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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, ILESH J. VORA, JJ.
Jagatbhai Hasmukhlal Parikh – Appellant
Versus
State Of Gujarat – Respondent
R/Writ Petition (PIL) No. 141 of 2020
Decided on : 18-03-2021
Constitution of India,1950 - Articles 21, 32 and 25 - Bombay Provincial Municipal Corporation Act, 1949 - Sections 478 and 260(1) - T.P. Act - Sections 29, 22, 12(2)(m) and 13 - Gujarat Town Planning and Urban Development Act, 1976 - clause (ii) of sub section (1) of section 29 - Urban Development Authority - Section 5 - Sought permission for construction of residential building - Public Trusts - Construction of the Derasar - Writ-applicants are residents of city controversy revolves around putting up construction a residential Cooperative Housing Society Limited - Gujarat Town Planning and Urban Development Act, 1976 - Gujarat Provincial Municipal Corporations Act as well as Comprehensive Development Control Regulations, 2017 - Construction of is at instance of respondent - Respondent no.3 is a Trust registered under the Bombay Public Trusts Act, 1950 - Plot in question came to be purchased Trust made it clear from day one onwards that they had purchased the plot with an intention to construct respondent no.3 – Trust started putting up the construction on referred residential plot without obtaining any valid permission from respondent – Corporation – Held, Court do not find any particular reason assigned for granting permission in exercise of power under Section 29(1)(ii) of T.P. Act - There is no public interest involved in grant of such permission - Court have reached to conclusion that permission granted by State Government is susceptible to complaint that the same is not in accordance with provisions of Gujarat Town Planning and Urban Development Act, 1976, Gujarat Town Planning and Urban Development Rules, 1979, and the Gujarat Comprehensive Development Control Regulations, 2017 – Court’s view that if we quash and set-aside permission, then as a consequence of the same, entire construction will be rendered unauthorized and would be liable to be demolished - It is not in dispute that the construction of Derasar has been completed - At this point of time, we do not want to go to extent of telling authority concerned to pull down the entire structure – Court decline to grant any further relief to the writ-applicants – Court have taken pains to elaborately examine and explain provisions of Act, the Rules and the Regulations with only one object that in future as and when occasion arises for State to exercise its powers under Section 29(1)(ii) of the T.P. Act - Court expect State to frame appropriate guidelines or appropriate regulations for purpose of exercise of power under Section 29 of the T.P. Act - Once such guidelines are framed keeping in mind object of Act and if permissions are granted in accordance with such guidelines, then there will be no scope for any person to redress any grievance as regards grant of such permission - Court may only observe that no person or any religious sect should go before State Government and make a request to grant permission to construct any religious structure dehors the provisions of the Act – Ordered Accordingly.
JUDGMENT :
J.B.PARDIWALA, J.
1. This writ-application has been filed in public interest seeking the following reliefs :
(B) The Hon’ble court may be pleased to direct the respondent authorities to remove the construction put up on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in Town Planning Scheme No.6 in Paldi at Ahmedabad.
(C) Pending admission, hearing and final disposal of this petition, to direct the respondent no.3 – trust herein not to further proceed with the construction/erection or any other such associated activity on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in Town Planning Scheme No.6 in Paldi area at Ahmedabad and further direct the respondent Corporation – respondent no.2 to ensure that no further construction/erection or other such associated activity may continue on the Final Plot No.489 (Residential Plot No.34 of Vasantkunj Society) located in Town Planning Scheme No.6 in Paldi area at Ahmedabad.
(D) To award the costs of this petition.
(E) To pass such other and further reliefs in the interest of justice be granted.”
2. The facts giving rise to this public interest litigation may be summarised as under :
3. The writ-applicants are residents of the Ahmedabad city. The controversy revolves around putting up construction of a ‘Jain Derasar’ in a residential society, namely ‘Vasantkunj Cooperative Housing Society Limited” situated at Paldi, Ahmedabad.
4. The construction of the Jain Derasar is being made on the Final Plot No.489 (Tenement No.34) of the Society referred to above.
5. According to the writ-applicants, the said construction is contrary to and in violation of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as, the ‘T.P. Act’), the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as, the ‘BPMC Act’) as well as the Gujarat Comprehensive Development Control Regulations, 2017 (hereinafter referred to as, the ‘GCDCR, 2017’).
6. It is pointed out by the writ-applicants that the construction of the Derasar is at the instance of the respondent no.3. The respondent no.3 is a Trust registered under the Bombay Public Trusts Act, 1950. The plot in question came to be purchased by the Trust on 11th February 2003. The Trust made it clear from day one onwards that they had purchased the plot with an intention to construct a Derasar. The respondent no.3 – Trust started putting up the construction on the above referred residential plot without obtaining any valid permission from the respondent – Corporation.
7. The writ-applicant no.2 raised objections for the first time in the year 2005 by issuing a statutory notice. However, as no heed was paid and the Trust proceeded with the construction, a writ-application being the Special Civil Application No.23783 of 2005 came to be filed in this Court.
8. On 19th December 2005, this Court passed the following order in the Special Civil Application No.23783 of 2005 :
The respondent No.1 to explain as to why so far no action is taken in the matter.
Further construction be stayed forthwith. It will be for the respondent No.1 – Corporation to see that further Construction is not allowed.
Direct service today itself is permitted.”
9. Thereafter, on 28th December 2005, the following order was passed :
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