IMPORTANT POINT
The rejection of prior regularization applications under the GRUDA Act negates claims for protection against demolition notices issued by the municipal corporation.

JUDGMENT :

(Mauna M. Bhatt, J.)

1. RULE. Learned Government Pleader Mr. G. H. Virk with learned advocate Mr. S. H. Virk for respondent Nos. 1 and 2 waives service of notice of Rule on behalf of respondent Nos. 1 and 2.

2. This petition is filed with the following prayers:

“(a) To admit and allow this petition

(b) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, declaring that in view of provisions of Sec. 5 of the Gujarat Regularization of Unauthorized Development Act, 2022 when application for regularization has been made under Sec.6 thereof, the notice for demolition issued by respondents remain suspended till the competent authority under the GRUDA Act finally decides the applications (Annexure-W) for regularization made by petitioners for the reasons stated in the memo of petition and in the interest of justice.

(c) Pending admission, hearing and final disposal of the present petition, Your Lordship be pleased to stay the execution, implementation and operation of order/notice dated 23.10.2018 passed by the respondent no. 2 under Sec. 260(2) of the GPMC Act (Annexure-O) and restrain the respondent nos. 1 and 2 from demolishing the building “Salman Avenue” constructed on the land bearing City Survey No. 5459, 5460, 6463 to 5468, Sheet No. 80 Jamalpur-III situated at Astodia Gate Area, Ahmedabad in view of application of regularization of construction made by petitioners under GRUDA Act (Annexure-W) as per Sec.5 of GRUDA Act for the reasons stated in the memo of petition and in the interest of justice.”

3. Pursuant to order dated 13.12.2024, affidavit filed by learned advocate Mr. Bharat Rao dated 16.12.2024 and reply filed by Respondent-Corporation in Civil Application No. 2 of 2024 in Special Civil Application No. 16579 of 2018 is taken on record. The facts in brief as referred in the petition are stated as under:

3.1 The Petitioners herein are owners and occupiers of flats/shops situated in Salman Avenue situated on the land bearing Survey No. 5459, 5460, 6463 to 6468, Jamalpur 3, Near Astodia Gate Area, Ahmedabad (hereinafter referred to as ‘subject property’). The said subject property is situated in the area of Dastoor Khan Mosque (at a distance of about 180 meters from the mosque), Near Astodia Gate Area, Ahmedabad. Dastoor Khan Mosque is a protected monument under the provisions of the Ancient Monuments and Archeological Sites and Remains (Amendment and Validation) Act, 1958 (for short ‘the Act, 1958’). It is submitted by the Petitioners that the subject property was developed by Moin Infrastructure LLP - Developer after taking necessary permissions under the provisions of law.

3.2 The details with regard to permissions sought by Developer for development/ construction of subject property is stated here under:

(a) The Developer obtained No Objection Certificate (NOC) for construction of commercial building from Archaeological Survey of India and the competent authority vide communication dated 10.01.2001 (Annexure- A page 30), granted permission, permitting construction of building up to height of 30 meters.

(b) Accordingly, an application with requisite fees was made by the Developer for approval of plan, however, plans were not approved and development permission was not granted.

(c) Since, the Developer could not construct the property, on account of city of Ahmedabad, being affected badly by earthquake of 2001, he made fresh application to Director of Archaeology, Gandhinagar seeking NOC for construction on the land in question. The competent authority vide order dated 10.04.2012 (Annexure-B Page 31), granted permission for construction for 15 meters total height.

(d) Accordingly, the Developer applied on 02.06.2015, to Respondent corporation for commencement certificate (Rajachitthi) for construction. The application dated 02.06.2015, refers to parking + four floor + star cabin + overhead water tank.

(e) The AMC accordingly granted permission dated