Gujarat High Court
Mahendrabhai vs State on 11 October, 2010
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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SCA/10238/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10238 of 2010
To
SPECIAL
CIVIL APPLICATION No. 10242 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10293 of 2010
To
SPECIAL
CIVIL APPLICATION No. 10310 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10339 of 2010
To
SPECIAL
CIVIL APPLICATION No. 10353 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10367 of 2010
To
SPECIAL
CIVIL APPLICATION No. 10378 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10379 of 2010
To
SPECIAL
CIVIL APPLICATION No. 10385 of 2010
=========================================
MAHENDRABHAI
M PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT, THROUGH SECRETARY TO THE GOVT. OF GUJARAT & 4 -
Respondent(s)
=========================================
Appearance
:
MR B.B. NAYAK, SR. COUNSEL with
MR PS CHAMPANERI for Petitioner(s) : 1
MR.
P.K.JANI, GOVERNMENT PLEADER in SCA Nos. 10238
of 2010 to 10242 of 2010
MR.
UMESH TRIVEDI, ADDL. G.P. in SCA Nos. 10293 of 2010 to 10310 of 2010.
MRS.
KRINA CALLA, AGP. in SCA Nos. 10339 of 2010 to 10353 of 2010.
MR.
PRANAV TRIVEDI, AGP in SCA Nos. 10379 of 2010 to 10385 of
2010.
NOTICE
SERVED BY DS for Respondent(s) : 3 - 4.
MR S.N.SHELAT, SR. COUNSEL
with MR RM CHHAYA for Respondent(s) : 3 -
4.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 11/10/2010
ORAL
ORDER
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) These writ petitions have been preferred by some party-plot owners for setting aside the notices issued by Ahmedabad Municipal Corporation for violation of the norms. Prayer has also been made to direct respondents to open the seal put on the petitioners' party plots.
One of the pleas taken by the petitioners is that the Gujarat Town Planning and Urban Development Act, 1976, imposes certain statutory obligations on the development authority and area development authority, and under the provisions of Sections 6 to 19 of the said Act, to provide for adequate public facilities, amenities and it is their obligation reciprocated on them in lieu of charging betterment, development and charges in the form of tax to provide adequate parking place, stands for auto-rickshwas, motor cabs, public utilitities vehicles, maintenance of footpath, public urinals and other facilities to the civic. It is alleged that the authorities have sealed the party plots on one of the grounds that they do not have parking facility, and it causes obstructions in smooth maintenance and control of vehicular traffic on the road.
A specific plea was taken on behalf of Ahmedabad Municipal Corporation that the petitioners are guilty of not providing parking facility as required under the provisions of clause (m) of sub-section (2) of Section 12 and clause (c) of sub-section 2 of Section 13 of the Gujarat Town Planning & Urban Development Act, ('Town Planning Act' for short) and General Development Control Regulation, ('GDCR' for short) and they have not obtained any permission from the competent authority under the Bombay Provincial Municipal Corporation Act ('B.P.M.C Act' for short) and GDCR under Sections 253 of the BPMC Act, and petitioners have not produced commencement certificate nor they have produced certificate authorising them to occupy or use the plot under Section 263 of the Act. In view thereof, notices were issued to the petitioners stating that the work was done without written permission of the Commissioner, Ahmedabad Municipal Corporation and its authorities and therefore, the Corporation is justified in directing them to undo what has been done by the petitioners in breach of the provisions of the Act and the Rules.
Reliance was placed on Regulation 18 which relates to special structures, Regulation 19 which relates to parking and Regulation 32 which relates to zoning and use provisions. Under Regulation 19, prescription has been made as to what should be the minimum parking space for different structures and buildings, club, marriage hall, party-plots etc. Regulation 32 deals with types of development in each land use zone which is to be regulated as per table mentioned therein. We have noticed that many of the petitioners do not fulfil the conditions as mentioned therein.
The case was heard on 7th October, 2010 and petitioners were allowed to move the Commissioner of Ahmedabad Municipal Corporation for grant of necessary permission to run the party-plot, subject to observation of formalities. It is informed that pursuant to the Court's observation, number of petitioners have moved before the Commissioner, Ahmedabad Municipal Corporation for grant of permission.
Mr. S.N.Shelat, counsel appearing for the Municipal Corporation submits that the Corporation has reconsidered the matter, and have taken a decision consistent with the requirements of GDCR. Accordingly, if the party-plots meet with the following requirements, the Municipal Commissioner will lift the seal on the conditions mentioned hereunder:-
A.
1. Area of Plot to be 2000 Sq.mtrs. or more
2.
Plot must abuts on the 18 mts. or more wide road
3. Plots should not be part of the old green belt area, because under the requirement of the Town Planning Scheme, 50% of the plot area is to be deducted. This is the subject matter of the controversy before the Hon'ble Supreme Court.
B. They should apply for Development Permission on or before 18th October, 2010, failing which the party plot premises will be sealed on 19th October, 2010.
Municipal Commissioner shall examine the said applications on or before 25th October, 2010. If on or before 25th October, 2010, no such permission is granted for deficiencies, the party plots shall be sealed again on 26th October, 2010.
After development permission is granted, the owner shall get the approval for Building Use Permission on or before 25th December, 2010. If on or before 25th December, 2010, no such permission is granted for deficiencies, the party plots shall be sealed again on 26th December, 2010.
E. In the event of failing to make application for development permission and failing to get Building Use Permission, they shall stop-using the party-plots.
F. They shall also furnish an undertaking that there is no litigation with regard to ownership of the plots.
Mr. B.B.Nayak and Mr. Pankaj Champaneri, learned counsel appearing on behalf of the petitioners submit that petitioners are agreeable to the conditions above, but so far as Clause (A) (3) is concerned, the condition will be followed subject to their rights and contentions and the decision that may be rendered by the Supreme Court in pending case relating to green belt area.
In view of such stand taken by the parties, all these writ petitions are disposed of with liberty to the petitioners to approach the Commissioner, Ahmedabad Municipal Corporation. Wthin the time as stipulated above, if any application is filed by one or other petitioners and fulfil the condition, and furnish undertaking as sought for by the Commissioner, the Commissioner will pass order in terms of the consent given by and recorded hereinabove, within the prescribed period. The facilities petitioners intend to give to its customers shall also be shown, as shown before this Court.
We only make it clear that the terms and conditions relating to green belt area, as shown at clause A(3) aforesaid shall be subject to the decision as may be rendered by the Supreme Court. The parties will be guided by such judgment. It is also made clear that this Court has not expressed any opinion on the issue raised by the parties. The writ petitions stand disposed of with the aforesaid observations and directions. No costs.
Direct service permitted.
(S.J. Mukhopadhaya, C.J.) (Anant S. Dave, J.) */Mohandas Top