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2024 Supreme(Online)(GUJ) 26649
HIGH COURT OF GUJARAT
MRS. JUSTICE MAUNA M. BHATT, J
HARUNBHAI KADERBHAI MALKANI – Appellant
Versus
CHAIRMAN GUJARAT HOUSING – Respondent
R/SPECIAL CIVIL APPLICATION NO. 10681 of 2024
MR AZIZ AN ALVI, MR MOHAMMADZAID M SHAIKH, MR G.H.VIRK, MS SIMRANJIT VIRK, MS NENCY SHETH
Unauthorized construction on government land cannot be regularized under the GRUDA Act, and leaseholders lack ownership rights to challenge such notices.
Headnote:(A) Gujarat Housing Board Act, 1961 - Gujarat Regularisation of Unauthorised Development Act, 2023 - Notice issued for removal of unauthorized construction of Masjid/Ibadat Khana on common plot - Construction was done without permission and not for a permitted purpose - Petition rejected as the petitioner is a leaseholder and lacks ownership rights. (Paras 1, 2, 3, 4, 5, 10, 11)
(B) Ownership and Leasehold Rights - The petitioner, being a leaseholder, does not possess ownership rights over the land, thus cannot claim regularization under the GRUDA Act. (Paras 6, 7, 8)
(C) Unauthorized Construction - Regularization of unauthorized development is not permitted on land belonging to a statutory body, as per Section 8 of the GRUDA Act. (Paras 9, 10)
Facts of the case:
The petitioner challenged a notice directing the removal of unauthorized construction of a Masjid/Ibadat Khana built in 1989 on a common plot in a housing colony, asserting it was constructed with resident consent.
Findings of Court:
The court found that the Masjid/Ibadat Khana was unauthorized as it was built without permission on land owned by the Gujarat Housing Board, and the petitioner, as a leaseholder, lacked the authority to regularize the construction.
Issues: The main issues included the legality of the notice for demolition and the applicability of the GRUDA Act to the unauthorized construction.
Ratio Decidendi: The court ruled that the construction was unauthorized as it violated the provisions of the GRUDA Act, which prohibits regularization of unauthorized developments on government-owned land.
Result: Petition rejected.
ORAL ORDER
1. This petition is filed challenging the notice dated 10.07.2024 issued by respondent No. 2- Gujarat Housing Board, under which the petitioner was directed to remove unauthorized construction of Ibadat Khana, situated in the land/ common plot of the Memon Colony 192 LIG in the vicinity of Bharat Nagar of Bhavnagar.
2. Facts in brief, as referred in the petition, are as under:
The petitioner is a resident of 192 LIG colony constructed and developed by respondent No.2 – Gujarat Housing Board (for short “GHB”) at Bhavnagar. Subsequent to its development as residential premises, the same at the relevant time was allotted to various persons who are at present residents of this colony, wherein, the petitioner is one of the residents in the said colony.
2.1 The colony is situated far from the city of Bhavnagar and respondent No.1 had at the relevant time allotted houses to present occupants, by entering into lease deed. It is the case of the petitioner that the said colony was constructed in the year 1980 and a Masjid/ Ibadatgah was constructed in the year 1989. The said Masjid/ Ibadatgah was constructed with the consent of the residents of the said colony as there was no place of worship available to the residents of the colony in the nearby area. The Masjid was constructed after passing of resolution by the members of the colony and only for the purpose of offering prayers.
2.2 After construction of Masjid/ Ibadatgah in the year 1989, Respondent Nos.2 and 3 issued Notice dated 10.07.2024, to the colony directing to demolish Masjid/ Ibadatgah. Vide Notice dated 10.07.2024, seven days’ time was given to remove unauthorized construction failing which, it was directed to be demolished by the authority. Aggrieved by the Notice dated 10.07.2024, present petition is filed.
3. Learned advocate for the petitioner submitted that as stated in the petition, the petitioner is a resident of the Memon Colony 192 LIG in the vicinity of Bharat Nagar at Bhavnagar. The petitioner is a lease holder in the subject colony. By passing the resolution, Masjid/ Ibadatgah was constructed in the common plot with the consent of residents of the said colony for religious purpose. The purpose for this construction was because there was no place of worship available for their prayers. It is submitted that for Municipal Taxes, Electricity Bill and other taxes are paid on regular basis by the residents for their respective units and therefore they are the owners. In support of his submission, learned Advocate placed reliance on bills of electricity and taxes paid by them to justify the ownership. The decision taken to construct the Masjid/ Ibadatgah on the common plot of the property, was taken by passing a resolution, which is on record at Annexure “B”. Learned Advocate submitted that considering their ownership as also the construction done after passing of the resolution, action of the respondents by issuing Notice being unjust and illegal, deserves to be quashed and set aside. Most importantly, the colony is ready to make an application seeking regularization of illegal construction by payment of impact fees and penalty. Regularization of construction is permissible under the Gujarat Regularisation of Unauthorised Development Act No.1 of 2023 (for short “GRUDA Act”).
4. Learned Government Pleader Mr. G.H. Virk on advance copy, appeared on behalf of respondent Nos.2 and 3 and submitted that respondent No.2 is a statutory body constituted under the provisions of the Gujarat Housing Board Act , 1961. The petitioner is a lease holder of the subject property and ownership lies with the Gujarat Housing Board and only by developing the land, the colony was constructed in the year 1980 and thereafter, allotted by way of lease agreement to the members of the colony. From the petition, it is not clear as to who has constructed the said Masjid/ Ibadatgah in the year 1989 and under what capacity. From the averments made in the petition, it is evident that the said
