JUDGMENT
R.M. Doshit, J.
1. Heard the learned advocates and the respondent No.3 Shri Yashvantbhai Patel.
2. This petition preferred under Article 227 of the Constitution of India arises from the order dated 17th September, 2003 made by the learned City Civil Judge, Ahmedabad below applications Exhibits 44 and 45 in Civil Suit No.2871/2002. This petition came up for hearing before me on 24th March, 2004. On the said date the order came to be made as under :
“Heard the Learned advocates and the respondent no. 3 Shri Yasvantbhai Patel.
3. The petitioner, before this Court is the plaintiff in Civil Suit No. 2871/2002 pending before the City Civil Court, Ahmedabad. Feeling aggrieved by the order dated 17th September, 2003 made below application Ex.45, the petitioner has preferred the present petition. The subject matter of the suit is a cellar of the building known as “Vinay Market”, situated in Maninagar, Ahmedabad.
4. The aforesaid application ex.45 was moved by the respondent no.3 herein, one of the occupants of the aforesaid “Vinay Market” and the original owner of the land, for being impleaded as party defendant to the suit. The said application has been allowed by impugned order dated 17th September, 2003.
5. In the aforesaid suit, the petitioner-plaintiff has stated that he has purchased the cellar of the building known as “Vinay Market”, situated on final Plot No.138, T.P. Scheme No.4 of Khokhara Mahemadabad. The suit cellar was in occupation of Bank of India. The former owner one M/s. Purvi Construction had on 4th May, 2002 paid the impact fee in the sum of Rs.1,51,000/- for regularization of the alleged irregular/illegal construction. Some of the shop owners of the said “Vinay Market” had issued threats to the plaintiff. They were likely to instigate the Municipal Corporation to take action against the plaintiff. The defendant no.2 Ahmedabad Municipal Corporation was likely to take action against the plaintiff at the instance of the defendant no.1. The plaintiff, therefore, prayed, inter alia, for injunction against defendant no.2 – Ahmedabad Municipal Corporation from interfering with the possession and user of the suit cellar by the plaintiff.
6. From the records of this petition and the oral submissions made, it transpires that according to the original plan submitted for sanction by the then owner of the land, the respondent no. 3 herein, the entire area of suit cellar was to be utilised for parking the vehicles. However, the aforesaid M/s. Purvi Construction submitted revised plans. Under the revised plans sanctioned on 4th October, 1983, of the 1231.54 sq. mtrs. of suit cellar, 765.33 sq. meter was to be used for Bank Godown and Safe Deposit Vault and an area of 466.21 sq. meter was sanctioned as parking area. However, while letting out the suit cellar to the Bank, the said M/s. Purvi Construction let out the area of 9700 sq. ft. to the bank i.e. the area larger than shown in the sanctioned plan. But, the bank has given over vacant possession of the area in its possession to the said M/s. Purvi Construction before the date of the suit. Thus, on the date of the suit, the entire suit cellar was open as parking area.
7. In the aforesaid suit, by order dated 6th January, 2003 the learned City Civil Judge ordered that “it appears that and it is also evident from the documentary evidence produced vide list Ex.3 that the plaintiff has applied under the Gujarat Regularization of Irregularised & Unauthorized Construction Act, 2001 for regularization of construction and it appears that after preliminary scrutiny his application has been accepted by the Defendant Corporation and that, till the decision is taken under the said Act on the said application by the Municipal Corporation on payment of impact fee, it is hereby ordered that both the parties should maintain statu-quo.” Since the date of the said order, the petitioner started making construction in the suit cellar in gross violation of the above order made by the City Civil Court. The petitioner is alleged to have constructed partition walls and has made 55 shops in the suit cellar after 6th January, 2003. Some of the shops were put into use after 14th November, 2003. In the month of February, 2004, the ramp has been removed and the staircase has been constructed.
8. From the facts recorded hereinabove, it is evident that on the date of the suit or even on 8th May, 2002, the date the plaintiff purchased the suit cellar or on 4th May, 2002, the application for regularization of alleged illegal construction was made by the aforesaid M/s. Purvi Constructions, no construction was made in the suit cellar. Neither there was a need to pay impact fee; nor to apply for regularization of the construction made in the suit cellar; nor was there cause of action for the suit. The action of applying for regularization of construction allegedly made in the suit cellar, payment of impact fee and filing of the suit are all part of a conspiracy hatched with a view to making aforesaid illegal construction and to get it regularized under the guise that the shops now constructed were in existence which required to be regularized under the above referred Act of 2001. The plaintiff has, with an intention to take undue advantage of the said Act of 2001, made aforesaid illegal construction and has created third party rights in violation of the sanctioned plan, relevant building byelaws/regulations and the order of the City Civil Court. The entire exercise undertaken by the plaintiff smacks of malafide and ulterior motive. The plaintiff has made the civil court instrumental in his design to defraud the Municipal Corporation and the people in general. The plaintiff has thus perpetrated fraud upon the court. I am, therefore, of the view that the petitioner is required to be directed to demolish the entire construction made by him and to restore the status-quo ante as it obtained on the date of the suit.
9. In view of the above discussion which took place during the course of hearing, and the view I have taken, the learned advocate Mr. Gandhi appearing for the plaintiff has sought leave to withdraw this petition. Leave is refused. Learned advocate Mr. Gandhi seeks time to answer to the contentions raised today and the intended order of demolition of the aforesaid illegal construction made by the plaintiff.
10. Mr. Gandhi further states that all the 55 shops have been given away by the plaintiff and no further change is possible. The petitioner shall give details of transfer of the said 55 shops, i.e. the names of the persons in whose favour the transfer has been made, date of such transfer and the details of document by which each transfer has been made.
11. Pending further hearing, the respondent-Ahmedabad Municipal Corporation shall seal the entire suit cellar and will also make panchanama as to the actual position of each shop. It is further directed that the In-charge Dy. T.D.O. (Town Development Officer) Shri V. J. Dhanani, shall be in-charge of this matter and shall be responsible for carrying out the orders of the Court and shall be answerable to the Court, till Dy. T.D.O. Mr. Bhanubhai Chauhan resumes the charge. On and from the date, the aforesaid Mr. Bhanubhai Chauhan, Dy.T.D.O. resumes the charge, he shall be in-charge of the matter and shall be answerable to the court and be responsible for carrying out the orders of the Court.
S.O. to 7th April, 2004.”
12. The above order was challenged in Letters Patent Appeal No.1052/2004. I am informed that the petitioner has withdrawn the Civil Suit No.2871/2002 pending before the City Civil Court on 9th April, 2004. The Letters Patent Appeal No.1052/2004 has also been withdrawn on 13th April, 2004. The respondent No.3 has submitted that he is not aware of the withdrawal of the suit nor was he served with any application or purshis for withdrawal.
13. It is evident that pending this petition the suit has been withdrawn with a view to defeating the present proceedings and to setting at naught the aforesaid order dated 24th March, 2004 and the consequences thereof. In view of the withdrawal of the suit the challenge to the impugned order dated 17th September, 2003 shall not survive. However, the hearing has proceeded whether the petitioner has made construction in violation of the orders made by the City Civil Court and this Court; whether the petitioner should be permitted to pursue application for regularisation made to the Ahmedabad Municipal Corporation (hereinafter referred to as ‘the Corporation’); whether the offending construction should be ordered to be demolished.
14. Learned advocate Mr. Thakore has relied upon the possession agreements executed on stamp paper of Rs.50=00 each (annexed to the affidavit made by the petitioner on 12th April, 2004). The said possession agreements are relied upon to buttress the contention that all the 55 offending shops have been disposed of and that the third party interest has been created. Be it noted that the title to the immovable property cannot be validly transferred by a possession agreement. It is admitted that neither a sale deed nor an agreement for sale has been executed with respect to any of the offending shops. No proof has been produced with respect to the transfer of money. Moreover, the said possession agreements are of the dates mainly of March, 2003, April, 2003, August, 2003 and September, 2003. Neither of the said possession agreements has been executed on or before 6th January, 2003 i.e. the date on which the learned City Civil Judge had ordered “till the decision is taken under the said Act on the said application by the Municipal Corporation, on payment of impact fee, it is hereby ordered that both the parties should maintain status-quo.” It is not the case of the petitioner that since the date of the said order the application for regularisation made by M/s. Purvi Construction has been considered and decided by the Corporation. Hence, the said order of status quo was operative on the dates on which the aforesaid possession agreements were allegedly executed. I am, therefore, of the opinion that the above referred possession agreements are concocted and are not reliable documents. By the said possession agreements neither the title in the offending shops is transferred nor the third party interest is created. Even otherwise the said agreements have been executed in flagrant violation of the order of the City Civil Court. Further, it has come on record that the offending construction has been made in or after the month of September, 2003 i.e. after the aforesaid possession agreements were allegedly executed. The action of the petitioner in making the aforesaid possession agreements while the status quo ordered by the City Civil Court was in operation and in making the offending construction thereafter fortifies my opinion that the endeavour is to take undue advantage of the provisions of the Gujarat Regularisation of Unauthorised Development Act, 2001 (hereinafter referred to as ‘the Act of 2001’). In doing so, the petitioner has made the City Civil Court instrumental and has also defrauded the City Civil Court and the Corporation.
15. Mr. Thakore has relied upon the sanctioned plan and has submitted that M/s. Purvi Construction had purchased the suit cellar and had developed the same for commercial purpose. The said commercial use being illegal, had applied for regularisation. The petitioner is entitled to get the said commercial construction regularised on payment of impact fee under the Act of 2001. He has also submitted that under the relevant regulation on payment of certain fees the obligation to provide for parking facility has been taken over by the Corporation. The petitioner is, therefore, wholly justified in developing the suit cellar for commercial purpose. Mr. Thakore has also relied upon the construction plan sanctioned by the Corporation and has submitted that adequate parking area is provided on the ground floor of the building and no further parking area is required in the suit cellar. The argument is fallacious and requires to be rejected outright. The aforesaid parking area on the ground floor was provided in the original plans also in addition to the parking facility provided in the suit cellar. By developing the suit cellar for commercial purpose not only the petitioner has reduced the available parking area but has also added the need for larger parking area keeping in view the requirement of 55 offending shops constructed by the petitioner. It is not the case of the petitioner that he has made adequate parking facility for the occupants of those 55 offending shops also. The question of facility of sanitation and hygiene is neither raised nor answered.
16. In sum and substance, there is no denial that on 8th May, 2002, the day on which the petitioner purchased the suit cellar, there was no commercial use existing in the suit cellar. In absence of any cause of action the Civil Suit No.2871/2002 was instituted by the petitioner with a view to making unlawful commercial use of the suit cellar and to pass off such illegal construction as the preexisting construction. Thus, to take undue advantage of the provisions of the Act of 2001. The entire offending construction has been made after institution of the Civil Suit and after the City Civil Court had ordered to maintain status quo. Argument has also been made that the status quo ordered by the City Civil Court is required to be construed in the light of the averments made in the suit i.e. the status quo was ordered against the defendants and cannot apply to the plaintiff. I disagree with the contention. The status quo was expressly ordered to be maintained by both the parties. No other meaning can be attributed to the said order. Thus the suit cellar was required to be maintained in the position as it was without making any alteration thereto. It may also be mentioned here that in Civil Suit No.361/2003 instituted by the present petitioner against the respondent No.3 and some others, by order dated 4th November, 2003 made by the learned City Civil Judge below application Ex.21 (p.68), a specific injunction was issued against the petitioner and one another, the plaintiffs in the said suit, restraining them from making any alteration or new construction in the suit cellar and from transferring or assigning the suit cellar or any part thereof to any other person and from transferring the possession thereof. Indisputably, the offending construction has been made in violation of the orders of the City Civil Court made in the aforesaid Civil Suits Nos.2871/2002 and 361/2003.
17. Learned advocate Mr. Desai has submitted that under the Act of 2001 the Corporation is empowered to regularise the unlawful construction made before the month of April, 2001. Admittedly, the offending construction has been made long after the month of April, 2001. He has relied upon various inspection reports made pending the suit. He has submitted that the offending construction has been made during the months of September, 2003 to January, 2004. The said construction has undoubtedly been made contrary to the sanctioned plans, in violation of the building regulations/bye-laws and also in violation of the orders of the City Civil Court as well as of this Court. The Corporation has no power to regularise such illegal construction. The question of regularisation of the offending construction on payment of impact fee shall not arise.
18. In the busy and congested city like Ahmedabad, it cannot be gainsaid that every building, more particularly a commercial building is required to provide for adequate parking area for the occupants, their staff and the visitors. Permitting to park vehicles on the road on payment of some sundry amount can also be not permissible. Such parking undermines the safety of the people in general and causes hindrance to the vehicular traffic leading to traffic jams and adding to the air and noise pollution. It is the fundamental duty of the Corporation to ensure that all building plans provide for adequate parking and that the construction is made strictly in accordance with the sanctioned plan. Since the Corporation has failed in its duty to enforce the construction regulations the unscrupulous builders like the petitioner are emboldened to take undue advantage of the lethargy (deliberate or otherwise) of the Corporation and to make the courts of law instrumental in carrying on their illegal activities; blissfully oblivious of the plight of the people and loss of life in road accidents. Neither the courts can be instrumental in encouraging such illegal activities; nor the courts should allow the parties to play tricks with the court; nor should the courts be silent spectator in permitting such illegal construction to stand.
19. In view of the above discussion the respondent No.2 Ahmedabad Municipal Corporation is directed to demolish the construction of 55 shops made by the petitioner in the suit cellar after 8th May, 2002 and to restore the suit cellar as parking area. The Corporation shall maintain the account of the cost of demolition and the restoration of the suit cellar as parking area. The petitioner shall be liable to meet such cost. In the event the petitioner fails to pay such cost, the Corporation shall be entitled to recover the same as arrears of land revenue. The demolition of offending shops and restoration of the suit cellar as parking area shall be completed by 31st August, 2004. The compliance should be reported to this Court. As directed by order dated 24th March, 2004, the Deputy Town Development Officer Shri Bhanubhai Chauhan shall be in charge of the matter. The said Shri Bhanubhai Chauhan shall be responsible for carrying out the order of this Court and shall be answerable to the Court.
20. Subject to the above directions, the petition is disposed of with costs. The cost to the Corporation and the respondent No.3 is quantified at Rs.5,000=00 each.
21. Learned advocate Mr. Thakore has requested that this order be stayed for a period of eight weeks. The request is granted. This order shall stand stayed till 30th June, 2004 on condition that the offending construction will continue to be in possession of and under the seal of the Corporation.