Point of Law: Actions would be taken to verify that the existing structure is in accordance with the existing Development Permission and only thereafter, Building Usage Permission would be granted.

ORDER :

1. Heard learned advocate Mr. Kirtan Mistry for the petitioner, learned advocate Mr. Bhavesh Chokshi for the respondent no.3, learned advocate Mr. H.S. Munshaw for the respondent no.2, learned advocate Mr. P.Y. Divyeshvar for the respondent no.4 and learned AGP Mr. Ishan Joshi for the respondent – State through video conference.

2. By this petition under Article 226 of the Constitution of India, the petitioner prayed for the following reliefs :

“(A) To admit and allow the present petition;

(B) To quash and set aside the impugned order i.e. commencement letter (Rajachitti) dated 20.03.2020 issued at the behest of Ahmedabad Municipal Corporation to the respondent no.3 for constructing and occupying on the final plot No.933/9 + 933/9 + 933/10, T.P. Scheme No.3, Elisbridge, Western Zone, Ahmedabad (at Annexure-A).

(C) To stay the execution, implementation and operation of the impugned order i.e. commencement letter (Rajachitti) dated 20.03.2020 issued at the behest of Ahmedabad Municipal Corporation to the respondent no.3 for constructing and occupying on the final plot No.933/9 + 933/9 + 933/10, T.P. Scheme No.3, Elisbridge, Western Zone, Ahmedabad.

(D) To direct the respondent no.2 in consonance with the respondent no.5 – authority to conduct a fresh measurement from the protected monument to the disputed parcel of land in accordance with law.

(E) To grant such other and further relief as may be deemed fit and proper in the interest of justice.”

3. The brief facts of the case are as under :

3.1 The petitioner is a resident of Bhagwan Nagar Chali, Paldi, Ahmedabad.

3.2 Respondent no.3 – Yashvi Infra Build filed an application before respondent no.2Ahmedabad Municipal Corporation to get the permission for construction on the Final Plot No.933/8 + 933/9 + 933/10 situated at T.P. Scheme No.3, Ellisbridge, Western Zone, Ahmedabad. Respondent no.2 granted permission (rajachitti) on 28.6.2017.

3.3 The petitioner filed an application before respondent no.2 pointing out that the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short “the Act, 1958”) are violated while granting the permission to respondent no.3 vide rajachitti dated 28.6.2017. The petitioner pointed out that mandatory distance of 100 mtrs, from a protected heritage monument namely, Rani mosque was not kept while granting permission by respondent no.2 and hence, such rajachitti was required to be withdrawn.

3.4 It appears that respondent no.2 authority thereafter stayed the permission granted to respondent no.3 and by letter dated 14.1.2019 informed the competent authority, State of Gujarat to examine and undertake necessary steps.

3.5 It appears that the competent authority, State of Gujarat referred the issue to National Monument Authority of India, New Delhi and thereafter, vide order dated 30.10.2019 in its 250th meeting, it was decided by the said authority that no construction would be allowed in the prohibited area under any circumstances.

3.6 It is the case of the petitioner that respondent no.3 did not stop the construction undertaken by him and therefore, the petitioner was again constrained to inform respondent no.2 Corporation by preferring various applications.

3.7 It appears that respondent no.2 issued another intimation dated 9th December, 2019 to the competent authority, State of Gujarat, indicating the fact that dispute with regard to the land in question would not come within the jurisdiction of respondent no.2 authority and therefore, necessary steps should be taken by the competent authority under the Act, 1958.

3.8 It appears that National Monument Authority of India respondent no.4 reconsidered the case of respondent no.3 in its 256th Meeting rejecting the permission to construct and directed the ASI to place the report of the distance mismatch within one month before the authority.

3.9 According to the petitioner, respondent no.2 by misinterpreting the resolution of respondent no.4 granted No Objection Certificate to respo