IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
C.L. Soni, J.
Highness Hotel Private Limited - Appellant
Vs.
Ahmedabad Municipal Corporation and Ors. - Respondents
Special Civil Application Nos. 10689, 12992 of 2016 and Civil Application Nos. 6755, 7022 of 2016 in Special Civil Application No. 10689 of 2016
Decided On : 05-06-2017
Constitution of India - Article 226 - Bombay Provincial Municipal Corporation Act, 1949 - Gujarat Town Planning and Urban Development Act, 1976 - Illegal construction – Seeking removal of – Quashing and setting aside the order/decision dt. 23.5.2016 passed by the respondent No. 2 and the Rajachitthi/commencement letter issued by the respondent authority as well as the approval of maps and be pleased to direct the respondents to strictly comply with the provisions of law/GDCR, taking care of all the rights of the petitioner including qua the basic amenities and the respondents may kindly be directed to remove the illegal construction carried out by the respondent No. 5 on city survey No. 3285, more particularly on eastern northern side thereof & in violation of GDCR – Held, permitting illegal construction would not only be against the private safety but is also against the public safety and therefore, this Court has got wide powers under Article 226 of the Constitution of India to order demolition of the illegal construction even if the entire construction is over. The judgments cited are in the case of Ahmedabad Municipal Corporation v. Vijay Owners Association, reported in 2000 (3) GLH 510, in the case of Sarvesh Atulbhai Gohil v. Jamnagar Urban Development Authority and Ors. reported in 2014 (2) GLH 26 and other judgments on this issue. But, having gone through such judgments, the Court finds that unless contravention of the GDCR or any Rule for development of the building is found clearly established, the judgments cannot be applied. In the facts of the case, such judgments will have no application – No substance in the challenge made in the present petitions and the reliefs prayed therein cannot be granted in exercise of the powers under Article 226 of the Constitution of India. The petitions are therefore, dismissed. Rule is discharged. Interim relief, if any, stands vacated – Application disposed of
C.L. Soni, J.
1. In Special Civil Application No. 10689 of 2016 (to be referred as "the first matter"), the following prayers are made in paragraph No. 18:-
"(A) A writ of mandamus or a writ in the nature of mandamus or writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction may kindly be issued quashing and setting aside the order/decision dt. 23.5.2016 passed by the respondent No. 2 and the Rajachitthi/commencement letter dt. 3.3.2015 issued by the respondent authority as well as the approval of maps (Annexure A and B Colly) and be pleased to direct the respondents to strictly comply with the provisions of law/GDCR, taking care of all the rights of the petitioner including qua the basic amenities and the respondents may kindly be directed to remove the illegal construction carried out by the respondent No. 5 on city survey No. 3285, more particularly on eastern northern side thereof & in violation of GDCR.
(B) Pending hearing, admission and final disposal of the petition the respondent No. 1 to 3 may kindly be directed to initiate immediate action to get stop further construction on land city survey No. 3285 and to initiate action for removal of illegal construction carried out by the respondent No. 5 on City Survey No. 3285 and the respondent authorities may kindly be restrained from revising and granting any further permission to the respondent No. 5 in any manner, and the respondent No. 5 may also kindly be restrained from making further construction on the basis of the alleged commencement letter dt. 3.3.2015 in the manner detrimental & damaging to the essential amenities & structure as well as the rights of the petitioner, and also be restrained from creating any third party interest qua the construction, in the interest of justice.
(C) Pending admission, hearing this Hon'ble Court may kindly be pleased get the site situation inspected through independent agency acquainted having technical knowledge with regard to construction on the laws pertaining to it, in the interest of justice.
(D)......"
2. In Special Civil Application No. 12992 of 2016 (to be referred as "the second matter"), the following prayers are made in paragraph No. 17:-
"(A) A writ of mandamus or a writ in the nature of mandamus or writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction may kindly be issued quashing and setting aside the approval of maps and Rajachitthi/ commencement letter dt. 3.3.2015 issued by the respondent authority (Annexure A Colly) and be pleased to direct the respondent authorities to strictly comply with the provisions of law/GDCR, taking care of all the rights of the petitioner including qua the basic amenities and the respondents may kindly be directed to remove the illegal construction carried out by the respondent No. 6 on the basis of the commencement letter/rajachitthi dt. 3.3.2015 on city survey No. 3285 & adjacent land in violation of GDCR, AMASR Act and provisions of other laws relating to construction.
(B) Pending hearing, admission and final disposal of the petition the respondent authorities may kindly be directed to initiate immediate action to stop further activities & construction on the basis of the commencement letter/rajachitthi in question dt. 3.3.2015 qua/on land city survey No. 3285 & adjacent land thereto and be pleased to restrain the respondent authorities from revising and granting any further permission to the respondent No. 6 in any manner and the respondent No. 6 may also kindly be restrained from making further construction on the basis of the alleged commencement letter dt. 3.3.2015, in the manner detrimental & damaging to the essential amenities & structure as well as the rights of the petitioner, and the respondent authorities may kindly be directed to initiate action for removal of illegal construction carried out by the respondent No. 6, in the interest of justice.
(C) Pending admission, hearing
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