SHIVNAGAR CO-OPERATIVE HOSG. SOCIETY LTD vs STATE OF GUJARAT

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Guj) 84

Gujarat High Court
Judgename :AKIL KURESHI
SHIVNAGAR CO-OPERATIVE HOSG.SOCIETY LTD - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 16808 of 2004
Decided On : 02/08/2006

Advocates Appeared: N.V.SOLANKI, PARESH UPADHYAY, SIRAJ R.GORI, SUNIL S.JOSHI

Headnote:Point in Issue :
       Construction - Without permission - Regularisation - Order of - Sustainability - Finding as to.
       Head Note :
       Gujarat Municipalities Act, 1963 (Gujarat Act 34 of 1964) - Sections 150, 151, 155, 155(1) to 155(8) - Bombay Municipal Borough Act - Section 123 - Construction - Without permission - Regularisation - Order of - Sustainability - Finding as to - Admittedly respondents have added fourth floor to the building without permission - Chief officer of Nagarpalika mainly guided by the communication of the Collector and Director of Municipalities regularised the same - Surely it is the statutory power of the chief officer to consider regularisation and he has to be guided by the provisions made in the Act or by by-laws made thereunder - Unfortunately Collector without any authority had requested him to regularise the construction - That apart Chief Officer has not considered whether the construction was in conflict or in accordance with the rules and regulations governing the construction - Court, therefore, set aside the impugned order dated 14.05.2005 passed by Chief Officer and directed him to reconsider the whole matter in light of observations made by Court and pass appropriate order in accordance with law.
       Held :
       The Chief Office of the Nagarpalika has power under Section 155 of the said Act to consider regularisation of any construction, alteration, etc. made, of course as long as the same is such which can be legally permissible under the said Act or the bye-laws made thereunder which are time being in force or any order passed by the authority which has legal basis. Court is unable to countenance the contention of the petitioner that under Section 155 of the said Act, Chief Officer had no power altogether to consider regularisation of the construction in question. [Para 11]
       When the question of regularisation of construction put up by the Respondents No. 4 and 5 came up for consideration before the Chief Officer. Unfortunately and without any authority, the Collector requested the Chief Officer to approve the regularisation. Surely it is the statutory power of the Chief Officer under Section 155 of the said Act to consider regularisation. The Chief Officer has to be guided by the provisions made in the said Act and to examine whether the construction already put up deserves regularisation or not. Such discretionary powers were required to be exercised by the Chief Officer himself. The Collector neither had legal authority nor could have issued any such communication in the present case especially when question of change of user was yet to be decided by him. There is yet another aspect of the matter which will call for interference in the order passed by the Chief Officer. Perusing the impugned order passed by the Chief Officer, it becomes clear that he has been mainly guided by the communication of the Collector and Director of Municipality. Whether the construction in question is in conflict with the rules and regulations governing the construction or not has not been examined by the Chief Officer at all. Mechanically only upon recommendation of the Collector and Director of the Municipalities, be accepted the application of Respondents No. 4 and 5. This is Courts view could not have been done. Additionally, the Chief Officer regularised the construction when the Collector had not even allowed change of user of the land in question. [Para 12]
       Sum total of the legal and factual conclusions that Court have reached would be that the order passed by the Chief Officer dated 14.05.2005 is required to be and is hereby quashed. The Chief Officer shall take a fresh decision in accordance with law after considering all the aspects of the matter and in particular the question whether the construction in question is otherwise in conformity with all provisions contained in the said Act and by-laws made thereunder which are in force for the time being and thereafter, pass order as may be found appropriate in exercise of his discretionary power. If the petitioner raises any written objection to any regularisation being granted, same shall also be taken into account before passing the final order by the Chief Officer. [Para 14]
       Law Laid Down :
       Order passed by chief officer mechanically upon the recommendation of the Collector and Director of Municipalities cannot be sustained.
       Cases Law Analysis :
       Municipal Corporation, Rajkot vs. State of Gujarat & Ors., reported in 1979 (2) GLR 595 [Para 2];; Surat Borough Municipality vs. Ishvarlal Manchharam Bachkaniwala, reported in 1972 (13) GLR 946 [Para 10];; Nafisabanu Gulambhai Memon vs. Collector, reported in 40 (2) GLR 1438 [Para 10].-Relied on
       Conclusion :
       Court concluded that order passed by chief officer is not sustainable - It is required to be quashed and set aside with the direction to chief officer to take fresh decision in the matter in accordance with law.
       Decided in Favour of :
       Petitioner
       Petition Disposed of with Directions

( 1 ) IN the present petition, the petitioner Shivnagar co-operative Housing Society has challenged an order dated 14-05-2004 passed by the Chief Officer, Halol nagarpalika. The case has longish history. Recording only the relevant events, it would appear that in the petitioner-society there are four plots 48, 49, 50 and 51 held by the respondents no. 4 and 5 herein. It is not in dispute that a school has been constructed by the said respondents in the plots owned by them. Though the assertion of the petitioner is that such construction is situated in all four plots, respondents no. 4 and 5 contended that school building is situated only in plot no. 48 and 49 whereas on plot no. 50 and 51, their residential house is existing. (1) The case of the petitioner is that society is a co-operative Housing Society and "na Permission" was granted by Collector with a condition that only residential unit can be constructed on the land in the society, despite which the respondents no. 4 and 5 constructed a school on the plot belonging to the society which was alloted to them. (2) The petitioner had earlier approached this Court by filing Special Civil Application No. 10372/2003 challenging the order of the Collector granting change of user of the land in question. Learned single Judge of this Court disposed of the petition by order dated 06-08-2003. By the said order learned judge was pleased to quash and set aside the order passed by the Collector permitting the change of user of the land. The Collector was further directed to rehear the petitioner-society and decide the issue after giving opportunity of being heard. This was to be done within a period of three months from the date of receipt of writ of this Court. The respondents no. 4 and 5 who were not present before the Court when the order dated 06-08-2003 was passed, sought review of the said order. Misc. Civil application No. 1662/2003 seeking review was however, rejected by an order dated 14-11-2003. Letters Patent Appeal filed by the respondents no. 4 and 5 also failed, same was withdrawn on 15-07-2004. (3) While the remand proceedings for change of user were pending before the Collector, the question of regularisation of certain portion of construction of the school constructed by respondents no. 4 and 5 came up before Halol Nagarpalika. It appears that respondents no. 4 and 5 had already constructed ground floor and two other floors with the permission of the authorities. To this existing structure the fourth floor was added. This was without obtaining permission. The question of removal of such construction or its regularisation therefore, arose before the authorities. It appears that on 04-03-2004, the Collector Panchmahal addressed a letter to the Chief Officer of Halol nagarpalika requesting him to regularise the fourth floor constructed by respondents no. 4 and 5. Director of Municipalities also appears to have made such a recommendation vide his letter dated 23-09- 2003. (4) The Chief Officer of Halol Nagarpalika vide his impugned order dated 14-05-2004 regularised the construction of fourth floor of plot no. 48 and 49 put up by respondents no. 4 and 5 in exercise of power under section 155 (7) of the Gujarat municipalities Act (here-in-after referred to as "the said Act" ). He also ordered collection of fine from the said respondents. In the order it is clearly recorded that the Chief Officer has referred to a letter dated 04-03-2004 written by Collector, panchmahal as well as a communication dated 24-02- 2004 from the Director of Municipalities.

( 2 ) ON the basis of above factual aspects, learned advocate Shri N. V. Solanki for the petitioner submitted that the order passed by the Chief Officer is illegal and unlawful. That the same was passed at the behest of the Collector which is not permissible under the law. It was contended that the Collector had yet not decided the question of change of user of land in question. He however, recommended the regularisation of the

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2006 Supreme(Guj) 84

Gujarat High CourtJudgename :AKIL KURESHISHIVNAGAR CO-OPERATIVE HOSG.SOCIETY LTD - AppellantVersusSTATE OF GUJARAT - RespondentSPECIAL CIVIL APPLICATION 16808 of 2004Decided On : 02/08/2006

Gujarat High Court
Judgename :AKIL KURESHI
SHIVNAGAR CO-OPERATIVE HOSG.SOCIETY LTD - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 16808 of 2004
Decided On : 02/08/2006