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4. The respondents have contested the petition by filing affidavit-in-reply. Mr. RS Gandhi, Senior Town Planner, Gandhinagar, has filed affidavit which is on behalf of respondent No. 1 " State, not disputing the fact that initially a plot No. 493/2 situated in Sector No. 22, Gandhinagar township admeasuring 181.50 sq. mtrs. was purchased by Ishvarsinh Baldevsinh Page 196 Vaghela in auction. According to him, the sale was attached with a condition that it was to be used only for residential purpose. He has stated that in clear violation of the said condition, commercial building has been constructed on the said plot. It is his say that the prayer of the petitioner cannot be accepted because the Act was meant for one year initially, but thereafter it was extended upto 2002 and lastly upto the year 2003. He has stated that since 2003 the Act has ceased to exist. It is his say that the petitioner cannot bank upon the provisions of this Act to get the unauthorized construction regularized. He has also produced notification showing the last extension which is dated 2nd June, 2003 extending the period prescribed for issuance of notice under Section 3(2) of the Act upto 3rd September, 2003. He has averred that after 3rd September, 2003 no application for regularization of unauthorized construction can be entertained and now there is no question of appointing Appellate Authority under the provisions of Section 5 of the Act. Another affidavit has been filed by Natubhai Mevada on behalf of respondent No. 2. He is Junior Town Planner in the office of respondent No. 2. He has narrated factual aspects of the case. He has stated that upon purchase of the plot, the petitioner applied for permission to construct residential house and after scrutiny of the plans, etc. the Competent Authority accorded its approval on 12th May, 1997. The construction proposed to be carried out comprised basement, ground floor, first floor and second floor and a cabin to cover the staircase. The total construction was to be of 185.49 sq. mtrs. after leaving the marginal land, etc. It is his say that instead of residential premises the petitioner has constructed commercial building containing 4 shops in the basement with shutters, 7 shops on the ground floor with shutters, 5 shops on the first floor with shutters and one hall on the second floor and in view of the same, the petitioner was served with notice for demolition as well as to pay the penalty He has agreed with the stand of respondent No. 1 that the Act has ceased to exist and the prayer of petitioner cannot be granted. He has further averred that merely because the final development plan for the area has been approved by the State Government on 16th February, 2004, the construction of the petitioner cannot be regularized. It is his say that though in the judgment dated 7th July, 2004 respondent authorities were required to remove the unauthorized construction, it has not become possible to do so because the petitioner has been filing litigation one after the other. It is his say that the provisions of the Act are not applicable to the area under Gandhinagar and hence there is no question of appointing Appellate Authority under the Act.

11.1. The scheme of the Act further shows that if the designated authority is of the opinion that a person has at any time before 22nd November, 2000 carried out any unauthorized development in urban development area or development area and that such unauthorized development requires Page 209 regularization, subject to the provisions of Section 4, he will issue notice to such person within such period and in such manner that may be prescribed requiring the concerned person to comply with certain requirements. Clause (ii) of sub-section 2 (a) of Section 3 prescribes that it will be lawful for the designated authority to form such opinion either on the basis of the information available with it or from an application made to it by a person who has carried out unauthorized construction. Therefore, either on the information received by it or on the application submitted by the concerned person referred to above, if the designated authority is of the opinion that notice is required to be issued, it will do so in accordance with the provisions made with regard to the time limit and the manner in which it has to be issued. From clauses (a) and (b) of sub-section (2) of Section 3 it becomes clear that unless the requisite opinion is formed, the designated authority is not required to issue notice. Further while forming the opinion it has also to keep in view the provisions of Section 4 and unless it finds that the case is fit for issuance of notice it will not do so. First part of sub-section (5) states where no notice is served upon a person under sub-section (2) within the period prescribed under that sub-section, would also mean that the authority is not required to issue notice in each and every case of unauthorized construction and it has to exercise the discretion keeping in view the facts and circumstances of each case. However, the fact remains that even when an application is made by a person for regularization of unauthorized construction to the designated authority, it is not incumbent upon it to issue notice. It is only when it forms the opinion on the basis of the information supplied in such application satisfying the requirements under sub clauses (i) and (ii) of sub-section (2) (a), it will issue notice. Rule 5 of the Rules prescribes that whenever a person who desires to apply on his own for regularization of unauthorized development, shall make an application to the designated authority in Form SC along with Form SD and the designated authority while considering such application shall follow the procedure as prescribed in Rules 3 and 4. Rule 3 deals with notice for regularization of unauthorized development; while Rule 4 deals with notice in case where unauthorized development is carried out in parking space and sanitary facility.

11.4. It may also be noted here that Section 5 of the Act deals with appeal, sub-section (1) thereof provides that any person aggrieved by the notice served upon him or notice published under sub-section (2) of section 3 may within 60 days from the date of receipt or as the case may be, the publication of the notice, prefer an appeal to an Appellate Officer. Proviso to sub-section (1) enables the Appellate Officer to condone the delay caused in filing appeal after prescribed period of limitation. Sub-section (2) provides that the Appellate Officer may after giving the appellant an opportunity of being heard, pass an order modifying or cancelling the notice as expeditiously as possible. These two sub-sections, therefore, clearly show that only if a person is aggrieved by the notice served upon him or published under sub-section (2) of section 3, he can approach the Appellate Officer by filing appeal within prescribed time limit. The Appellate Officer is empowered to grant such person hearing and also to pass an order modifying or cancelling the notice. Again these provisions clearly show that it is only the service or publication of the notice that can be challenged in appeal and the Appellate Officer is only conferred the power to modify or to cancel such notice and nothing further than that. In our opinion, therefore, the decision of the designated authority not to issue notice and thereby refuse regularization cannot be challenged before the Appellate Officer. Even in Form A which is prescribed for notice for regularization of unauthorized development in accordance with Rule 3, it is stated that if the concerned person is aggrieved by the said notice, he could prefer an appeal to the Appellate Officer appointed under Section 5 of the Act within a period of 60 days from the date of the receipt of the said notice. Thus, there is no scope for any doubt that it is only the notice that can be challenged in appeal and the relief that can be granted by the Appellate Officer in such appeal can be of modification or cancellation of notice alone. At this juncture it would also be necessary to refer to provision of sub-rule (4) of Rule 3, which Page 211 states that where a notice is served under sub-rule (1) and procedure is concluded under sub-rules (2) and (3) and the person intends to comply with requisition specified therein and has made a request in writing to the designated authority to allow payment by way of installment, the authority may pass such order as it demands for payment of such fees. Thus, sub-rule (4) shows that after first three stages, namely the service of notice under sub-rule (1) and compliance of procedure under sub-rules (2) and (3) are over, the designated authority can pass appropriate order with regard to payment. Thus two distinct terms, namely notice and order have been used in the provisions of the Act as well as the Rules. There is no provision in the Act which can enable a person whose application for regularization is rejected to challenge such order of the designated authority before the appellate officer. May be that the object of this legislation is to regularize unauthorized construction, but the discretion to refuse regularization is also conferred upon the designated authority. Decision with regard to regularization can only be taken by the designated authority after taking into consideration the suggestions and objections that may be received by it pursuant to the publication of the notice under sub-section (2) of section 3 and keeping in view the provisions of Section 4 of the Act and also after consulting the Committee and receiving its opinion whether the person has complied with fire safety measures and structural stability requirements as per the National Building Code and the Indian Standard Specifications. Only thereafter it will issue certificate under sub-section (3)(a) and the development will then ceased to be unauthorized one. It is not required to regularize each and every unauthorized construction. Therefore, when section 5 prescribes appeal against notice alone, there is no scope for any other meaning and to extend the provision to, or construe the same in the manner as would, include even order passed on application seeking regularization by owner or occupier of unauthorized construction, refusing the regularization. We are, therefore, of the opinion that when the regularization is refused on application made in accordance with Rule 5, it cannot be subjected to further challenge. The words of provisions of Section 5 are very clear and they are susceptible to only one meaning and no alternative construction is reasonably open. When that is so, the effect must be given to such provision irrespective of the consequences. It has been observed by the Apex Court in the case of Commissioner of Income Tax v. Budhraja & CO. as under :-

12.1. We have already opined that even upon an application submitted by a person who desires to seek regularization of unauthorized construction notice has to be issued under sub-section (2) of section 3 if in the opinion of the designated authority requirements of clauses (i) and (ii) of said sub-section are satisfied. Thus, when the application is preferred by such person after the expiry of the time limit prescribed for issuance of notice, it becomes meaningless since the designated authority ceases to have any power to issue notice under sub-section (2) of section 3. In the instant case, the application has been made almost after 10 months of the expiry of the last extension to issue notice under Section 3(2) of the Act. Thus, even if it is assumed that the Act is applicable to area under respondent No. 2, the said application could not have been entertained by respondent No. 2 in the capacity of the designated authority. It is true that even otherwise also by order dated 24th September, 2004, the Junior Town Planner of respondent No. 2, after taking into consideration various documents including orders of this Court, the notifications and the orders of the Government and the different authorities, has come to the conclusion that in view of Section 4(1)(ii) of the Act regularization cannot be granted because the same has been utilized for purpose other than the specific purpose for which it was allotted by respondent No. 1 to its original owner and which was purchased on the same terms and conditions by the petitioners.