Government. In the said application dated 18/06/2019 Respondent No. 3 Trust had requested the State Government to grant the permission for construction of Religious Building on Final Plot No. 489 of Town Planning Scheme No. 6 by treating the application as a special case. Thereafter on 19/06/2019 the Officer on Special Duty of Hon'ble Chief Minister addressed a communication to the Urban Development and Urban Housing Department for consideration of the application preferred by Respondent No.3 Trust. Thereafter, the Chief Town Planner, State of Gujarat addressed a communication to the Officer on the Special Duty of Urban Development and Urban Housing Department wherein it was opined that application for relaxation in CGDCR made by Respondent No.3 Trust is not permissible as per CGDCR-2017 and further opined that the permission may be granted to the Respondent No.3 Trust by the competent Authority as a special case by exercising the powers as conferred upon the Page 32 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 State Government under clause (ii) of sub section (1) of section 29 of the Gujarat Town Planning and Urban Development Act, 1976.
7. It is further submitted before this Hon'ble Court that pursuant to the application preferred by Respondent No.3 Trust, the file has been moved to the competent Authority of the State Government. In the facts of the present case the Respondent No. 3 Trust has been granted relaxation in provision of CGDCR for construction of Religious Building as a special case in exercise of powers as conferred under clause (ii) of sub section (1) of section 29 of the Gujarat Town Planning and Urban Development Act, 1976. For the sake of convenience of this Hon'ble Court the said Section 29 has been reproduced hereunder:
"29. Grant or refusal of permission.-- (1) On receipt of an application under Section 27 or Section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge [and scrutiny fees], if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing--
(i) grant the permission with or without any condition;
or
(ii) grant the permission, subject to any general or Page 33 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 special orders made by the State Government in this behalf; or
(iii) refuse to grant the permission.
(2) Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal.
(3) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.
(4) If the appropriate authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.
(5) If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of Section 27 or Section 28 or of any permission granted under sub-section (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any use and may, after making an inquiry in the Page 34 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use.
(6) Any expenses incurred by the appropriate authority under subsection (5) shall be a sum due to the appropriate authority under this Act from the person in default."
8. In this regard it is further submitted before this Hon'ble Court that if the said section is perused, it will be clear that on receipt of an application the Appropriate Authority can grant permission; subject to any general or special orders made by the State Government in this behalf. In the facts of the present case as already submitted hereinabove, the file was put up for relaxation in provision of CGDCR before competent authority of the State Government. Provision of the CGDCR-2017 are relaxed by order dated 18/07/2019 to Respondent No.3 Trust for construction of Religious Building.
9. In light of above it is clear that the entire procedure that is required to be adopted for grant of permission under clause (ii) of sub section (1) of section 29 of the Gujarat Town Planning and Urban Development Act, 1976 has been followed by the respondent authorities. It is also clear that the said permission has been granted by the respondent authorities to the Respondent No.3 Trust in exercise of Page 35 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 powers as conferred under clause (ii) of sub section (1) of section 29 of the Gujarat Town Planning and Urban Development Act, 1976. Therefore, the present Public Interest Litigation is nothing but an abuse of process of law as it appears that the petitioners have some hidden agenda for avoiding construction of Religious Building. Therefore, the present Public Interest Litigation is without any basis and hence the same deserves to be rejected."
28. The sum and substance of the argument of the learned Government Pleader is that the State Government is competent to accord the necessary permission in exercise of its powers under Section 29 of the T.P. Act and has accordingly thought fit to accord the permission. Ms.Shah would submit that there being no merit in the present writ-application and as there is no public interest involved, the same be rejected.
SUBMISSIONS ON BEHALF OF THE TRUST :
29. Mr.S.P.Majmudar, the learned counsel appearing for the Trust, has vehemently opposed the present writ-application. According to Mr.Majmudar, the present writ-application is nothing but an abuse of the process of law. He would submit that the construction of Jain Derasar is not going to create any inconvenience to the people at large. He would submit that this Court may not interfere with the executive decision of the State Government to grant the necessary permission for putting up the construction of Jain Derasar.
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30. Mr.Majmudar vehemently submitted that the "right of worship" is a fundamental right guaranteed under Articles 21 and 25 of the Constitution of India. He would submit that the Trust is the owner of the Final Plot Nos.489 and 501 for being part of the Town Planning Scheme No.6 of Paldi, Ahmedabad.
31. According to Mr.Majmudar, his client went before the State Government seeking the special permission for religious purpose for the following :
"1. Height of Building : In the 6 Mt. width road, the permissible height is 10 Mt. as per the present GDCR. The answering respondent herein requested to grant permission for additional construction of 5.70 Mt., which is required for the purpose of construction of 'Sikhar of Temple'. It was further pointed out that said 'Sikhar' is just vertical elevation extension and there is no habitual use of said additional construction and therefore, the answering respondent herein requested that it may be granted permission for height of (8.70+7) = 15 Mt.
2. Parking : The answering respondent herein also sought permission to the effect that it may be permitted to reserve parking space in the F.P. No.501, which is also owned by the answering respondent herein and also said plot is only 36 Mt. away from F.P. 489, where the construction of 'Jain Derasar' is put up."
32. According to Mr.Majmudar, his client preferred representation to the Chief Minister of the State and the said Page 37 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 representation was ultimately processed and the necessary permission was granted to put up the Jain Derasar. Mr.Majmudar would submit that the writ-applicants, in the name of public interest, cannot infringe the fundamental right of the Trust and the followers of the sect to worship.
33. In such circumstances referred to above, Mr.Majmudar prays that there being no merit in the writ-application, the same be rejected.
ANALYSIS :
34. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the State Government was justified in according permission to construct a Derasar relaxing the GCDCR, 2017, as a special case in exercise of its powers under Section 29(1)(ii) of the T.P. Act.
WHY THE RESPONDENT NO.3 - TRUST HAD TO GO BEFORE THE AHMEDABAD MUNICIPAL CORPORATION FOR THE PURPOSE OF GETTING THE PLANS SANCTIONED AND THE NECESSARY PERMISSION TO PUT UP THE CONSTRUCTION ON THE FINAL PLOT OF A TOWN PLANNING SCHEME ?
35. Chapter XV of the Gujarat Provincial Municipal Corporations Act, 1949, is relevant for the purpose of answering the above referred question. Chapter XV of the Act, 1949, is with respect to the building regulations. Section 253 provides for notice to be given to the Commissioner of the intention to erect a Page 38 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 building. Section 254 provides for notice to be given to the Commissioner of the intention to make additions etc. to a building. Section 255 provides for plans etc. submitted to be rejected if not drawn etc. in the prescribed manner. Section 256 provides for the effect of non-compliance with the requisition made by the Commissioner. Section 257 is with respect to the supervision of buildings and works. Section 258 confers power to the Commissioner to cancel the permission on the ground of material misrepresentation by the applicant. Section 259 provides for the inspection of building in the course of erection, alteration, etc. Section 260 is with respect to the proceedings to be taken in respect of building or work commenced contrary to the rules or bye-laws. Section 262 provides for the enforcement of provision concerning buildings and works. Section 263 provides for the completion certificates permission to occupy or use.
36. In order to consider, whether sanctioning of plan and permission to construct is to be given under the B.P.M.C. Act or the Town Planning Act, it would be appropriate to have a brief scan through the provisions of the Gujarat Town Planning and Urban Development Act.
37. Section 26 provides that on or after the date on which a draft development plan is published in the Official Gazette under Section 13 in respect of any development area, no person shall carry on any development in any building or in or over any land, within the limits of the said area without the permission in writing of the appropriate authority and without obtaining Page 39 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 certificate from the appropriate authority to the effect that the development charge and scrutiny fees as leviable under the Act has been paid or that no such charge and scrutiny fees is leviable.
38. Section 27 envisages an application for permission to appropriate authority by any person intending to carry out any development in any building or over any land within the limits of development area other than being a Central Government or State Government.
39. Section 29 deals with grant or refusal of permission by appropriate authority on such application.
40. Section 32 provides that permission granted or deemed to have been granted under Section 29 to remain in force for a period of one year from the date of such grant and shall lapse thereafter provided appropriate authority on an application being made in this behalf may extend from time to time the period for such construction, not exceeding three years in aggregate.
41. Section 35 makes any construction made without a permission or construction which is not in accordance with such permission or is in contravention of any condition subject to which such permission has been granted is an offence punishable with fine which may extend to five thousand rupees.
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42. Section 36 empowers, apart from imposition of fine on conviction, the appropriate authority in case a development work has been carried out without permission, to restore the land or building to its condition existing before the said development took place; or in case the development undertaken or carried out is not in accordance with permission granted or is in contravention of such conditions of such permission, as the case may be.
43. Section 117. Effect of other laws: Notwithstanding anything contained in any other law for the time-being in force-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.
44. From the aforesaid provisions, it is clear that so far as the lands which fall within the scheme published under Section 13 Page 41 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 of the T.P. Act, its development is governed by the provisions of the Act. The norms of development, the sanctions required to be granted all are to be under the Town Planning Act. No other authority can, once a land falls in the limit of the development scheme, which exercised jurisdiction over such land before its coverage under the scheme, continue to be authority to grant any lawful authority for construction over that area. That is clear purport of Section 117. If the permission has been granted under the Act, the fact that permission required under other laws has not been granted or obtained will not render the construction in accordance with the permission granted under the Act to be unlawful. Simultaneously, it is also declared that if permission which is required to be obtained under the Act is missing, no amount of authorisation by authorities competent to grant such permission under other laws will render the construction to be under lawful authority. This envisages, atleast to the extent of sanctioning the development of the area concerned, other authorities having jurisdiction in respect of that area prior to its coverage under the scheme under the Act.
45. The 'appropriate authority' has been defined under the T.P. Act as an Area Development Authority (A.D.A.) constituted under Section 5 of the Act or the Urban Development Authority (U.D.A.) constituted under Section 22. The Area Development Authority or the Urban Development Authority by itself is a separate juristic entity different from the Municipal Corporation. In ordinary course, a permission granted by a Corporation in exercise of its own authority would not cure the defect of lack of permission under the Act. The State Government has authorised delegation of power of the respective Area Development Authority Page 42 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 or Urban Development Authority in respect of controlling the developmental activities in accordance with the development plan in the development area, to the Municipal Corporation to the extent any part of land falls also within the local limits of the concerned Municipal authority. The area in question is such area which is situated within the Municipal limits of the Ahmedabad and is also declared as the Urban Development Area for the development of which the Ahmedabad Urban Development Authority (A.U.D.A.) has been constituted under Section 22 of the T.P. Act. Thus, the Municipal Corporation is not only exercising power conferred on it under the B.P.M.C. Act on its own within the local limits of its jurisdiction but is also exercising the power of the Urban Development Authority as delegated to it in respect of the lands covered under the scheme published under Section 13 of the T.P. Act but falling within the local limits of its jurisdiction. Whether, the permission was required under the Town Planning Act or under the B.P.M.C. Act, the Trust had to approach the Corporation. In the present case, the Corporation had to deal with such application depending upon the nature of the area in respect of which such permission was sought. If the area fell under the town development scheme, the Corporation had jurisdiction to deal with that area only as a delegate of the Urban Development Authority and its sanction notwithstanding flowing from the Corporation will be a sanction under the Town Planning Act. On the other hand, if the plot in respect of which such permission was sought fell outside the development area it would be under the provision of B.P.M.C. Act.
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46. Indisputably, the final plot in question fell within the limits of the development plan published under Section 13 read with Section 22 of the T.P. Act and the permission of its development was required to be from the A.U.D.A. and to be considered in accordance with the provisions of the Town Planning Act and the CGDCR, 2017.
47. The Gujarat Town Planning and Urban Development Act, 1976, is a special Act in the field of carrying out planned development of the area covered under the Act. Section 3 of the Act states that for the purpose of securing planned development of the areas within the State, the State Government, by notification, may declare that any area in the State be a development area. In order to attain this objective, the Act envisages constitution of an Area Development Authority under Section 5 of the Act. Section 6 provides that in a given case, the State Government may, instead of constituting an Area Development Authority for a development area, designate any local authority functioning in the development area or part thereof as the Area Development Authority for that development area. Once an area has been declared as a development area and the Area Development Authority has been constituted, it becomes the obligation of the Area Development Authority to prepare and submit to State Government for its sanction a draft development plan for whole or part of the development area in respect of which it exercises authority. While these are general provisions under Section 22 where the State Government is of the opinion that the object of proper development of area or development of any urban area or group of urban areas together with such adjacent areas as may be considered necessary, Page 44 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 whether already covered under a development area declared under Section 3 or not, will be best served by entrusting the work of development or redevelopment thereof to a special authority, it may constitute an Urban Development Authority for that area and on constitution of such Urban Development Authority all the powers and functions of an Area Development Authority relating to the development or redevelopment of a 'development area' under the Act shall in relation to such Urban Development Area be exercised and performed by such Urban Development Authority and not by any other authority. Section 22, therefore, in express terms excludes exercise by any authority other than the Urban Development Authority in respect of the Urban Development Area, of all powers and functions relating to the development or redevelopment of the area under its jurisdiction.
48. Any construction activity within the development area so declared under Section 3 or Section 22 is a work of development and all powers relating thereto, viz., construction, its supervision and control are to be exercised by the authority constituted under Section 22 of the Act and not by a local authority. In this connection it may also be relevant to refer to Section 23 which delineates the powers and functions of the Urban Development Authority. Under Clause (iv) of Sub-section (1) the function has been assigned to Urban Development Authority to guide and assist the local authority or authorities and other statutory authorities functioning in the Urban Development Area in matters pertaining to the planning, development and use of urban land, and it empowers the Urban Development Authority to control the development activities in accordance with the Page 45 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 development plan in the Urban Development Area, and Clause
(x) empowers the Urban Development Authority to exercise such other powers and perform such other functions as are supplemental, incidental or consequential to any of the foregoing powers and functions or as may be directed by the State Government. From the reading of the various provisions, it is further abundantly clear that the erection of buildings within the development area or material change in any existing building or land, or in the house of any building or land, are activities pertaining to development of the particular area and the power to control such activities and to keep such activities within the limits of the development plan is power relating to development or redevelopment of development area vested in the Urban Development Authority. Under Section 25 of the Act of the provisions of the Act relating to preparation, publication, sanction, variation and revision of development plan and all other matters connected from and or incidental thereto and the powers and duties of an Area Development Authority relating all to the development or redevelopment of a development area applies to an Urban Development Authority as a whole. While Sections 26, 27, 28, 29 and 30 directly relate to control the sanctioning of new development activity within the development area, Sections 33, 35, 36, 37 and 38 are all incidental powers. In the context of the present controversy, it may be seen that under Section 35, any carrying out of development without the permission as required under Section 27 or which is not in accordance with any permission granted or is in contravention of the permission, is an offence which is punishable with a fine extending to Rs. 5,000/-. Section 36 empowers the Urban Development Authority where a development work has been Page 46 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 undertaken or carried out without the permission as required under Section 27 to restore the land or building to its condition existing before the said development took place and in case where such development work undertaken or carried out is not in accordance with the permission granted or is in contravention of the terms of permission that has been granted, the authority has power to secure compliance with the condition or with the permission as modified, as the case may be and to discontinue such use of building, land or work; where the authority requires the discontinuance of use of land or building, it is required to serve a notice on the occupier. This is to point out that the power to sanction development within the area and incidental power to deal with appropriately under the provisions of the Act, where any development work within the area has come in existence in contravention of the provisions of the Act or the sanction plan vest in the Urban Development Authority and to that extent, the local authority or any other authority otherwise having power to deal with such cases shall have to give way to the exercise of such power by the U.D.A. in view of clearer provisions of Section
22. This is also apparent from the provisions under Section 117, which, as noticed above, makes the sanction or permission for development within the area under its limits granted by 'appropriate authority' under the Act as supreme and paramount and only authority capable of conferring lawful authority for development work within the area and negates the suggestion of vesting of such power in any other authority notwithstanding such authority emanating from other sources and want of any other permission required under any other law does not affect it. Be that as it may, that is the extent and purport of exclusion of jurisdiction of local authority in the matter of exercise of power Page 47 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 relating to development or redevelopment within the area over which the Urban Development Authority exercises its jurisdiction.
49. Thus, it appears that having regard to the aforesaid, the Trust first approached the Ahmedabad Municipal Corporation with the necessary plans and prayed for the necessary permission to undertake the construction. As the Corporation found the plans not in accordance with the CGDCR, 2017, the Corporation declined to sanction the plans and grant the necessary permission to put up the construction of Derasar.
50. In such circumstances referred to above, the Trust had no other option but to knock the doors of the State Government invoking the provisions under the T.P. Act, more particularly, Section 29(1)(ii) of the T.P. Act.
51. The Trust preferred the following representation addressed to the Hon'ble the Chief Minister of the State of Gujarat :
To, The Hon'ble Shri Vijaybhai Rupani Saheb Chief Minister, State of Gujarat, Shwarnim Sankul-1, New Sachivalaya, Gandhinagar.
Subject : Regarding sanctioning the plan for the religious purpose on the Final Plot No.489 of the Town Planning Scheme No.6, Mouje Paldi.
Reference: Case No.BLNTB/WZ/2004/O/P/A7909/R1/M1 Page 48 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Respected Sir, On the captioned subject, it is respectfully submitted that :
1. We have sought B.U.Permission for the residential use on the basis of the Case Number under reference.
2. We have attached herewith the plans for carrying out the addition and alteration in the above stated building, wherein there is a need for necessary alteration for the construction of the peak of the Derasar.
3. Not Legible Height of Building : Not Legible We request you for grant of additional height of 5.70 meter only for the purpose of constructing the peak of the Derasar.
The purpose for demanding the additional height is only for religious sculpture, which is based on the architectural as well as the religious belief that the shadow of the 'dhaja' should not fall on the surrounding buildings.
Parking : The parking of the Derasar situated in the above stated plot has been shown in the Final Plot No.501 owned by us, situated next to the plot, wherein the construction of 'Upashray' of this Derasar is underway and the distance between the two plots is only 36 meters.
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4. We hereby produce the Certificate of Structural Safety as per the GDCR norms.
5. We have obtained the required Fire Safety and Police N.O.C. as per the GDCR norms.
6. We have also attached herewith the No objection letter regarding construction of the above mentioned Derasar from the residents of the nearby vicinity.
As per the prevalent GDCR, the height of the chimney for the industrial purpose and the height of the lift-room & cabin for the residential purpose is also permissible. In the same manner, ignoring the height of the peak ('shikhar'), the same may be allowed for the religious purpose.
The above mentioned Derasar is partially located in the residential area habitated by Jain community. As per the religious belief, the devotees and saints go for worship with bare feet. Therefore, it is necessary to have a Derasar near the residential locality."
52. We must now look into the order passed by the State Government in exercise of its powers under Section 29(1)(ii) of the T.P. Act, which reads thus :
"GOVERNMENT OF GUJARAT URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT ORDER NO.TPS-112019-1308-L SACHIVALAYA, GANDHINAGAR.
Page 50 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 ORDER Dated 18 JUL 2019 THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT, 1976
No.TPS-112019-1308-L: In exercise of the powers conferred under sub-clause(ii) of sub-section (1) of Section 29 of the Gujarat Town Planning and Urban Development Act, 1976 (President's Act No. XXVII of 1976) (hereinafter referred to as "the said Act") the Government of Gujarat hereby directs that the Ahmedabad Municipal Corporation may grant permission under clause (ii) of sub-section (1) of the said Section 29 of the said Act in accordance with the provisions contained hereunder and also subject to the condition that the Appropriate Authority shall also obtain written undertaking from the applicant before granting permission that no compensation shall be claimed by the applicant in case the permission is cancelled or amended under section 33 of the said Act.
WHEREAS, Shri Ratntrayi Aradhana Bhavan trust had applied on dated 16.03.2019, under clause (ii) of sub-section (1) of the said Section 29 of the said Act, had for the proposed development for Religious building on the Final Plot No.489 of Town Planning Scheme No.6(Paldi) (hereinafter referred as "proposed development") and Ahmedabad Municipal Corporation made a proposal vide letter dated 16.04.2019, No.100.Page 51 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 AND NOW THEREFORE, in respect of the representation for the proposed development, the provisions of the CGDCR are relaxed, as under in the following matters:
1. The height of building shall be allowed up to 15.70 mtr.
including 7.0 mtr. Height of temple peak.
2. The required parking as per CGDCR for temple in final plot No.489 shall be allowed in vicinity land of Final Plot No.501.
3. The proposed development may be granted by AMC subject to the following conditions.
a. AMC shall verify the ownership of the Final Plot No.489 and Final Plot No.501 and the required parking of both Final Plot shall be provided in final plot no. 501 before giving the development permission in Final Plot No. 489 and Final Plot No 501.
b. The Other provisions of the CGDCR except above serial No.1 and 2 shall be a followed.
c. The entire responsibility of structure shall be borne by the owner and structural engineer.
d. Fire safety shall be ensured as per the present enforce provisions. However any provision prescribed in future shall have to be followed.
Page 52 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 e. For the purpose of structural safety, provision made under the Government order No.NRY-142013- 5116-L, dated 11.12.2014 shall be followed.
f. For the Purpose of Security CCTV Cameras, Public Address System and the Control Room have to be provided.
By order and in the name of the Governor of Gujarat.
(V.D. Vaghela) Officer on Special Duty & Ex-Officio Joint Secretary to the Government of Gujarat Urban Development and Urban Housing Department"
53. It is evident from the above that the height of the building has been permitted to be raised upto 15.70 meters including 7.0 meters height of the temple peak. The required parking as per the CGDCR, 2017, also came to be compromised and the Government permitted the parking to be on the land somewhere near the vicinity of the plot in question.
54. It is not in dispute that the CGDCR, 2017, otherwise does not permit the Trust to put up such construction. This is made abundantly clear by both, the Corporation as well as the State Government, in their respective replies.
55. In fact, it could be said that the State Government has ignored all the orders passed by this High Court over a period of Page 53 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 time in various litigations relating to the present subject matter. This Court, in its order dated 27th December 2010 passed in the Special Civil Application No.15696 of 2010, in no uncertain terms had observed that the building which is constructed by obtaining the permission for a "residential building" cannot be used as a "religious building" unless the requirements provided were satisfied and permission was obtained from the competent authority. This order passed by the High Court left the Trust with no other choice but to go before the State Government by preferring a representation addressed to the Chief Minister of the State. We fail to understand what is so special that the Government thought fit to consider it as a special case, and against all odds and by relaxing and giving a go-by to the CGDCR, 2017, accorded permission to put up a Derasar. We shall deal with this issue a little later.
Is the "right to worship" a fundamental right ?
56. It was vociferously argued on behalf of the Trust that the Trust has a "right to worship", and such right is a fundamental right as enshrined under the Constitution of India.
57. We are afraid, the Trust as well as the State Government seem to be labouring under a serious misconception of law that the "right to worship" is a fundamental right. The "right to worship" is a civil right. The Supreme Court, in the case of Ugamsingh and Mishrimal vs. Kesrimal and others, reported in (1970) 3 SCC 831, has observed in para 16 of the judgment as under :Page 54 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 "It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature..."
58. The right to offer 'worship' at a particular place remains - at the very least - a civil right, enforceable by a suit. This was the stated position in Das Gupta J.'s judgment in Sardar Saifuddin vs. State of Bombay, reported in AIR 1962 SC 853. According to the learned Judge, in construing the provisions of the Bombay excommunications legislation, 'a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit'.
59. Thus, the Trust, in our opinion, could not have gone before the State Government saying that the necessary permission may be granted relaxing the CGDCR, 2017, as a special case in the name of "right to worship". At the same time, we are of the view that there was no good reason for the State Government to treat it as a special case and relax the mandatory regulations of the CGDCR, 2017. It is not forthcoming as to on what basis the State Government treated this to be a special case and went to the extent of relaxing the regulations of the CGDCR, 2017. It permitted the Trust to increase the height of the building. It permitted the Trust to increase the height of the peak of the temple. It went to the extent of even permitting the Trust to have parking facilities on a plot somewhere near the vicinity of the society.
60. We shall now try to look into the position of law having regard to the specific stance of all the respondents that as the Page 55 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 CGDCR, 2017, forms part of Section 12(2)(m) of the T.P. Act and Section 116A empowers the State to undertake variations in the matters contained in clause (m) of sub-section (2) of Section 12 of the T.P. Act, the permission has been accorded.
61. The T.P. Act is an Act to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. The reasons for the enactment as disclosed in the Government Gazette, Extraordinary, Part-IV dated 21st June 1976 at Page-170 reads thus :
"The Bombay Town Planning Act, 1954, as in force in the State of Gujarat controls town planning activities only within the areas falling within the jurisdiction of local authorities. Planning within the peripheral limits of cities and towns has created certain problems. It is felt that if planning activities are undertaken on a more rational and scientific basis with reference to development of areas which are not necessarily restricted to the areas within the jurisdiction of local authorities, it will be possible to create better environmental conditions. It is therefore considered necessary to replace the aforesaid Act by a more comprehensive legislation. This measure seeks to achieve the above object.
2. Provision has been made in this measure for the constitution of area development authorities for all the development areas declared under its provisions with an enabling power to the State Government to specify local authorities as the planning authorities in certain areas.Page 56 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Power has also been given to the State Government to declare urban development areas and to constitute urban development authorities for such areas. Provision has also been made for the preparation and making of development plans and town planning schemes by the area development authorities and urban development authorities and for implementing the development plans and town planning schemes.
3. The Consultative Committee constituted under the proviso to sub-section (2) of Section 3 of the Gujarat State Legislature (Delegation of Powers) Act, 1976 (44 of 1976) has been consulted before the enactment of this measure as a President's Act."
62. Thus, the Town Planning Act came to be enacted for planned development of different areas in the State. Under Section 3 of the Act, the State Government may declare any area in the State to be a development area. It shall then constitute an authority for such area as required under Section 5 to be called as 'Area Development Authority' to carry out the functions assigned to it under the Act. Instead of constituting such separate Area Development Authority, the State Government can declare any local authority functioning in the development area as Area Development Authority. However, if the State Government is of the opinion that the object of proper development or redevelopment of any urban area or group of urban areas in the State with such adjacent areas as considered necessary, whether covered under the development area already declared under Section 3 or not, will be best served by entrusting Page 57 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 the work of development or redevelopment thereof to special authority instead of Area Development Authority, it may declare such area as urban development area and constitute an authority for such area to be called as Urban Development Authority of that area under Section 22(1) of the Act. Thereupon all the powers and functions of the Area Development Authority in relation to such area shall be exercised by such Urban Development Authority.
63. As could be seen from the GDCR, the Urban Development Area notified by the State Government under Section 22(1) of the Act includes the area of Ahmedabad Municipal Corporation and Ahmedabad Urban Development Authority (AUDA) is constituted as Urban Development Authority relating to such area. As per Section 23 of the Act, the Urban Development Authority is to prepare development plan and to control the development activities in accordance with the development plan and is required to exercise other functions as stated therein. As per sub-section (2) of thereof, the Urban Development Authority can delegate with approval of the State Government any of its powers and functions to the local authority or authorities within its jurisdiction. To carry out the purposes of the development plan, the Urban Development Authority may make regulations making provisions for controlling and regulating the use and development of the land within the development area as contemplated in Clause (m) of sub-section (2) of Section 12 of the Act.
64. The AUDA has made Comprehensive Development Plan- 2021 (Second Revised) which includes the Ahmedabad Municipal Page 58 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Corporation area. It has made the CGDCR, 2017, in exercise of the powers under Section 12(m) read with Section 13 of the T.P. Act.
65. Some of the regulations from the CGDCR, 2017, may be looked into. Regulation 2 is for definitions. From them, the definitions given in Regulations Nos.2.19, 2.22, 2.25, 2.71, 2.78, 2.95, 2.99, 2.117 read as under:
"2.19. 'Building' - A Building means all types of permanent building, but structure of temporary nature like tents, hutment as well as shamianas erected for temporary purposes or ceremonial occasions, shall not be considered to be "buildings".
2.22. 'Building-unit' means a land or plot or part of a land/plot or combination of more than one land/plot as proved by the Competent Authority. However, where an alignment has been fixed on any road by any Competent Authority, the Building - unit shall mean and refer to the land excluding the portion falling in alignment.
2.25. 'Unit Built-up Area' means the areas covered by a building on all floors including the cantilevered portions, if any, including walls and columns, but except the areas specifically excluded under these Regulations.
2.71. 'Gamtal' means all land that has been included by the Government/Collector within the site of village, town or city Page 59 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 on or before the date of declaration of intention to make a Town Planning Scheme or publication of Draft Development Plan - 2021. Such land shall not include any other land which may subsequently be included within the site of any village by the Government/Collector under the provision of Land Revenue Code.
2.78. 'Ground Coverage' means the ground area covered by a building including, cantilevered portion on any floor, excluding cut-out (open-to-sky) if any.
2.95. 'Local Area Plan' means a plan prepared for a specific area or a zone by the competent authority. The Local Area Plan (LAP) may identify measures for plot utilization, fire protection, accessibility, street design, pedestrianisation, transportation network, infrastructure, parking management, green network including parks and open spaces, etc. The regulations identified in the Local Area Plan shall prevail over the base zone regulations.
2.99. 'Margin' means the space adjacent to boundary of Building-unit, buildings or common plot that should be kept fully open-to-sky. No built-up area shall be permitted in marginal space except specifically permitted under these Regulations.
2.117. 'Open Space' means an area forming an integral part of the plot, left permanently open sky."
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66. Regulation 3 which falls under the heading 'Procedure Regulations' provides for the matters concerning development permission and building use permission. Regulation 3.3, 3.4, 3.8, 3.8.1, 3.8.2, and 3.8.3 read as under:-
"3.3. "Grant of a Development Permission" Grant of a Development Permission by the Competent Authority shall mean an acceptance by the Competent Authority that the development requirements of the proposed building, for which Development Permission has been granted, conforms to these Development Regulations, and that the person holding the Development Permission may undertake proposed development or construction of the proposed building within the limits of the Development Area in conformity with the Development Plan Proposals. It does not constitute acceptance of correctness, confirmation, approval or endorsement of: (a) Title, ownership, and easement rights of the Building unit ‐ for which the building is proposed; (b) for which the building is proposed; (b) Variation in area from recorded areas of a Building unit; ‐ for which the building is proposed; (b) (c) Location and boundary of Building unit; ‐ for which the building is proposed; (b) (d) Workmanship, soundness of material and structural safety of the proposed building; (e) Structural reports and structural drawings and shall not bind or render the Competent Authority liable in any way in regard to (a), (b), (c) (d) and (e) above.
3.3.1. "Liability" Notwithstanding any Development Permission granted under the Act and these Regulations, any person undertaking any development work shall continue to be wholly and solely liable for any injury or damage or loss whatsoever that may be caused to anyone Page 61 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 in or around the area during such construction and no liability whatsoever in this regard shall be cast on the Competent Authority or any officer/employee to whom power has been delegated.
3.4. "Development Requirements" Development Requirements of the following aspects shall be mandatory and may be examined by the Competent Authority for ensuring compliance of the development to these Regulations: 1. Permissible Ground Coverage 2. Permissible Floor Space Index 3. Permissible Height and the various floors 4. Permissible Open Spaces enforced under these Regulations ‐ for which the building is proposed; (b) Common Plot, Marginal Open 5. Spaces, Setbacks and other open spaces. 6. Permissible Uses of Land and Buildings 7. Arrangements of stairs, lifts, corridors and parking 8. Minimum requirement of sanitary facility 9. Minimum Common Facility 10. Required light and ventilation 11. Minimum requirement of Fire Prevention and Safety, and Clearance from Chief Fire Officer as applicable. 3.8. Procedures for Obtaining, Revising and Revalidating a Development Permission 3.8.1. Obtaining a Development Permission On receipt of a duly completed application for Development Permission, the Competent Authority shall scrutinize the application in detail before grant of Development Permission, to verify whether the design and specifications of the proposed building comply with these Regulations. The procedure for obtaining a Development Permission is specified in Regulation No. 5.1.Page 62 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 3.8.2. Revising a Development Permission Changes or revisions in the sanctioned design and specification of a building may be made if a Revised Development Permission is obtained before construction is undertaken on the portion of the building that deviates from the Sanctioned Design Requirements. Revision of Development Permission shall be mandatory in the following conditions: 1. Change in Ownership 2. Increase in utilised FSI 3. Reduction in Parking area 4. Change in Orientation of the Building 5. Change in size or location of the Common Plot 6. Change in use of Building or part thereof For any of the above mentioned changes in a building during the course of construction, the owner should apply for a Revised Development Permission for the Building‐ for which the building is proposed; (b)unit or part of Building‐ for which the building is proposed; (b)unit as the case may be. The modified Development Requirements may be examined by the Competent Authority for ensuring compliance of the building to these Development Regulations. No deviations in contravention of the provisions of the act, and/or these regulations shall be permitted. Procedures for obtaining a Revised Development Permission are specified in Regulation No. 5.2.
3.8.3. Revalidating a Development Permission A Development Permission may be revalidated provided procedural requirements for revalidating a Development Permission are met with. A Development Permission that may lapse due to non‐ for which the building is proposed; (b) commencement of work, may be revalidated for a period of one year. The revalidated period shall in no case exceed three years in the aggregate that is Page 63 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 for a total period of four years. The period of validity shall begin from the date of commencement certificate/ development permission.
The procedures for revalidating a Development Permission are specified in Regulation No. 5.3."
67. Regulation 6 provides that inspection of construction by the competent authority. Regulation 9 is for use and zone thereunder Regulation 9.1 defines Concept of Zones. Regulation 9.1.1, 9.1.2, 9.1.3 read as under:-
"9.1.1 Core Walled City (CW) This zone has been exclusively identified for promoting conservation of heritage structures and the urban fabric within the walled city.
9.1.2 Gamtal (CM) This zone constitutes of gamtals having a traditional, organic character and compact development. This zone is identified to conserve this traditional character.
9.1.3 Gamtal Extension (GME) This zone acts as a buffer zone for gamtals to allow their natural growth. It permits land use as per R2 zone."
68. Then from Regulation 9.1.4 onwards different Zones like the Residential Zone - I, II, III, Commercial Zone, Logistic Zone, Industrial Zone etc. are provided. Under Regulation 9.2 Zoning Page 64 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Table is prepared showing Use Zones and zone-wise applicability of the Regulations and permissible uses therein.
69. Section 12 of the T.P. Act is with respect to the contents of draft development plan. Section 12(1) and Section 12(2)(m) read thus :
"12. Contents of draft development plan.-- (1) A draft development [which would be in conformity with the development plan under the provisions of the Gujarat Metropolitan Planning Committee Act, 2008] plan shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out.
(2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely:-
(a) to (l) **** *****
(m) provision for controlling and regulating the use and development of land within the development area, [including imposition of charges at such rate as may be provided for grant of Floor Space Index (FSI) or height, and also imposition of] conditions and restrictions in regard to the open space to be maintained for buildings, the percentage of building area for a plot, the location, number, size, height, number of stories and character of buildings and density of Page 65 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 built up area allowed in specified area, the use and purposes to which a building or specified areas of land may or may not be appropriated, the sub-divisions of plots, the discontinuance of objectionable uses of land in any area in any specified period, parking spaces, loading and unloading space for any building and the sizes of projections and advertisement signs and hoardings and other matters as may be considered necessary for carrying out the objects of this Act;"
70. We shall now look into Chapter IV of the T.P. Act. Chapter IV is with respect to control of development and use of land included in the development plans.
71. Section 26 of the T.P. Act provides that on or after the date on which a draft development plan is published in the Official Gazette under Section 13 in respect of any development area, no person shall carry on any development in any building or in or over any land, within the limits of the said area without the permission in writing of the appropriate authority and without obtaining certificate from the appropriate authority to the effect that development charge [and scrutiny fees] as leviable under the Act has been paid or that no such charge [and scrutiny fees] is leviable.
72. Section 27 of the T.P. Act reads thus :
"27. Application of permission for development.-- Any person, not being the Central Government or a State Page 66 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Government, intending to carry out any development in any building or in or over any land within the limits of a development area on or after the date referred to in Section 26, shall, except where such development is for any of the purposes specified in the proviso to that section, make an application in writing to the appropriate authority for permission for such development in such form and containing such particulars and accompanied by such documents as may be prescribed, [and by such scrutiny fees as may be prescribed by regulations].
73. Section 29 of the T.P. Act reads thus :
"29. Grant or refusal of permission.-- (1) On receipt of an application under Section 27 or Section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge [and scrutiny fees], if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing--
(i) grant the permission with or without any condition;
or
(ii) grant the permission, subject to any general or special orders made by the State Government in this behalf; or Page 67 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021
(iii) refuse to grant the permission.
(2) Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal.
(3) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.
(4) If the appropriate authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.
(5) If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of Section 27 or Section 28 or of any permission granted under sub-section (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use.
Page 68 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 (6) Any expenses incurred by the appropriate authority under subsection (5) shall be a sum due to the appropriate authority under this Act from the person in default."
74. Section 116A of the T.P. Act reads thus :
[116A. Variation in matters contained in clause (m) of sub- section (2) of Section 12.-- (1) Notwithstanding anything contained in this Act or any other law for the time being in force or rules or regulations made thereunder, if the State Government is of the opinion that it is necessary in public interest to make any variation in any of the matters provided under clause (m) of sub-section (2) of Section 12 in any development plan, it shall publish such variations in the Official Gazette, inviting suggestions or objections from public in respect of such variations, within a period of two months from the date of such publication.
(2) The State Government may, after considering such suggestions and objections, received under sub-section (1), if any, sanction the variation with or without modifications and publish the same by notification in the Official Gazette, and direct that such variation shall come in force on and from the date of its publication in the Official Gazette.]"
75. The argument before us is that Section 116A referred to above empowers the State Government to undertake variations in the matters contained in clause (m) of sub-section (2) of Section 12 of the T.P. Act. In other words, as per the provisions Page 69 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 contained in Section 116A, the State Government is empowered to modify and/or vary the regulations framed under Section 12(2)(m) of the T.P. Act. It is argued that the conjoint reading of Section 12(2)(m) and Section 116A of the T.P. Act would suggest that the CGDCR, 2017, are part of the development plan. Section 29 of the T.P. Act empowers the State Government to grant permission subject to general or special orders which may be made by the State Government. Thus, the grant of permission by the State Government is sought to be defended relying on Section 12(2)(m) read with Section 116A of the T.P. Act.
76. We are afraid, the entire reading of the provisions referred to above does not appear to be correct. Section 116A of the T.P. Act makes it abundantly clear that it is only if the Government is of the opinion that it is necessary in public interest to make any variation, then it may provide the same in any development plan. We fail to understand how Section 116A is sought to be invoked in a solitary case to make good the grant of permission under Section 29 of the T.P. Act for construction of a Derasar.
77. For the time being we proceed on the footing that Section 29(1)(ii) empowers the Government to grant the necessary permission by general or special orders relaxing the CGDCR, 2017, contrary to the development plan. We are conscious of the fact that in the case on hand there is no challenge to the constitutional validity of Section 29 of the Act and we are also conscious of the fact that there are catena of decisions of the Supreme Court taking the view that inspite of very wide power being conferred on delegatee, such a section would still not be Page 70 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 ultra vires, if guidelines could be gathered from the Preamble, Object and Reasons and other provisions of the Act and Rules. Unfortunately, there are no guidelines for the purpose of exercising the power under Section 29 of the T.P. Act. It is not possible even to gather any guideline from the Preamble, Object and Reasons and other provisions of the Act and Rules. It may be noticed in this context that the power herein is conferred not upon a court or a judicial authority. It has been repeatedly said that whenever discretion is vested in a court, it is a judicial discretion to be exercised on well-known and guided principles and not on humour or whimsicality. However, the executive and political discretion is not governed by any such parameters.
78. When such a wide power is vested in the Government, the same needs to be exercised with greater circumspection. This litigation in public interest reminds us of the decision of the Supreme Court in the case of The Consumer Action Group and another vs. State of Tamil Nadu and others, reported in (2000) 7 SCC 425. In the said matter, by way of petition under Article 32 of the Constitution of India, it was brought to the notice of the Supreme Court the impunity with which the executive power of the State of Tamil Nadu was being exercised indiscriminately in granting exemption to the violators violating every conceivable control, check including approved plan in violation of the public policy as laid down under the Act and the Development Control Rules. The subject matter of challenge in the said litigation was to Section 113 of the Act on the ground that it can do or undo anything under the Act to wipe out any development without any check. We quote the relevant observations :
Page 71 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 "Whenever any statute confers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test to judicial scrutiny. This judicial scrutiny is one of the basic features of our Constitution. The reason recorded truly discloses the justifiability of the exercise of such power. The question whether the power has been exercised validly by the delegatee, in the present case, if yes, then it can only be for the furtherance of that policy. What is that policy? The policy is the development and use of rural and urban land including construction of, colonies, buildings etc. in accordance with the policy of the planning as laid down under the Act and the Rules. When such a wide power is given to any statutory authority including a delegatee then it is obligatory on the part of the such authority to clearly record its reasons in the order itself for exercising such a power. Application of mind of such authority at that point of time could only be revealed when order records its reason. Even if Section is silent about recording of reason, it is obligatory on the Government while passing orders under Section 113 to record the reason. The scheme of the Act reveals, the Government is conferred with wide ranging power, including power to appoint all important statutory authorities; appoints Director and its members of Town and Country Planning under Section 4; constitutes Tamil Nadu Town and Country Planning Board under Section 5; Board to perform such functions as Government assigns under Section 6; appoints Madras Metropolitan Development Page 72 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 Authority under Section 9-A; Government entrusted for making master plan or any other new plan; any plant or modification is subject to the approval of Government. In fact, every statutory Committee is created by the Government and its planning is subject to the approval by the Government. It is because of this that very wide power is given to it under Section 113. In a given case, where a new development in rural or urban area may be required urgently and provisions under the Act and Rules would take long procedure, it may in exercise of its exemption power exempt some of the provisions of the Act and Rules to achieve the development activity faster or in a given case, if any hardship arises by following or having not followed the procedure as prescribed, the power of exemption could be exercised but each of these cases would be for furtherance of the development of that area.
When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz., the public and the individual. So long it does not materially effect the public cause, the grant would be to Page 73 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc., the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may be in a given case, be justified but in no case effecting the public at large. So every time Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise every individual right including fundamental right is within reasonable limit but if it inroads public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted effecting public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, Government must keep in mind, whether such a grant would recoil on public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting. Such an application of mind has not been made in any of these impugned orders. Another significant fact which makes these impugned orders illegal is that Section 113 empowers to exempt but it obligates it to grant subject to such condition as it deems fit. In other words, if any power is exercised then Government must put such condition so as to keep in check such person. We find in none of these sixty-two orders any condition is put by the Government. If not this then what else would be the exercise of arbitrary power."Page 74 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021
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79. Thus, the following is discernible from the above referred observations of the Supreme Court :
(i) Howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that the statute confers and such exercise of power must stand the test to judicial scrutiny;
(ii) When a wide power is given to any statutory authority including a delegatee, then it is obligatory on the part of such authority to clearly record its reasons in the order itself for exercising such a power. The application of mind of such authority at that point of time could only be revealed when order records its reasons. Even if section is silent about recording of reasons, it is obligatory on the Government while passing the orders, say for instance under Section 29 of the T.P. Act, to record the reasons.
(iii) Whether the power has been exercised validly by the delegatee, should be considered asking the question, whether the same is for the furtherance of any policy. For instance, in the case on hand, it would be the making and execution of the development plans and the town planning schemes in the State.
(iv) Greater is the power, greater should be the caution.
No power is absolute, it is hedged by the checks in the Page 75 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021 C/WPPIL/141/2020 JUDGMENT DATED: 18/03/2021 statute itself. Existence of power does not mean to give one on his mere asking. In the case on hand, the Trust could be said to have merely asked to relax the CGDCR, 2017, and grant the permission and the same could be said to have been granted on mere asking.
(v) The entrustment of power like the one under Section 29 of the T.P. Act is only for the public good and for the public cause. While exercising such a power, the authority should keep in mind the purpose and the policy of the Act and while granting a relief should equate the resultant effect of such a grant on both, namely, the public and the individual.
80. In the case on hand, we do not find any particular reason assigned for granting the permission in exercise of power under Section 29(1)(ii) of the T.P. Act. There is no public interest involved in the grant of such permission dehors the CGDCR, 2017, but on the contrary, the permission could be said to be contrary to the public interest.
81. For all the foregoing reasons, we have reached to the conclusion that the permission granted by the State Government is susceptible to the complaint that the same is not in accordance with the provisions of the Gujarat Town Planning and Urban Development Act, 1976, the Gujarat Town Planning and Urban Development Rules, 1979, and the Gujarat Comprehensive Development Control Regulations, 2017.
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82. The last question we need to answer is, whether we should quash and set-aside the impugned permission granted by the State Government.
83. We are of the view that if we quash and set-aside the permission, then as a consequence of the same, the entire construction will be rendered unauthorized and would be liable to be demolished. It is not in dispute that the construction of the Derasar has been completed. At this point of time, we do not want to go to the extent of telling the authority concerned to pull down the entire structure. In such circumstances, we decline to grant any further relief to the writ-applicants.
84. We have taken pains to elaborately examine and explain the provisions of the Act, the Rules and the Regulations with only one object that in future as and when occasion arises for the State to exercise its powers under Section 29(1)(ii) of the T.P. Act, then it should keep in mind the observations made by this Court.
85. We expect the State to frame appropriate guidelines or appropriate regulations for the purpose of exercise of power under Section 29 of the T.P. Act. Once such guidelines are framed keeping in mind the object of the Act and if permissions are granted in accordance with such guidelines, then there will be no scope for any person to redress any grievance as regards grant of such permission.
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86. In the last, we may only observe that no person or any religious sect should go before the State Government and make a request to grant permission to construct any religious structure dehors the provisions of the Act, the Rules and the Regulations in the name of 'right to worship' or 'right to religion'. The interpretation that the court must place upon Section 29(1)(ii) of the T.P. Act must be such as avoids arbitrariness and the conferment of uncanalised power. Section 29(1)(ii) of the T.P. Act should, therefore, ordinarily be exercised in public interest.
(J. B. PARDIWALA, J.) (ILESH J. VORA, J.) /MOINUDDIN Page 78 of 78 Downloaded on : Sat Sep 04 10:33:02 IST 2021