Gujarat High Court
Atul Kantilal Mehta vs The Municipal Commissioner on 1 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1792/2024 ORDER DATED: 01/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1792 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 16992 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 1792 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 7035 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 16579 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 16579 of 2018
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ATUL KANTILAL MEHTA & ORS.
Versus
THE MUNICIPAL COMMISSIONER & ORS.
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Appearance:
MR BHARAT T RAO(697) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,3,4,5,6,7,8,9
G H VIRK with MR. SIMRANJIT VIRK WITH MS. NENCY SHETH (7392) for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 01/01/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) The Special Civil Application No. 16992 of 2024 out of which the first captioned Letters Patent Appeal has arisen and other two connected writ petitions noted hereinabove have been filed with respect to the same subject matter at different point of time, with the reliefs crafted in such a manner that separate orders were passed in these matters, independent of each other. The subject matter of controversy is the construction raised by the original petitioners (appellants herein) over the plots namely the Page 1 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined City Survey Nos.5459, 5460, 5463 to 5468, Sheet No. 80, Jamalpur-III situated at Astodia Gate Area, Ahmedabad, known as 'Salman Avenue' (hereinafter referred to as 'the building-in-question').
2. It is an admitted fact of the matter that the aforesaid plots lie in the regulated area of mosque namely Dastoorkhan Mosque near Astodia Gate Area, Ahmedabad, which is a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
3. The first writ petition being Special Civil Application No. 16579 of 2018 was for the relief for quashing of the letter dated 19.10.2018 of the respondent No.2 namely Deputy Estate Officer, Central Zone, Ahmedabad Municipal Corporation (in short 'AMC'), Ahmedabad with respect to the constructions of 5th and 6th floors raised by the petitioner unauthorisedly. The prayer made in the writ petition is to quash the notice dated 16.10.2018 issued by the Deputy Estate Officer, AMC under Section 260(1) of the Gujarat Provincial Municipal Corporations Act, 1949. During the pendency of the said writ petition, it seems that an interim order dated 08.03.2019 was passed to the effect that it would be open for the petitioner to approach the competent authority-namely the Director of Archaeology, Gandhinagar to seek necessary Page 2 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined approval/permission for raising construction beyond 18 meters or to seek regularisation of 5th and 6th floors and in the interregnum the Corporation shall not demolish the building-in-question. The said interim order was uptil the next date of hearing. However, when the matter was listed on 22.10.2024, while it was adjourned on the request made on behalf of the learned advocate for the respondent Corporation, the interim relief granted on 08.03.2019 was not extended.
4. The petitioner herein has filed a second writ petition namely the Special Civil Application No. 7035 of 2023 with respect to the same constructions with the prayers for quashing of the decision taken by the competent authority namely the National Monuments Authority, Government of India, Ministry of Cultural, New Delhi, dated 08.07.2022 at its 353rd meeting held at New Delhi and conveyed to the petitioner vide communication dated 23.01.2023 (received on 26.01.2023).
5. We may note that in the first petition filed in the year 2018, the dispute was with respect to the constructions raised by the petitioner as 5 th and 6th floors in the building-in-question based on the permission letter dated 3rd September, 2015 (appended at page No. '47' of the Special Civil Application No. 16579 of 2018), wherein there was a reference of NOC Page 3 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined recommended in 125th meeting of the National Monuments Authority held on 18.08.2015, to raise construction for GF + 6 floors with total height of 22.8 meters. The basis of the notice of demolition issued by the AMC, subject matter of challenge in the writ petition of the year 2018, was that the permission letter dated 3rd September, 2015, which is the communication allegedly issued by the under Secretary, Ministry of Culture, National Monuments Authority addressed to the competent authority, Director of Archaeology, Gandhinagar, is a fake document which. The revised permission for construction for 5th and 6th floors dated 15th February, 2017 granted by the Corporation (appended at Page No. '50' of the paper book of the writ petition No. 16579 of 2018), being based on a fake NOC, stood recalled.
6. The record indicates that vide communication dated 23.01.2023, which was subjected to challenge in the writ petition of the year 2023 (separately filed), the National Monuments Authority has reiterated its decision restricting the height of the building to 18 meters i.e. GF + 4 floors (inclusive of) taken in the decision of the authority in its 171 st meeting held on 21.03.2018. A perusal of the Minutes of the 353 rd meeting of the National Monuments Authority dated 08.07.2022 (under challenge in the writ petition of the year 2023) indicates that the National Page 4 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined Monuments Authority has reiterated its decision taken in its 171 st meeting held on 21.03.2018 in capping the height of the new building and structure proposed to be constructed inside the wall city of Ahmedabad, as it is declared as UNESCO World Heritage Site. While communicating the said decision of the National Monuments Authority vide communication dated 23.01.2023, it was clarified by the Competent Authority, Gujarat National Monuments Authority, Gandhinagar that the petitioner is required to adhere to the conditions laid by the National Monuments Authority, New Delhi and he shall submit an undertaking affidavit to the Competent Authority that he shall demolish the unauthorised portion of the building above 18 meters. The fact remains that the permission (NOC) allegedly granted to the petitioner vide communication dated 3rd September, 2015 by the National Monuments Authority was found to be fake document and the consistent decision of the National Monuments Authority remained as taken in 171st meeting held on 21.03.2018 in capping the height of the new buildings and structure inside the walled city of Ahmedabad upto 18 meters and in the case of the petitioner GF + 4 floors (inclusive of).
7. We may note that on the presentation of the second writ petition being Special Civil Application No. 7035 of 2023 filed against the Page 5 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined National Monuments Authority challenging its decision dated 08.07.2023 and communication dated 23.01.2023, though notice has been issued, but there is no interim order.
8. The third writ petition namely Special Civil application No.16992 of 2024 was filed by the petitioner with the reliefs as under :-
"(b) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, declaring that in view of provisions of Sec. 5 of the Gujarat Regularisation of Unauthorised Development Act, 2022 when application for regularisation has been made under Sec.6 thereof, the notice for demolition issued by respondents remain suspended till the competent authority under the GRUDA Act finally decides the applications (Annexure-W) for regulariastion made by the petitioners for the reasons stated in the memo of petition and in the interest of justice;
(c) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay the execution, implementation and operation of order/notice dated 23.10.2018 passed by the respondent No.2 under Sec. 260(2) of GPMC Act (Annexure-O) and restrain the respondent nos. 1 and 2 from demolishing the building "Salman Avenue" constructed on the land bearing City Survey No. 5459, 5460, 6463 to 5468, Sheet No. 80, Jamalpur-III situaed at Astodia Gate Area, Ahmedabad in view of applications for regularisation of construction made by petitioners under GRUDA Act (Annexure-W) as per Sec.5 of GRUDA Act for the reasons stated in the memo of petition Page 6 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined and in the interest of justice."
9. A perusal of the record of the writ petition indicates that the challenge essentially is to the demolition notice dated 23.10.2018 issued under Section 260(2) of the GPMC Act, which was already a subject matter of challenge in the first writ petition namely Special Civil Application No. 16579 of 2018. It seems that the petitioner has been able to maintain the said writ petition filed in the year 2024 by adding one prayer as prayer No.B wherein a writ of mandamus has been sought seeking for regularisation of unauthorised construction raised by the petitioner under the provisions of the Gujarat Regularisation of Unauthorised Development Act, 2022 (in short 'the GRUDA'). We may note that the third writ petition filed in the year 2024 decided vide judgment and order dated 18.12.2024 (subject matter of challenge in the first captioned Letters Patent Appeal) was nothing but virtually a second writ petition for the same cause of action and as such was not maintainable and was liable to be dismissed at the threshold.
10. Be that as it may, the learned advocate for the petitioner has succeeded in maintaining the same inspite of pendency of the two writ petitions filed at a previous point of time for the same cause of action.
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11. The judgment and order dated 18.12.2024 was passed noticing that the provisions of the GRUDA Act, for regularisation of unauthorised construction, are not applicable in the facts and circumstances of the present case and the prayer for mandamus seeking a direction to the competent authority to decide the claim of the petitioner seeking regularisation by means of the two applications filed by him, cannot be granted.
12. On the presentation of the Letters Patent Appeal challenging the said decision of the learned single Judge vide order dated 19.12.2024, we have summoned the records of the Special Civil Application No. 16579 of 2018 and Special Civil Application No. 7035 of 2023. Noticing the above noted facts reflected from the record, both the writ petitions have been connected with the Letters Patent Appeal vide order dated 20.12.2024. Once the record was placed before us, the matter was heard at length on 20.12.2024 itself and on the prayer made by the learned counsel for the petitioner, it was adjourned to 24.12.2024. On 24.12.2024, two affidavits have been filed in the Court, one on behalf of the petitioner in the shape of undertaking and another affidavit has been filed on behalf of the AMC. As per the affidavit dated 24.12.2024 filed in Page 8 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined the shape of undertaking of the petitioner, a statement has been made therein to the effect that the petitioner will not use the building-in- question beyond 18 meters. However, the said undertaking has been made subject to the final outcome of the Special Civil Application No. 7035 of 2023, wherein the petitioner has challenged the decision of the National Monuments Authority dated 08.07.2022 communicated vide communication dated 23.01.202, reiterating its stand for capping the height of new buildings and structure proposed to be constructed inside the wall city of Ahmedabad declared as UNESCO Worlds Heritage Site. The restriction as reiterated in the communication dated 23.01.2023 is 18 meters, i.e. GF + 4 floors (inclusive of), as per the decision of the authority taken in its 171st meeting held on 21.03.2018.
13. As the learned counsel for the petitioner has not been able to show any illegality in the decision of the National Monuments Authority dated 21.03.2018 reiterated in its 353rd meeting dated 08.07.2022 communicated through the communication dated 23.01.2023, we do not find any good ground to grant prayers made in the writ petition, namely Special Civil Application No. 7035 of 2023. The challenge to the decision of the National Monuments Authority in capping the height of the building-in-question cannot be sustained.
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14. On a query of the Court, the learned advocate for the petitioner has not been able show any legal provision which would reflect that any legal rights of the petitioner had been prejudiced with the decision of the National Monuments Authority. The fact remains that the height of the building-in-question as per the permission granted by the National Monuments Authority has to be maintained by the AMC, which is the competent authority to see that the constructions are raised in the walled city of Ahmedabad at the site-in-question, as per the NOC granted by the National Monuments Authority.
15. In this scenario, the affidavit of the AMC dated 24 th December, 2024 filed in the Special Civil Application No. 16579 of 2018 is to be looked into. In the said affidavit of the Deputy Estate Officer, Central Zone, AMC, it is categorically stated that the AMC has granted permission for construction of the GF + 4 floors in terms of the Commencement Letter (raja chiththi) dated 05.10.2016, whereas the subsequent Commencement Letter (raja chiththi) dated 15.02.2017 granting permission GF + 6 floors was based on a No-objection certificate of the National Monuments Authority, which was found to be fake. The competent authority of the Corporation, therefore, in view of Page 10 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined Clause 2.6 of the Comprehensive General Development Control Regulation, 2017 had forfeited its development permission granted by the Commencement Letter (raja chiththi) dated 15.02.2017. The result is that the development permission granted vide Commencement Letter (raja chiththi) dated 05.10.2016 granting permission for construction upto 4th floor, only survived.
16. It is categorically stated in the affidavit of the Deputy Estate Officer of the Ahmedabad Municipal Corporation that the Corporation does not intend to demolish the structure of the building-in-question known as 'Salman Avenue' upto the 4th floor (as per the development permission dated 05.10.2016) and the demolition carried out by the Corporation in the interregnum are in accordance with Section 260(2) of the GPMC Act, 1959, confining to the illegal constructions raised on 5 th and 6th floor of the building-in-question.
17. The result is that the petitioner herein is required to maintain the height of the building-in-question upto 18 meters as per the NOC granted by the National Monuments Authority in its 171st meeting held on 21.03.2018, reiterated in its 353rd meeting held on 8th July, 2022, communicated to the petitioner vide communication dated 23.01.2023.
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18. In light of the above and in view of the undertaking given by the petitioner in the affidavit dated 24.12.2024 filed in the Special Civil Application No. 16579 of 2018 that the height of the building-in-question would be maintained upto 18 meters and will not carry out any construction beyond that, we find it fit and proper to dispose of all the connected matters with the observations that the demolition as carried out by the Corporation in the interregnum are in accordance with law, in view of the NOC granted by the National Monuments Authority permitting for construction upto 18 meters (GF + 4 floors) only. The construction raised by the petitioner over and above 18 meters, beyond GF + 4 floors, as against the development permission dated 05.10.2016 have already been demolished by the AMC in continuation of its notice dated 16.10.2018 issued under Section 260(1) of the GPMC Act reiterated from time to time. With the demolition of the unauthorised construction during the pendency of the two writ petitions filed by the petitioner herein, no useful purpose would be served in keeping the writ petitions namely Special Civil Application No. 16579 of 2018 and Special Civil Application No. 7035 of 2013 pending in this Court.
19. We, therefore, dispose of the instant Letters Patent Appeal as also Page 12 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025 NEUTRAL CITATION C/LPA/1792/2024 ORDER DATED: 01/01/2025 undefined the two connected writ petitions with the observations and directions that the petitioner shall maintain the height of the building-in-question upto 18 meters in strict compliance of the permission granted by the National Monuments Authority in its 171 st meeting held on 21.03.2018, reiterated in its 353rd meeting held on 8th July, 2022, communicated to the petitioner vide communication dated 23.01.2023 and construction as per the development permission in terms of Rajachithhi dated 05.10.2016 granted by the Ahmedabd Municipal Corporation.
20. As regards the prayer made by the learned counsel for the petitioner that he may be permitted to approach the National Monuments Authority for grant of NOC beyond 18 meters, at this stage, we do not find any reason to make any observation in that regard. It is open for the petitioner to pursue his prayer before the competent authority.
21. All pending Civil Applications stand disposed of, accordingly.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) C.M. JOSHI Page 13 of 13 Uploaded by C.M. JOSHI(HC01073) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:42:15 IST 2025