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MCA/2692/2010 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR EXTENTION OF TIME No. 2692 of 2010
In
MISC.CIVIL
APPLICATION - FOR REVIEW No. 1893 of 2010
In
CIVIL APPLICATION No. 6193 of 2010
With
SPECIAL
CIVIL APPLICATION No. 14539 of 2010
With
SPECIAL
CIVIL APPLICATION No. 14724 of 2010
With
SPECIAL
CIVIL APPLICATION No. 812 of 2011
With
SPECIAL
CIVIL APPLICATION No. 5760 of 2011
With
SPECIAL
CIVIL APPLICATION No. 14604 of 2010
With
SPECIAL
CIVIL APPLICATION No. 926 of 2011
With
SPECIAL
CIVIL APPLICATION No. 10488 of 2008
With
SPECIAL
CIVIL APPLICATION No. 14657 of 2010
With
SPECIAL
CIVIL APPLICATION No. 809 of 2011
With
SPECIAL
CIVIL APPLICATION No. 24347 of 2007
With
SPECIAL
CIVIL APPLICATION No. 5263 of 2009
With
SPECIAL
CIVIL APPLICATION No. 14723 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16884 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16577 of 2010
With
SPECIAL
CIVIL APPLICATION No. 15611 of 2010
=========================================================
AHMEDABAD
MUNICIPAL CORPORATION - Applicant(s)
Versus
SHIVLAL
K PUROHIT & 8 - Opponent(s)
=========================================================
Appearance
:
MR
SN SHELAT WITH MRS VD NANAVATI
for
Applicant(s) : 1,
MR AMIT M PANCHAL for Opponent(s) : 1,
MR
KAMAL TRIVEDI, ADVOCATE GENERAL with MR PK JANI, GOVERNMENT PLEADER
with MS SANGEETA VISHEN, AGP for Opponent(s) : 2,
None for
Opponent(s) : 3, 9,
MR HS MUNSHAW for Opponent(s) : 4,
MR
PRANAV G DESAI for Opponent(s) : 5,
MR
DHAVAL G NANAVATI for Opponent(s) : 6,
(MR RM CHHAYA) for
Opponent(s) : 7,
MR MEHUL SHARAD SHAH for Opponent(s) :
8,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 09/05/2011
COMMON
ORAL ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J.MUKHOPADHAYA)
Learned
counsel for C.G.Road Shop Owners’ Association and Jewellers’
Association and other affected parties brought to the notice of the
Court a Bill, namely, “Gujarat Regularisation of Unauthorised
Development Bill, 2011” passed by the State Legislature
where-under the Legislature intends to make provisions for
regularisation of unauthorised development in developed areas in the
State on fulfillment of certain conditions as mentioned therein.
Learned
Advocate General appearing on behalf of the State submits that the
Bill has now been forwarded to Her Excellency, the Governor of the
State for approval. It is expected that a decision would be taken on
an early date.
Learned
counsel for the C.G.Road Shop Owners’ Association and other
Association similarly affected persons submitted that the owners of
the building/shop premises or part of the premises, whoever is
eligible under the proposed Regularisation Act, 2011 for
regularisation of their building/shop premises are ready to furnish
undertaking for the present before the Commissioner, Ahmedabad
Municipal Corporation, that they will take rectification measures and
fulfill all the conditions as may require for regularisation of their
respective buildings or part premises. It is also submitted that some
time should be allowed to the owners to await for the enactment of
the proposed Regularisation Act, 2011 and further time be allowed in
their favour in terms with the time as stipulated in the proposed
Regularisation Act, 2011 for making application for regularisation of
their buildings or part of the premises. Moreover, if one or other
owner of the building or premises, etc. who have violated any
provision of law, whether he is a party before this Court or not, or
whether he is a petitioner or respondent before this Court or not,
and who want the advantage of the proposed Regularisation Act, 2011,
they will also file undertaking before the Corporation that they will
fulfill the conditions and apply within the time as may be framed
under the Act.
Learned counsel appearing on behalf of the Association and other
affected persons further contended that it is not possible for all
the owners or part of the premises to jointly apply, as suggested by
counsel for the Corporation. Therefore, they should be allowed to
furnish their independent undertaking before the Commissioner,
Ahmedabad Municipal Corporation. After enactment of the proposed
Regularisation Act, 2011 they will apply in accordance with the
provisions of the Act.
Mr.S.N.Shelat,
learned senior counsel appearing on behalf of the Corporation
submitted that this Court may pass an order, inter alia, for
suspension of sealing of the units, suspension of demolition of
unauthorized construction undertaken by the Municipal Corporation and
for a further direction to open seal. But, such order be passed on
the following conditions:-
“That
the undertaking be filed;
I
By the owner, if the building is owned by the individual owner.
(a)By
joint owners or co-sharers, if they jointly own or co-share the
building/property.
(b)
All the occupants of the building be directed to file undertaking in
view of the following:
(c)
Building Use Permission is granted for the entire building.
(d)
FSI is considered on the basis of area occupied by the entire
building.
(e)
Parking space is to be determined on the basis of area occupied and
used by the building.
(f)
In absence of all occupants it may be difficult for the department to
meet with the regularisation process.
II
If the Act and Rules come into force then undertaking as suggested by
the petitioner i.e. by the owner or by some of the occupants can be
considered in accordance with the provisions thereof.
III
In the event of the Act and the Rules not coming into force on the
expiry of three months from the date of reopening of the seal, the
Town Planning Department can reapply the seal.
IV
In the event of the Act coming into force prior to three months the
time frame as provided by the Act and the Rules can be considered by
the applicants and in the meanwhile no sealing operation be
undertaken. In the meanwhile, rectification measures as required
under the Act and necessary payment of fees as required under the Act
may be paid by the applicants.
V
In the event the application for regularization is rejected the seals
can be reapplied subject to the rights of the aggrieved party to
challenge the rejection of the application.
VI
While reopening the seal the applicants are required to pay
administrative charges to the Municipal Corporation.”
Mr.Amit
Panchal, appearing on behalf of the petitioner in Special Civil
Application No.10488/2008 has filed an affidavit today and has
vehemently opposed the prayer and contended that in absence of any
Regularisation Act at present, the Court should not accept the
undertaking intended to be filed by C.G.Road Shop Owners’ Association
or Jewellers’ Association or other association or its members or
other affected persons before the Corporation.
Mr.Mihir
Thakore, learned senior counsel appearing on behalf of the
Association and affected persons filed a format of undertaking, which
reads as follows :
“I,
Gaurav S.Shah, do hereby undertake as under:
I
am the Authorized Signatory of Simurg Appliances Pvt. Ltd, having
its registered office at B-6 Shri Krishna Centre, Near Mithakali Six
Roads, Navrangpura, Ahmedabad 380 009. I say that Simurg Appliances
Pvt. Ltd owns and occupies part of the Upper Basement at Shri
Krishna Centre, Near Mithakali Six Roads, Navrangpura, Ahmedabad 380
009. I say that the upper basement portion of the premises of the
Private Limited Company have been sealed by the Ahmedabad Municipal
Corporation on 20th December 2010. I say that Simurg
Appliances Pvt. Ltd at its Board Meeting held on 2nd May
2011, by resolution has authorised me to file this undertaking and
accordingly I am filing this undertaking for and on behalf of Simurg
Appliances Pvt. Ltd and the same shall be binding on Simurg
Appliances Pvt. Ltd. Copy of the Resolution is annexed hereto and
marked Annexure-1.
I
say that the Gujarat Legislative Assembly has passed the Gujarat
Regularization of Unauthorized Development Bill, 2011 on 28.03.2011
and the Bill is awaiting the assent of the Governor. I say that if
Gujarat Regularization of Unauthorized Development Bill, 2011 is
enacted as an Act, my aforesaid premises, even if considered
unauthorized, is liable to be regularised under such Act. I hereby
undertake to Ahmedabad Municipal Corporation that on such Act coming
into force, I shall make an application for regularisation thereof,
within six months from the Act coming into force or within the time
stipulated thereunder, whichever is earlier. I further undertake to
take all rectification measures as stipulated under such Act and
also to pay such fees as stipulated under such Act.
I
say that my premises are situated in ___________ Association and
____________ Association and it shall be my endeavour that the
application is made by all the members of both the Associations,
failing which I shall make application individually or jointly with
other similarly situated persons with a request that the same be
considered under the provisions of the of the Act.
I
further undertake that if under the provisions of such Act I am not
entitled to apply or that the application made by me is rejected,
the Corporation would be entitled to again put seals on the property
and take such further action as they would be entitled under the
law.
In
the event such proposed Act does not come into force, within 3
months hereof, I undertake to abide by the present law.
This
undertaking is without prejudice to my rights and contentions
otherwise available to me in law as effective today and in respect of
the proposed Act.”
We
have heard learned counsel for the parties and perused the record.
It
will be evident that this Court, having noticed illegal construction
or use of one or other building in the town of Ahmedabad, passed
different orders in the cases of Consumer Protection Council vs.
Ahmedabad Municipal Corporation, reported in 2000(3) GLR 2607,
of Sharda Sahakari Gruh Mandali Limited and others v/s. Ahmedabad
Municipal Corporation and others, reported in 2006(2) GLR
1765, and of Suo Motu proceedings v/s. Ahmedabad Municipal
Corporation and others (S.C.A. No.13308/2004), reported in
2006(2) GLR 1129. In spite of such directions given by the
Court in all these cases, no steps were taken by the Ahmedabad
Municipal Corporation and, therefore, the matter calls for serious
public concern.
In
view of the first order passed by this Court in the case of Consumer
Protection Council (supra), the Legislature originally enacted an Act
known as “The Gujarat Regularisation of Unauthorised
Developments Act, 2001”. In spite of such Regularisation Act,
no application was made. It appears that most of the persons did not
choose to file any application for regularisation of their building.
Taking into consideration the aforesaid fact, this Court intended to
initiate contempt proceedings in the pending writ petition in
question – Special Civil Application No.10488/2008.
When
the Corporation noticed as to why a proceeding for contempt be not
initiated, the Corporation hurriedly sealed a large number of shop
premises on C.G.Road and some other roads but many of the building
premises alleged to have not been sealed.
Initially,
C.G.Road Shop Owners’ Association and Jewellers’ Association asked
for some time to take correctional measures. Time was allowed and
interim order of stay was passed. However, the individual shop owners
or builders, having failed to take correctional measures by making
the provision for parking space or other facilities, the interim
order of stay was rejected. Thereafter, the Corporation sealed many
of the shop premises.
It
has been brought to our notice that in some of the cases, in view of
the interim order of stay, the premises have not been sealed. In some
other cases, in absence of any interim order or because of rejection
of petition for interim relief, some of the premises have been
sealed. There are other cases i.e. some other buildings in the town
of Ahmedabad where the Corporation has not sealed the premises.
The
question arises, whether at this stage the Corporation should be
directed to open the seal and allow the occupiers to run their
business or utilize their respective premises before the proposed
Regularisation Act, 2011 is enacted.
It
has been brought to our notice that because of sealing, a large
number of workmen working in different shops are rendered jobless,
may be, temporarily. Further, we find that the Legislature also
intended to regularise the premises including the use of such
premises and may allow one or other occupier of building or part of
the building to change the premises from residential to commercial.
The Corporation has also agreed that they may stop further sealing or
reopen the sealing already made, on receipt of undertaking of
particular nature if given by the owner of the premises or part of
the premises.
In
the facts and circumstances of the case, we direct the Corporation
not to make further sealing and where sealing has already been made,
to reopen such sealing for the present, if individual owner of the
building or premises or part of the premises files an undertaking
before the Commissioner, Ahmedabad Municipal Corporation and states
as follows:
The
occupiers will file application for regularisation of the building
along with requisite fee, as may be prescribed under the proposed
Regularisation Act, 2011, within the time as may be prescribed under
the Act. If no such time is prescribed under the Act, then they will
apply within six months from the date of enactment of the proposed
Regularisation Act, 2011.
They
will take all rectification measures as per the provisions of the
proposed Regularisation Act, 2011, and only on satisfaction of the
Corporation, they will continue with the occupation of the premises,
as per the existing Building Use Permission.
The
occupiers of the premises will specifically give an undertaking that
they will obtain Building Use Permission for the entire building or
part of the building, if it is permitted under the proposed
Regularisation Act, 2011.
FSI
will be considered on the basis of the area occupied by the entire
building.
Parking
space will be determined on the basis of the area of the building
and the nature of use of such building i.e. residential or
commercial or both residential and commercial; and
If
the Act is not enacted within three months i.e. by 15th
August 2011, it will be open to the Corporation to seal/re-seal the
premises.
However,
if one or other occupier is entitled for regularisation as per the
Regularisation Act, 2001, in such case, if the proposed
Regularisation Act, 2011 is not enacted, he will give undertaking
that he will take measures for regularisation as per Regularisation
Act, 2001, by 15th September 2011.
If
such undertaking is given by one or other occupier of the
building/premises or part of the premises or by co-sharers of such
building, jointly or separately, the Corporation will not seal the
premises or part of the premises, as the case may be, till 15th
August 2011 or till the time as may be stipulated under the proposed
Regularisation Act, 2011 to make application, if the Act is enacted,
whichever is later.
Where
premises or part of the premises has already been sealed, on receipt
of such undertaking the premises or part of the premises be re-opened
and allow the occupier to use the premises as he was using earlier,
till 15th August 2011 or till the time as may be
stipulated under the proposed Regularisation Act, 2011 to make
application, if the Act is enacted, whichever is later.
This
order will be applicable not only to those who have moved before this
Court or party to one or other case, but to all those who may claim
benefit of the proposed Regularisation Act, 2011, of which, “The
Gujarat Regularisation of Unauthorised Development Bill, 2011”
has already been passed by the Legislature and forwarded to Her
Excellency, the Governor of Gujarat, for assent.
Post
the matter on 4th July 2011. Direct service is permitted.
Interim
orders passed in cases or the prayers for interim relief, which
earlier rejected, stand modified to the above extent.
(S.J.Mukhopadhaya,
CJ.)
(J.B.Pardiwala,
J.)
/moin
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