Gujarat High Court
Vivek Manubhai Sojitra vs State Of Gujarat on 6 January, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5903 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
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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VIVEK MANUBHAI SOJITRA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1
MS. JYOTI BHATT, AGP, \(1) for the Respondent(s) No. 1
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 4,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 06/01/2022
ORAL JUDGMENT
[1] Rule. Learned Assistant Government Pleader Ms. Jyoti Bhatt waives service of rule on behalf of respondent No.1-State, learned advocate Mr. Dhaval Nanavati waive service of rule on behalf of respondent No.2 and learned advocate Ms. Kruti M. Shah waives service of rule on behalf of respondent Nos.4 and 5.
Page 1 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 [2] This petition under Article 226 of the Constitution of India is
filed by the petitioner challenging the decision dated 21.11.2019 in Appeal No.630 of 2016 of the respondent No.3-Appellate Officer and Vice Chairman under the provisions of Gujarat Regularization of Unauthorized Development Act, 2011 (for short "GRUDA").
[3] The main contention of the petitioner is that the petitioner had objected to regularizing of the unauthorized construction of the respondent Nos.4 and 5 and initially the authority had rejected the application of the regularization of unauthorized construction filed by the respondent Nos.4 and 5. Thereafter, the respondent Nos.4 and 5 preferred an Appeal as provided for under Section 12 before the respondent No.3-Appellate Officer and Vice Chairman. The respondent No.3-Appellate Officer and Vice Chairman allowed the Appeal and regularized the unauthorized construction however, while doing so, the petitioner was not joined in the proceedings despite being the original objector to the application.
[4] Learned advocate for the petitioner raised the contention that despite the fact that the respondent No.2-Authority had rejected the application for regularization of unauthorized construction, It had proceeded to accept the impact fees even prior to the decision in the appeal by the respondent No.3-Appellate Officer and Vice Chairman and on the ground that the impact fee is already paid, the impugned order of respondent No.3-Appellate Officer and Vice Chairman is passed to regularize unauthorized the construction. Learned advocate for the petitioner has taken this Court through the documents namely application filed by the respondent Nos.4 and 5 which is dated 04.05.2012, the order dated 01.06.2015, wherein the Executive Engineer (respondent No.2) has directed the respondent Nos.4 and 5 to produce the consent certificate of the interested Page 2 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 persons. Attention is also drawn to the communication at Annexure- H by respondent No.3 dated 09.05.2015, indicating that the application for regularizing the construction is rejected.
[4.1] Learned advocate for the petitioner submitted that the respondent Nos.4 and 5 filed an appeal being Appeal No.630 of 2016 despite the respondent Nos.4 and 5 being aware of the petitioner being an objector and one of the parties in the proceedings before the respondent No.2, have deliberately not made the petitioner as party. It is submitted that even before the authority though the respondent-corporation is one of the parties, but no representation was effectively made before the respondent No.3-Appellate Officer and Vice Chairman and it is reflected that no one had remained present before the respondent No.3-Appellate Officer and Vice Chairman when the impugned order was passed.
[5] It is submitted that though the impugned order refers to remanding the proceedings, but as a matter of fact the directions are clear and unequivocal to the respondent-corporation to grant the sanction on the ground that the impact fee is already accepted. Learned advocate for the petitioner states that unauthorized construction which is sought to be regularized is in fact a parking area which is now covered and used by the respondent Nos.4 and 5, but the said parking area is identified in the development plan to be a common place for parking for the occupants of the structure for which the development plan has been passed. Learned advocate submitted that the application for regularization of unauthorized construction is only a sham and that the GRUDA came into effect w.e.f. 12.10.2011, whereas the development permission was sought for from respondent-corporation on 29.01.2011, the respondent Nos.4 and 5 had purchased from the developer on 24.10.2011 and Page 3 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 therefore, the chronology clearly indicates that deliberately unauthorized construction was made to cover the parking area and so as to benefit the respondent Nos.4 and 5 and against the interest of the petitioner.
[5.1] Learned advocate submitted that the petitioner is vitally interested as the unauthorized development which took place in the parking area has directly affected the right of the petitioner to utilize the common area meant for parking.
[6] Learned advocate Mr.Dhawal Nanavati for the respondent corporation, by relying upon the affidavit-in-reply of the corporation, stated that the corporation has acted in accordance with the provisions of law and that after the directions in the impugned order by the respondent No.3-Appellate Officer and Vice Chairman, which clearly held that there is no requirement of the consent certificate of the interested persons has proceeded to consider the application for regularization and has therefore, regularized the unauthorized construction. He draws attention of this Court to Annexure-R11 which is dated 21.08.2020 by which the unauthorized construction on the part parking space was regularized. Learned advocate submitted that there is no requirement under the provisions of GRUDA for submitting of any consent certificate of the interested persons and therefore, the Arespondent No.3-Appellate Officer and Vice Chairman has rightly allowed the appeal. It is submitted that the petitioner was though aware of the entire proceedings had chosen to remain silent and only after the new person has stepped in, in whose favour regularization was ordered, the present petitioner has been filed. Learned advocate submitted that the petitioner is not a necessary party in so far as the issue of regularization of unauthorized is concerned and therefore, rightly Page 4 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 not joined as party respondent.
[7] Learned advocate Ms. Kruti Shah appearing for private respondent Nos.4 and 5 submitted that petition by the petitioner is nothing, but blackmailing the respondent Nos.4 and 5 as it was his demand that the respondent Nos.4 and 5 should only sell the property to the petitioner and as having refused to do so, he has started with the litigation under the provisions of GRUDA. Learned advocate submitted that the petitioner was vigilant enough and was aware of the day to day happening in connection with the unauthorized construction and despite the fact that the appeal was filed in the year 2016 and came to be disposed of only in the year 2019, the petitioner himself has not chosen to appear before the respondent No.3-Appellate Officer and Vice Chairman.
[7.1] It is also submitted that the petitioner is also aware that the entire property in question including the unauthorized construction which is now regularized has been sold in the year 2016 to one Rajesh Mahendrakumar Jain and others despite the petitioner has not chosen to add those persons as party respondents and therefore, the ultimate order that may be passed though will not affect the right of such third person, he has not made as party respondents and therefore, the malafide intention of the petitioner is evident as the party who is affected, is not brought before this Court.
[7.2] Learned advocate has placed on record un-affirmed affidavit in reply on behalf of respondent Nos.4 and 5 with a undertaking that later on the affidavit will be placed on record. Considering the prevailing situation, the Court is inclined to accept the un-affirmed affidavit-in-reply alongwith the annexure as part of the record.
Page 5 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 Learned advocate has relied upon the decision of Division Bench of this Court dated 15.03.2012 in Letters Patent Appeal No.47 of 2012, wherein the Division Bench has interfered in the the directions issued by the authorities for removal of the compound wall which was unauthorizedly constructed on the ground that where the civil rights are in question, it is the Civil Court which has to establish the right of the private parties.
[8] The Court has heard learned advocates for the parties and perused the documents placed on record. The issue pertains to building known as "Golden Point", developed by one Hasmukhbhai Maganbhahi Manani, who had applied for the development permission on 29.01.2011. The respondent Nos.4 and 5 were purchasers of the development admeasuring to 21.62 Sq.Meters on the ground floor of Golden Point by registered sale deed dated 24.10.2011. The petitioner is the purchaser and occupier of the first and second floor of the same building. It appears that on the ground floor which is in occupation of respondent Nos.4 and 5, unauthorized construction was made which was for the commercial purpose and in the parking area for which an application was made in prescribed form for regularization under GRUDA. It appears that in the application, the declaration is made which reads as under:-
"I hereby declare that, the place for which I have made a application to provide Parking space is not in the possession / use / or beneficial for any other person. I will not sell or share it with any other person or with his beneficiary in any way in future violating the objective of providing the necessary space for Parking."
[9] The petitioner being occupier of the same structure under the same development permission, In the opinion of the Court, is vitally interested in any construction authorized or unauthorized on the Page 6 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 same premises and hence, was justified in raising the objections. It appears that the petitioner had submitted his written objections against the grant of the regularization application and after considering the objections an order dated 01.06.2015 came to be passed, wherein the regularization which was sought as under:-
Floor Area Sq. Mts. Area Sq. Mts. Area Sq. Mts.
(as per the As per the As per the site As per the
application to
document and situation Assessment
regularize the
unauthorized produced records of
construction)
S.M.C.
4.40 x 7.80
Ground Floor
21.62 32.52
(Commercial)
34.32
6.50 x 11.65
Mezzanine Floor
-- 34.10
(Commercial)
75.73
[10] The operative part of the order being that the construction on the ground floor, shop was against the plan sanctioned and by extending the parking area which was covered and that portion was jointly sold in favour of authorized occupants of the same structure, consent letters were required to be produced from the interested persons. After that as the respondent Nos. 4 and 5 had failed to produce such consent letters, as directed under the order, by a separate consent in statutory format dated 09.05.2015 the permission for unauthorized construction was rejected.
[11] It is against this order that the Appeal No.630 of 2016 was filed before the respondent No.3-Appellate Officer and Vice Chairman by the respondent Nos.4 and 5, where the opponents were the Executive Engineer, Central Zone of Surat Municipal Corporation as well as the Surat Municipal Corporation. However, Page 7 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 the petitioner was not joined as party opponent therein. By an order dated 21.11.2019, the order of the respondent No.3 dated 09.05.2015 based on original order of 01.06.2015 came to be set aside and while doing so, the the respondent No.3-Appellate Officer and Vice Chairman considered the fact that on 25.04.2014 an impact fee of Rs.98,930/- was paid by the respondent Nos.4 and 5 and that other documents like possession receipt, professional tax bill, tax bill, shop licence and tax bill of SMC/light bill were produced to establish the ownership of the respondent Nos.4 and 5 of the unauthorized construction and therefore, the unauthorized construction is required to be regularized.
[12] While passing the impugned order, the respondent No.3- Appellate Officer and Vice Chairman has observed that on behalf of the Surat Municipal Corporation, none had remained present to represent the case on behalf of the corporation and therefore, requirement of producing the consent letters of the interested persons whether was justified or not could not be argued before the respondent No.3-Appellate Officer and Vice Chairman, whereas the respondent No.3-Appellate Officer and Vice Chairman has in one line stated that the consent letters of the other interested persons is not necessary however, has failed to assign any reasons for observing so.
[12.1] More particularly, when the entire record which was placed before the respondent No.3-Appellate Officer and Vice Chairman, it was very much clear that the respondent No.3 while rejecting the regularization application had referred to the objection raised by the petitioner and having considered such objection had rejected the regularization application and therefore, it was required for the appellate authority to assign cogent reason before holding Page 8 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 that the consent letter of the interested persons is not required for deciding the regularization of unauthorized construction. Over and above this, the Court finds curious stand taken by the respondent No.3-corporation which is now playing a different tune to support the case of the respondent No.1 and respondent Nos.4 and 5 by stating on oath in para-5.18 as under:-
"5.18 In exercise of the powers conferred under Section 12 of the Gujarat Regularization of Unauthorized Development Act, 2011, the Appellate Officer and Vice Chairman, Gujarat Maritime Board, Gujarat Urban Development Company Limited has heard the private respondents as well as the writ petitioners and after hearing both the parties and considering and examining the documents and other documentary material which was placed in record, the Appellate Officer & Vice Chairman, Gujarat Maritime Board, Gujarat Urban Development Company Limited vide its order bearing No.Ja.GUDA/Appeal/630/2016/705n dated November, 21, 2019, passed detailed reasoned order, whereby allowing the appeal filed and preferred by the private respondents. The order is already on record of the present proceedings at page 61 of the paper book."
[13] This averment made in the affidavit-in-reply of the corporation is completely against what is recorded by respondent No.3- Appellate Officer and Vice Chairman. It is also pertinent for the Court to observe that at Annexure-R8 which is a statutory form C2, addressed to respondent No.4 directing to deposit an amount of Rs.98,930/- within a period of 30 days of the notice which, according to the learned advocate for the respondent-corporation is within the power under Section 6(2) of the GRUDA. However, the said communication under form C2 has to be preceded with an action as contemplated under Section 6(1) of GRUDA and there is nothing brought on record or submission made at bar to indicate that before issuing of consent form C2 on 25.04.2014, any order or opinion was arrived at under Section 6(1) of GRUDA.
Page 9 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 [14] Moreover, considering the fact that the respondent No.3 itself has rejected the regularization application by order dated 01.06.2015 and 09.05.2015, then where is the question of issuing notice under form C2 dated 25.04.2014, calling upon the respondent Nos.4 and 5 to make payment of amount of Rs.98,930/- towards regularization of unauthorized construction.
[15] With regards to the contention raised by the private respondents regarding delay in challenge to the order made in the year 2019, this Court is of view that as the petitioner was not made a party to the proceedings being Appeal No.630 of 2016 which was decided on 21.11.2019 and there being nothing on record to indicate the knowledge of the pending proceedings, the Court is of the view that there is no delay in challenging the impugned order before this Court in the present petition. Moreover, the cause of action in favour of the petitioner had also arisen when the order of regularization was passed which is dated 21.08.2021 (Annexure-R1), albeit in favour of third person namely Rajesh Mahendrakumar Jain and others.
[16] In so far as the contention raised by the private respondents regarding locus of the petitioner to challenge, a reference can be made to language in Section-12 which starts with words "any person aggrieved". Not only that the development permission originally granted for developing the structure, the petitioner is the occupation of the same on first floor and second floor, whereas unauthorized construction is on the ground floor and shop, belonging to the respondent Nos.4 and 5 and the unauthorized construction extending beyond the authorized construction into the parking area meant for common use of the occupiers as per the development permission. Hence, the petitioner is vitally interested Page 10 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022 C/SCA/5903/2021 JUDGMENT DATED: 06/01/2022 in any unauthorized development which may take place on the structure which is constructed as per the development plan of which the petitioner is a co-occupier.
[17] Over and above, from the record, it is evident that the petitioner was the person who had objected to the grant of regularization application and the first authority (respondent No.2) had heard and considered the objections and rejected the application for regularizing the unauthorized construction. Hence, in the opinion of the Court, the petitioner is vitally interested.
[18] In view of the aforesaid reasonings, the Court finds sufficient cause to interfere with the impugned decision of the respondent No.3-Appellate Officer and Vice Chairman and hence, the order dated 21.11.2019 is set aside. The case is remanded back to the Appellate Officer and Vice Chairman for reconsidering the Appeal No.630 of 2016 after affording an opportunity of hearing to the petitioner as well as any other person who may be concerned in view of the subsequent development which has taken place, but to which the Court refrained from referring to as being not relevant for the purpose of deciding the present petition. Such remand proceedings be decided expeditiously.
[19] With the aforesaid, the petition stands partly allowed. Direct service is permitted.
(A.Y. KOGJE, J) SIDDHARTH Page 11 of 11 Downloaded on : Wed Jan 12 17:29:17 IST 2022