Gujarat High Court
Bhupatsinh Visaji Vaghela vs State Of Gujarat on 1 April, 2025
NEUTRAL CITATION
C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16395 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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Approved for Reporting Yes No
Yes
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BHUPATSINH VISAJI VAGHELA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MEET D KAKADIA(11896) for the Petitioner(s) No. 1
MR ROHAN RAVAL AGP for the Respondent(s) No. 1
MR HRIDAY BUCH(2372) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
MR TATVDEEP J JANI(7227) for the Respondent(s) No. 4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 01/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned AGP Mr. Rohan Raval waives service of rule on behalf of respondent No.1, learned advocate Mr.Hriday Buch waives service of rule on behalf of respondent Nos.2 and 3 and learned advocate Mr. Tatvdeep Jani waives service of rule on behalf of respondent No.4.
2. This petition is filed seeking following prayers: -
Page 1 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined "(26) In the premises aforesaid, the petitioners most humbly and respectfully pray that:
(A) YOUR LORDSHIPS may be pleased to issue a writ of prohibition and/or any other appropriate writ, order or directions directing the respondent authorities to remove illegal seal applied upon the premises of the present petitioner on 07.10.2024 (at ANNEXURE-J) in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to direct the respondent authorities to immediately decide the application preferred by the present petitioner under the provisions of the Gujarat Regularization of Unauthorized Development Act, 2022 on 16.05.2024 as expeditiously as possible within some stipulated time period (at ANNEXURE-G) in the interest of justice;
(C) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities to remove illegal seal applied upon the premises of the present petitioner on 07.10.2024 (at ANNEXURE-J) and further be pleased to direct the respondent authorities to permit the present petitioner to utilize the premises in question till proceedings under the Gujarat Regularization of Unauthorized Development Act, 2022 are concluded in the interest of justice;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of Page 2 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined the present case;"
3. The brief facts as referred in the petition are as under:
3.1 The issue involved is in relation to unauthorised construction on a residential Plot No. 42 B, on revenue survey Nos.73 to 75 admeasuring 200 sq. yards, which is a non-
agricultural land at village: Nana Mova, Ta. & Dist.: Rajkot. The petitioner, since was owner of plot No.42 B, prior to year 2010, sought development permission for 200 sq. yards area of plot of his ownership, and the same was granted on 16.11.2011. However, there was some land measurement dispute with regard to his neighbour namely Shakunatalaben Durlabhjibhai Khokhar. It was case of petitioner's neighbour that some unauthorised construction was made in 140 sq. yards of land which belongs to her. For the dispute of 140 sq. yards of land, Shakunatalaben Durlabhjibhai Khokhar preferred Special Civil Suit No. 220 of 2011. It is true that, the respondent corporation on account of pendency of Suit, denied development permission, however subsequently granted by an order dated 16.11.2011. Thereafter, issued notice dated 12.01.2013 under Section 260(1) of Gujarat Provincial Municipal Corporations Act, 1949 ("GPMC Act" for short) followed by an order under Section 260(2) of the GPMC Act dated 24.01.2013. The petitioner replied to the notice by Page 3 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined placing reliance on certain documents that the construction done is not unauthorised because entire land of 340 sq. yards is of the petitioner. The reply of the petitioner was not accepted. Thereafter, the suit was amicably resolved by settlement dated 25.07.2023 and accordingly decree was drawn. The petitioner is therefore, owner of total 340 sq. yards of land (200 sq. yards of plot No 42/13 + 140 sq. yards of plot No 42p which he purchased). The disputed 140 sq. yards of land, since was purchased by the petitioner, the question of unauthorised construction would not arise.
3.2. Despite that, the notice dated 21.03.2023 was belatedly issued (page 40). After issuance of this notice, the property was sealed on 07.10.2024 and the said order is subject matter of challenge before this Court.
4. Heard learned senior advocate Mr. Shalin Mehta assisted by learned advocate Mr.Meet Kakadia for the petitioner. Learned senior advocate submitted that after filing of the petition, the seal placed by the Corporation was directed to be opened by an order dated 09.12.2024. Since the seal was opened, the grievance of the petitioner relating to seal would not survive. However, during pendency of this petition certain developments have taken place. For the alleged unauthorised construction, the petitioner had preferred an application Page 4 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined seeking regularization of the alleged unauthorised construction. The said application was rejected by an order dated 21.12.2024 (page 117 Annexure R8). This order was passed during pendency of this petition, and therefore, since appeal is provided against the said order, the petitioner filed an appeal and the same is pending. Learned senior advocate Mr. Mehta submitted that if the appeal is decided in accordance with law, his grievance would be redressed.
5. Learned advocate Mr. Hriday Buch for the respondent corporation submitted that the entire petition is misconceived because the petitioner has suppressed many facts. The petitioner was not granted development permission on account of pendency of civil suit and this fact was communicated to him vide order dated 18.01.2010 (Annexure-R1 page 80). Suppressing the above fact, the petitioner preferred an application seeking development permission and revision of approved plan and the same came to be allowed on 08.03.2011 and 16.11.2011 respectively. Having come to know of this suppression, the corporation issued show-cause notice dated 31. 12.2011(Annexure-R2 page 81), as to why the construction may not be removed, since carried out without development permission. Further, on account of unauthorised construction simultaneous notice dated 31.12.2011, under section 260(1) of GPMC Act was issued (Annexure-R3 page 82).
Page 5 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined Order staying the construction was also served on 31.12.2011 (Annexure-R4 page 83). Despite that since the petitioner continued with the construction, one more notice dated 12.01.2012 u/s 260(1) was issued followed by an order under Section 267 of the GPMC (Annexure R5 and R6 page 84 and 85 respectively). Learned advocate submitted that since the unauthorised construction was not removed a communication dated 28.05.2012 (Annexure-R7 page 86) was served. In the meantime, neighbour Shakuntalaben filed Special Civil Suit No.22 of 2011, and in that suit proceedings, the order dated 30.05.2012, below exhibit -5 application was passed and became subject matter of challenge before this court in Appeal from Order no.208 of 2012, wherein vide order dated 16.08.2012, the A.O was not pressed on a statement that the petitioner herein will not make any construction on plot No. 42A, but will make construction on plot no.42 B subject to permission of the corporation. Subsequent to that an order dated 24.01.2013 under section 260(2) of GPMC Act (Annex. R12- page 106) was passed. From the tenure of the order dated 24.01.2013, it is evident that the said order refers to earlier notices issued, unauthorised construction done in plot No.42/A and also in the margin area, which is not permissible. Further, on account of non-removal of unauthorised construction, the petitioner was served with notice dated 04.09.2028(Annexure-R13 page 107). The petitioner replied to Page 6 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined the said notice vide reply dated 24.09.2018.
5.1 Learned Advocate Mr.Buch further submitted that thereafter based on certain documents, the petitioner requested for merging of two plots and thereupon fresh development permission, which was rejected by an order dated 21.03.2023 (Annexure-R15 page 112). Meantime, the suit was compromised and a decree dated 23.08.2023 was drawn. The petitioner thereafter filed a fresh online application dated 02.12.2023, seeking revocation of development permission and the said came to be rejected by an order dated 07.02.2024(Annexure- R17-page 115). Thus, without any development permission the construction was done. Thereafter, a fresh application dated 16.05.2024 under the provisions of GRUDA -2022 was filed, and the same was rejected on 21.12.204 (Annexure-R18 page 2117).
5.2. Learned Advocate submitted that one more aspect which needs to be considered is since earlier notices and orders were not followed by the petitioner a notice dated 06.08.2024 was issued (Annexure-H page 54), followed by order of seal dated 07.10.2024 (Annexure J page 64) was passed. Thereafter, pursuant to directions of his Court, the seal was opened.
5.3. On the aspect of application seeking regularization of Page 7 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined unauthorized construction, learned advocate Mr. Buch submitted that since the construction as per the records of the municipal corporation was subsequent to the cutoff date, the provisions of GRUDA, 2022 will not be applicable and therefore, the order dated 21.12.2024 was passed rejecting the application. Since the application itself is invalid, pendency of appeal would not make any difference, however, pendency of appeal is not in dispute.
6. Considered the submissions. It is noticed that this petition is filed with the prayer to direct the respondents to open the seal which was placed by the respondent corporation under order dated 07.10.2024. This Court, after considering the submissions of the petitioner that the property in question is a residential premises and except order dated 24.01.2013, no order was served to the petitioner, passed an order dated 09.12.2024, directing the authority to open the seal. Therefore, grievance of the petitioner as prayed for under prayer (A) stands satisfied.
6.1. At the same time, rejection of application of the petitioner seeking regularization of unauthorised construction filed under the provisions of GRUDA, 2022 is not in dispute and therefore, grievance of the petitioner as prayed for under prayer (B) also stands satisfied. However, from the order dated Page 8 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined 21.10.2024, it is evident that the application of the petitioner was rejected on the ground that provisions of GRUDA, 2022 are not applicable. Against the order dated 21.02.2024, appeal is preferred and the same is pending.
6.2. At this juncture, it is important to take note of certain sections of GRUDA, 2022, which are reproduced as under:
Section 2(j): "unauthorised development" means the development where, irrespective of ownership, no permission to use a building or a part thereof is obtained from the authority competent to give such permission, or having obtained the permission, the development is in contravention of the relevant law or of such permission.
Section 5- Application for regularization of unauthorised development "5. (1) At any time on or before the 30th September, 2022, a notice issued to an owner or occupier or any order issued or decision taken under the relevant law, except under the provisions of the Real Estate (Regulation and Development) Act, 2016, requiring such owner or occupier to remove or pull down or alter unauthorised development carried out shall be deemed to have stood suspended unless and until such notice, order or decision stands revived under sub-section (2) of section 6:
Provided that such provision shall not be applicable in case of development carried on land in respect of matters provided in sub- sections (1), (2) and (3) of section 8.
(2) Any applicant who has been served with the notice under the relevant laws as provided in sub-section (1), or not, may make an application in such form and in such manner as may be prescribed to the Designated Authority for Page 9 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined regularisation of any unauthorised development within a period of four months from the commencement of this Act.
Making an application shall be an obligation on part of owner/occupier:
Provided that in case where more than one owners or occupiers are availing the facility of unauthorised development in part or whole, all such owners or occupiers shall make an application jointly to the Designated Authority;
Provided further that the Designated Authority may after making such inquiry as it thinks fit, if satisfied, allow the lesser number of owners or occupiers to make an application.
(3) The above provision of sub-section (1) shall not be applicable to the notice issued to the owners or the occupiers under the Real Estate (Regulation and Development) Act, 2016."
6.3. Therefore, in the opinion of this Court, for making an application under Section 5 of GRUDA, 2022, there has to be "unauthorised construction" prior to the cut-off date and once this fact is established, either of the following conditions, need to be fulfilled: (i) Issuance of notice to an owner or occupier on or before the cut-off date; OR (ii) Issuance of any order on or before the cut-off date; OR (iii) Decision taken under the relevant law, on or before the cut-off date, with regard to the "unauthorised construction".
6.4. Further, sub-section (2) of Section 5 provides that any applicant who has been served with notice under the relevant law as provided in sub-section (1), or not, may make an Page 10 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined application for regularization of any unauthorised development within a period of four months from the commencement of this Act. Therefore, under sub-section (2) of Section 5 of GRUDA, 2022, irrespective of service of notice issued under sub-section (1), any applicant may make an application within four months from the commencement of Act.
6.5. Hence, in the opinion of this Court, for making an application under Section 5 of GRUDA, 2022, two requirements are to be satisfied by any applicant:
(1) There has to be "unauthorised construction" prior to the cut-off date;
(2) Only once the fact of an unauthorised construction is established, any notice/ order/ decision has to have been issued to owner or occupier with regard to unauthorized construction, irrespective of service of notice under sub-section (2).
6.6. Coming to the case at hand, it was pointed out by earned senior advocate Mr. Mehta that for alleged unauthorised construction, order dated 24.01.2013 was passed under Section 260(2) of the Act and therefore, the application made is a valid application if viewed as per the requirements mentioned Page 11 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined under Para 5.5 above. However, Mr. Buch is disputing the factum of there being an unauthorised construction prior to the cut-off date, as per the order dated 21.12.2024 which takes recourse to the available records (Page 117). Notwithstanding this, pendency of appeal is not disputed.
7. Considering the above facts and noticing that the appeal is pending against the order dated 21.12.2024, this Court deems it fit to issue the following directions:
(i) The appeal authority is directed to decide the appeal as expeditiously as possible, preferably within a period of 3 months from date of this order, keeping in mind the findings as stated in Para 5.5 above. The contentions of both the parties are kept open, more particularly to prove whether the alleged unauthorised construction was prior to the cut-off date or post thereof, since the same will be determine the applicability of GRUDA, 2022.
(ii) After determining the applicability of GRUDA, 2022 or otherwise, the appeal authority to pass a reasoned order in accordance with law and after providing equal opportunity to both sides to present their case.
(iii) Since directions are issued to decide the appeal in accordance with law, no coercive action shall be taken till the Page 12 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025 NEUTRAL CITATION C/SCA/16395/2024 JUDGMENT DATED: 01/04/2025 undefined decision on appeal is decided.
8. With this, the petition is disposed of. Rule made absolute. No costs.
(MAUNA M. BHATT,J) NAIR SMITA V. Page 13 of 13 Uploaded by NAIR SMITA V.(HC00186) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:31:10 IST 2025