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Gujarat High Court
Federation Of Building Asso. vs State Of Gujarat on 12 October, 2000
Author: R Abichandani
Bench: R Abichandani, D Mehta


JUDGMENT

R.K. Abichandani, J.

1. The petitioners seek to prosecute this petition
in a representative capacity for framing of a Scheme, a
draft of which is placed at Annexure “R” to this
petition, for the purpose of granting relief and
rehabilitation to the occupiers of the illegal and
unauthorised constructions made on C.G Road, Off C.G Road
and surrounding areas, with such alterations, additions
and modifications as may be ordered by this Court.

2. The petitioner No.1 is a recently formed
Federation, which is admittedly not a registered
Association and the petitioners Nos. 2 to 9 are said to
be it’s office bearers, who are also the occupiers of the
commercial complexes on the C.G Road. Amongst the other
prayers sought in the petition are for, appointment of an
enquiry commission as regards the unauthorised
constructions and for fixing the responsibilities of the
Municipal officers and ascertaining the role played by
the builders and such officers, taking action against
such officers and builders, creating fund by issuing
directions to deposit for the purpose of carrying out the
scheme, taking disciplinary action against architects,
engineers concerned concerned with the unauthorised
illegal constructions including prosecuting them under
the law and restraining the respondent Corporation from
taking any coercive measures and/or demolishing the
illegal or unauthorised constructions on C.G Road and Off
C.G Road and the surrounding areas. Alongwith the
petition annexed at Annexure “A” is the list of the
existing buildings on C.G Road of which 35 are shown
under Part-I and 38 under Part-II. The list of 7
buildings under construction is at Annexure “B” to the
petition. Then there is a list at Annexure “G” to the
petition giving particulars of buildings situated at C.G
Road, of which the occupiers are the members of the
petitioner Federation. In this list 73 building
complexes are enumerated.

2.1 In paragraph 12 of the petition, it is stated
that one Consumer Protection Council and others had filed
Special Civil Application No. 6794 of 1992, inter-alia,
pointing out the illegalities in the construction and use
of these complexes and praying for a relief that the
Ahmedabad Municipal Corporation, the Town Planning
Officer and the State of Gujarat be directed to take
action against all builders, organisers, promoters,
societies, companies, associations having any building or
premises on C.G Road in particular and in any other place
in Ahmedabad in general, to see that they use the
premises in accordance with building use permission
granted to them and in accordance with the building
bye-laws, TP Scheme and the regulations regarding
development plan and in particular regulations with
regard to zoning (CG Road being residential) and if
necessary to pull down the unauthorised constructions. A
copy of that petition has been annexed at Annexure “M” to
the present petition. It will be seen from the prayer
clause 11(A)(1) thereof that a relief was also sought
against the occupiers of such buildings. Admittedly the
occupiers were not made party respondents in that
petition. The said Special Civil Application No. 6794
of 1992 alongwith Special Civil Application No. 6893/92,
which was filed by the Ahmedabad Premises Users’
Association and others were heard together and a Division
Bench of this Court (Coram: Hon’ble Mr. Justice B.C. Patel
and Hon’ble Mr. Justice P.B. Majmudar), by a detailed
judgement dated 4th October, 2000, allowed the Special
Civil Application No. 6794/92 in terms of the directions
given and rejected the other petition. The Court also
directed the Registry to notify the matter on 13th
October, 2000 for compliance with the directions issued
therein. The Hon’ble Mr. Justice P.B. Majmudar while fully
concurring with the views expressed by Hon’ble Mr. Justice
B.C.Patel, added His Lordship’s views in so far as change
of user from residence to commerce use was concerned and
observed that by virtue of the resolutions which have
been set aside because of the inaction on the part of the
Ahmedabad Municipal Corporation, an irreversible position
has been created and some innocent occupiers have been
duped. It was observed that however, since some
occupants have already filed Suits and obtained stay, it
can be said that they were aware of the situation. It
was further observed that it was not possible to ignore
the fact that because of the so-called resolutions and
the permissions granted, various commercial complexes
have been constructed on C.G Road in the city and in the
last many years those innocent occupiers are doing their
business. Hon’ble Mr. Justice P.B. Majmudar in this
background directed that while implementing the
directions given by Hon’ble Mr. Justice B.C. Patel, the
Corporation should consider the hardship of the occupants
of the premises in view of the 1994 resolutions and may
grant sufficient time to such occupiers to restore the
premises to the use to which the plans were sanctioned.
However, so far as the place reserved for parking is
concerned, the Corporation must follow the directions as
given by Hon’ble Mr. Justice B.C. Patel. It was further
observed that so far as the rest of the directions
regarding parking space etc. are concerned, His Lordship
fully agreed with the views expressed by Hon’ble
Mr. Justice B.C. Patel. With the above observations
made, His Lordship expressed full agreement with the
views expressed by Hon’ble Mr. Justice B.C. Patel.

3. The directions which were issued in the judgement
rendered by Hon’ble Mr. Justice B.C. Patel are contained
in various paragraphs of the judgement and those which
have bearing on the present petition are summarised
hereunder:-

(i) The Corporation was directed to take action
forthwith so far as the unauthorised construction
is concerned, and should report to the Court
about the action taken on or before 3.11.2000.
The view taken on 6.9.2000 in A.O No. 441 of
1998 that no building should be permitted to be
erected or continued to be occupied in
contravention of the provisions of the Bombay
Provincial Municipal Corporation Act, Building
Regulations and the Bye-laws was reiterated.

(ii) The resolutions, dated 12.10.1992 passed by the
Town Planning Committee and dated 17.11.1994
passed by the Administrator were quashed and set
aside with a direction to the Municipal
Corporation to strictly adhere to the “use zones”
and permit erection of buildings and use and
occupation of the new as well as the old
buildings strictly in accordance with the Rules,
Regulations and Bye-laws as are applicable to the
“use zones”;

(iii) Holding that the action of the Municipal
Corporation permitting change of user was
contrary to the provisions of law and that the
Corporation had no authority to permit the change
of user and the use zones and that the
Corporation had erred in implementing the
resolutions without the sanction of law and
further that it had no authority of law either to
levy conversion or licence fee or value added fee
and thereby to permit unauthorised construction
or illegal use and occupation of the place meant
for parking and or residence or the like, it
directed the Corporation to take action in such
cases in accordance with law forthwith and report
to the Court about the action taken;

(iv) The Corporation was directed to issue notice in
accordance with law, if not issued, and require
all such persons who are occupying and running
shops, offices etc. in the places sanctioned in
the plans for parking and common amenities,
irrespective of the fact whether any
conversion/licence fee or value added fees has
been paid for such buildings or not, and to
ensure that the facilities as per the approved
plans and as per the law are made available to
the users, and, to give them sufficient time as
contemplated in the Act, Rules and Bye-laws and
on the expiry of the period of notice if the
premises are not vacated, to seal such premises
and cause the premises to be used for the purpose
for which sanction was given in the approved plan
and strictly in accordance with the use zone and
Building Regulations, without waiting for any
further orders from the Court;

(v) The Corporation was directed to forthwith ensure
that the places sanctioned for parking and common
amenities were made open and used for such
purpose only. Holding that the occupiers who
were using premises for purposes other than the
permissible use in a residential zone on payment
of conversion fees as per 1994 resolutions were
also not entitled to use the premises for such
purpose, a direction was given to the Corporation
to issue notice to every occupier and give them
reasonable time to vacate the premises and to put
the premises to the permissible use as per the
sanctioned plan;

(vi) The Corporation was to report to the Court about
the actions taken against the professionals who
were concerned with the unauthorised construction
of buildings in this city and to inform the
Institute of Architects if it is found that any
architect has abated, aided or assisted in
erection of a building contrary to the permission
granted under the Act, Rules, Regulations and
Bye-laws.

(vii) The Corporation was directed to ensure that all
buildings are in conformity with the Building
Regulations and to take immediate action to
restore parking facilities in every building as
per the Regulations;

(viii) Action was directed to be taken in accordance
with law for change of use without being
influenced by the fact that conversion fee was
charged;

(ix) The Corporation was directed to disconnect sewage
connection, if it is found that any person had
illegally taken such connection, and not to
provide water and sewage connection without
“building use permission” being granted;

(x) The Ahmedabad Electricity Company was directed
not to provide electric connection without
production of “building use permission” issued by
the Corporation; and

(xi) A Three Member Committee headed by a retired High
Court Judge, a well-known Architect and a
Structural Engineer was ordered to be constituted
for fixing the responsibility of negligent
officers stage-wise.

4. The learned Counsel appearing for the petitioners
submitted that the nature of the present petition is
entirely different from the nature of the petition which
has been adjudicated upon by the Division Bench, though
the buildings involved are on the same C.G Road and Off
C.G Road. He submitted that in the present petition the
petitioners have sought framing of a Scheme which was not
the subject matter of the earlier petition. According to
him, there is no overlapping in these two petitions. The
scheme which is proposed in the present petition has
relevance to the massive effect of the decision rendered
which adversely has affected the interest of all the
occupiers of such unauthorised constructions. It was
submitted that the Corporation had made attempt to
regularise the use and constructions, but in view of the
Division Bench having set aside its resolutions, that
could not be done and therefore these occupiers are left
with no option but to approach this High Court with the
suggested Scheme for rehabilitating them and granting
relief to them. It was submitted that this was required
to be done on the doctrine of necessity, which he
submitted, should be invoked since nearly three lakhs of
persons were getting affected as they were concerned with
the trades and businesses which were run by these
occupiers. He submitted that before the Division Bench,
the legality and the validity of the resolutions made for
regularising the use and unauthorised constructions was
in issue and not the Scheme. It was also argued that the
decision of the Division Bench was not binding on the
present petitioners because the occupiers were not made
parties to those petitions. He submitted that the
occupiers though vitally concerned, were not heard and
therefore the decision was rendered without following the
principles of natural justice. He however, made it clear
that the petitioners are not challenging that decision or
arguing against any of the directions which are given by
the High Court in that decision. He submitted that the
present petition was not hit by the principles of
constructive res-judicata because the occupiers were not
parties to the earlier petition and because the points
involved in the earlier petition as well as the reliefs
sought were different and there was no occasion therein
to consider the question of rehabilitation of the
occupiers. He also submitted that the State Government
had power to make variation in the Schemes and plans and
therefore, the question of conversion of zones from
residential to commercial could be considered and decided
even after the said decision and the purpose of
suggesting the Scheme was to see that necessary changes
are made.

4.1 The learned Counsel in support of his contention
that the Court should entertain the present petition on
the doctrine of necessity, relied upon the decision of
Court of Appeal in Mitchell and Ors. v. Director of
Public Prosecutions and another, reported in (1987) Law
Reports of the Commonwealth p. 127 and cited the
observations at page 131 of the report, in support of his
submission that the doctrine of necessity in public law
is in reality the acceptance of necessity as a source of
authority for acting in a manner not regulated by law,
but required in prevailing circumstances, by supreme
public interest, for the salvation of the State and its
people, as held by Josephides, J. quoted on page 133 of
the report.

4.2. We have been taken through the record and the
decision rendered by the Division Bench of this Court in
Special Civil Application No. 6794 of 1992 and Special
Civil Application No. 6893 of 1992 and have heard the
learned Counsel who has argued at great length.

5. This petition filed by an unregistered
Association of users of buildings situate on the C.G Road
and Off C.G Road and its office bearers who are also the
occupiers of the commercial complexes on C.G Road as
stated by them though ostensibly claiming differently
couched prayers, such as, seeking an order framing of a
Scheme proposed for granting relief and rehabilitation to
the occupiers of illegal and unauthorised constructions
on the C.G Road and Off C.G Road, appointment of a high
power commission to look into illegalities, seeking
action to be taken against builders and developers of
commercial complexes on C.G Road and Off C.G. Road as
well as the Municipal Officers, is nothing but a crude
attempt to raise before a co-ordinate bench the selfsame
issues which have been concluded very recently by a
Division Bench of this Court in its judgement and order
dated 4.10.2000, by which Special Civil Application No.
6794 of 1992 filed by the Consumer Protection Council was
allowed and Special Civil Application No. 6893 of 1992
filed by the Ahmedabad Premises Users’ Association and
others against the local authority and the State was
rejected. This was done after an elaborate consideration
of the matter and the resolution dated 12.10.1992 of the
Town Planning Committee as well as the resolution dated
17.11.1994 passed by the Administrator were set aside and
the Ahmedabad Municipal Corporation was directed to
strictly adhere to the use zone and to ensure that all
buildings are in conformity with the present building
Regulations and take immediate action to restore parking
facilities in every building as per the Regulations and
issued various other directions set out hereinabove,
including a direction to notify the matter before it on
13.10.2000 for compliance with its directions issued in
the judgement. That petition, also a PIL, related to
unauthorised use of buildings situate on and Off C.G
Road, conversion of the parking area into shops and
inaction and/or connivance of the Municipal authorities.
A direction was sought against the authorities to
forthwith take action against all builders, occupiers,
associations, promoters etc. having any building or
premises on the C.G Road, Off C.G Road etc. to restrain
them from making any illegal use of such premises and if
necessary to evict the owners/occupants from the premises
and pull down the constructions and to desist from
regularising illegal construction or the illegal use of
such buildings. In the present petition, the reliefs
camouflaged in the Scheme proposed in prayer clause 32(B)
are sought for the affected “occupiers” who, as defined
in paragraph 3(i) of the Scheme, are the holders of
premises on both sides of C.G Road in the commercial
complexes commencing from Stadium Circle to Mahalaxmi
Cross Roads, the details of which were supposed to be in
Schedule I which is not annexed. In paragraph 7 of the
scheme a seemingly innocuous provision is made, which if
accepted will directly conflict with the decision of this
Court in the above two petitions. It contemplates that
on the coming into force of the proposed Scheme, the
Ahmedabad Municipal Corporation shall stop all demolition
process in respect of the premises covered under the
Scheme, subject to the provisions contained in the
Scheme. The word “premises” used in this paragraph is
defined in definitions clause 3 (ii) of the Scheme to
mean “the premises constructed in the building complexes
contrary to the provisions of the original plan,
sanctioned by the Municipality and which are illegally
converted from (i) hollow plinth, (ii) parking area,

(iii) use of marginal land, (iv) change of user and (v)
premises without fire safety measurements in cases of
high-rise buildings.” The “Fund” meant to be established
under the Scheme (Clause 3 [iv]) is for the purpose of
relief and rehabilitation of occupiers and/or
“regularisation of the premises of the occupiers
constructed contrary to the provisions of the Bombay
Provincial Municipal Corporation Act, Rules, Regulation,
Bye-laws, concerned Town Planning Scheme and Development
Regulations. The reliefs contemplated under paragraphs
10 and 11 of the Scheme are that the Corporation will,
after examining the feasibility, permit in any such
building complexes construction of basement parking in
the area available in the complex for which “the
Municipal Corporation shall amend suitably the bye-laws,
rules and regulation etc. to provide for such
underground basement/parking places”, and that “the
Government shall consider and decide the change of user
in respect of the resolution of the Ahmedabad Municipal
Corporation which were pending before the Government from
the year 1984 and the resolution of the year 1994 and
take appropriate measures”, (two resolutions including
the resolution dated 17.11.1994 passed by the
Administrator of the Corporation have been set aside by
this Court in the said decision dated 4.10.2000 in
Special Civil Application No. 6794 of 1992). In
paragraphs 15 and 17 of this Scheme, protection is sought
for the illegal constructions made upto 31st October,
2000. It therefore becomes at once clear that the scheme
is designed to nullify the effect of the Division Bench
judgement which in substance deals with the same
controversy raised in those PIL proceedings. The present
petition is also of PIL nature seeking to be
representative of the affected parties who were the
occupiers of the same buildings. The consideration of
the questions raised and reliefs claimed in this petition
will amount to examining the very controversy which has
already been adjudicated upon in the PIL proceedings, the
decision in which was, interalia, meant to affect the
interests of occupiers and therefore operated
quasi-in-rem, binding on all those whose interests were
meant to be covered by it even when they were not
actually before the Court. The petitioners whose
interests in the buildings are affected by that decision
cannot question it before this co-ordinate Court in this
indirect manner and the whole attempt smacks of trying to
over-reach the earlier verdict. This co-ordinate Court
will have no jurisdiction to entertain the questions
which are concluded by the Division Bench in respect of
these buildings on and around the C.G Road, which were
the subject matter of those petitions, even on the ground
that the petitioners were not heard though vitally
interested in the matter and adversely affected by its
outcome. The Court deciding those matters was fully
aware that there were occupiers who would be affected
adversely by the decision and this aspect reflects from
the concurring judgement of Hon’ble Mr. Justice P.B.
Majmudar.

Therefore, even the contention that the occupiers
who had a vital interest in the proceedings were not
heard, will not justify our adjudicating upon the
questions in respect of the buildings on C.G Road and Off
C.G Road under the guise of examining the proposed
Scheme. There cannot be any dispute about the
proposition that persons who are vitally interested in
the proceedings are required to be heard, but it will not
be open for this Court to go into the question as to
whether the petitioners who are occupiers of the building
complexes to which the said decision relates, were
required to be heard by the Court before it adjudicated
upon the disputes raised in the petition, because that is
not the function of a co-ordinate Court. There is also
no question of referring this matter to a larger Bench
because that will not in any way affect the operation of
the Division Bench judgement as regards the points
concluded by it, which will bind the respective parties
including the Corporation and consequentially the
occupiers. It is obvious that what cannot be done
directly, cannot be done indirectly and in our opinion,
this petition cannot be entertained since we have no
jurisdiction to decide upon the selfsame issues which
have been concluded by the Division Bench. Both on
legality and propriety this petition cannot be
entertained and is rejected in limini.

6. We make it clear that we have not examined the
merits or demerits of the controversy and we dispose of
this petition on the ground that since most of the points
which are tried to be raised in the present petition by
the Scheme proposed are already covered by the decision
of the Division Bench. It will be open for the
petitioners to take recourse to such remedies as may be
available to them under the law.


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