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SCA/987/2010 11/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 987 of 2010
=====================================================
TEJAS
CO-OP HOUSING SOCIETY LTD - Petitioner(s)
Versus
AHMEDABAD
URBAN DEVELOPMENT AUTHORITY & 3 - Respondent(s)
=====================================================
Appearance :
MR
JC VYAS for Petitioner(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 1 - 3.
MR ADIL R MIRZA for Respondent(s) : 1,
MR
DHAVAL G NANAVATI for Respondent(s) : 2,
MR UDAY R BHATT for
Respondent(s) : 3,
MR PK JANI,GOVERNMENT PLEADER for Respondent(s)
: 4,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/07/2010
ORAL
ORDER
By
way of this petition under Article 226 of the Constitution of India,
petitioner Tejas Cooperative Housing Society Limited through its
Chairman has prayed for an appropriate writ, direction and order
directing the respondent nos. 1 and 2 i.e. Ahmedabad Urban
Development Authority (herein after referred to as the AUDA )
and Ahmedabad Municipal Corporation to take appropriate action
against respondent no.3 for (i) encroachment on the public road
(ii)unauthorized and illegal construction in his residential house
bearing tenament No.48 of the petitioner society (iii) converting the
use of the said tenanment from residential into commercial by
constructing and letting three shops to different persons.
2. It
is the case on behalf of the petitioner that inspite of petitioner’s
approaching various authorities and the officers of respondent nos. 1
and 2, no steps are taken by respondent nos. 1 and 2 with respect to
illegal construction put up by respondent no.3.
3. An
affidavit in reply has been filed on behalf of respondent no.1 AUDA
pointing out that on receiving the representations by the petitioner
society dated 7.02.2008 and 15.2.2008 with respect to certain illegal
construction put up by respondent no.3 herein in contravention to the
development permission and the sanctioned plan, as the area where the
petitioner society was situated has been merged into limits of the
Ahmedabad Municipal Corporation, the office of the AUDA
intimated/informed the Corporation on 09.06.2008, to take appropriate
action and said facts were also brought to the notice of the Urban
Development Department, Gandhinagar vide letter dated 11.6.2008.
Therefore, it is submitted that so far as AUDA is concerned, they
have taken all the steps to see that grievance of the petitioner
society is appropriately redressed. It is specifically mentioned in
the reply filed by AUDA that as now area has been merged into the
limits of the Ahmedabad Municipal Corporation, the petitioner society
now have to raise the grievances with respondent no.2 so that the
said grievances can be appropriately redressed as it is now within
the jurisdiction of the corporation to taken appropriate action in
the matter as the area in question now merged into the corporation
limits.
4. Affidavit
in reply has been filed on behalf of respondent no.2 – Ahmedabad
Municipal Corporation and in the said affidavit the corporation has
come out with the following defence as so stated in para 4 to 7,
which reads as under:
4. It
is stated that the area in question was earlier under the
administrative control of the Ahmedabad Urban Development Authority,
but the said area has merged into Administrative Control of the
Ahmedabad Municipal Corporation by a notification bearing
No.KV/25/2006/AMN/902006/410/P dated 14.02.2005 and notification of
even dated 20.07.2006. The said notifications had been made
effective since the midnights of 14.02.2006 and 20.07.2006
respectively. However, it is pertinent to note that though the area
in question is merged into the administrative control of the
answering respondent, but the Ahmedabad Urban Development Authority
has not handed over the administrative powers under the Gujarat Town
Planning and Urban Development Act to the
answering respondent and taking all the administrative decisions
pertaining to the Town Planning Scheme under the Gujarat Town
Planning and Urban Development Act.
5. It
is stated that even from the order issued by the Department of Urban
Development and Urban Housing Department of the State Government vide
order No.UDA 112006 2795 V dated July 07, 2006 exercising
powers vested under section 122 of the Gujarat Town Planning and
Urban Development Act 1976 the State Government has made it very
clear that by only certain and specific powers which are available
u/S.27,28,29,30,31,32,33,34,35,36,37,38,39 and 49 of Gujarat Town
Planning and Urban Development Act 1976 have been and were
transferred to the answering respondents Corporation vide that
order and other powers other then mentioned will be exercised by the
Ahmedabad Urban Development Authority.
6. It
is stated that it becomes clear from the order dated July 07, 2006
that at time of merger of the areas under AUDA to the Corporation,
the State Government has transferred certain and specific powers of
the Gujarat Town Planning and Urban Development Act 1976 to the
answering respondent Corporation and other powers other
then the powers mentioned in the said order
have been vested with the Ahmedabad Urban Development Authority and
the AUDA will have to exercise those powers which are not transferred
to corporation by the State Government. While transferring the powers
the State Government has specifically not transferred the powers
vested under Sections 67 and 68 of the Act read with Rule 33 of the
Gujarat Town Planning and Urban Development Rules 1976, which
empowered the authority to evict the person or structure to the
answering respondent. It is also pertinent to the state at this stage
the Chief Executive Authority of Ahmedabad urban Development
Authority was also aware about the same arrangement and considering
the much said arrangement has passed an order bearing no.
Planning/Pariptra/AMC/Limit dated 18.12.2006, whereby the CEA has
ordered that in respect of the areas transferred to the AMC, AMC can
exercise the powers vested in Sections 27 to 39 of the Gujarat Town
Planning and Urban Development Act 1976 for the chapters registered
on or after 01.01.2007 otherwise the chapters which are already
registered with AUDA on or before 31.12.2006 the AUDA will take all
the necessary steps of issuing the Development Permission and
removing the illegal constructions
in respect of the chapters registered
with them on or before 31.12.2006.
7. It
is pertinent to note at this stage and it’s a matter of record that
the Ahmedabad Urban Development Authority AUDA respondent
No.1 herein has not supplied and handed over the records pertaining
to the property in question. It is further stated that the answering
respondent Corporation has time and again reminded the respondent
No.1 through the Senior Town Planner to intimate the answering
respondents about the steps taken by them in this regards besides the
written communication dated 20/2/2010 to the respondent No.1 in this
regards .
5. Looking
to the aforsaid inter se dispute between the AUDA and Ahmedabad
Municipal Corporation and powers to be exercised by the AUDA and
Ahmedabad Municipal Corporation with respect to the plots which were
initially within the local limits of AUDA but subsequently merged
into Ahmedabad Municipal Corporation and considering inter se dispute
between the AUDA and the Corporation with respect to taking steps for
illegal construction and/ or any other steps with respect to such
plots/lands which are now included within the local limits of the
Ahmedabad Municipal Corporation, this Court directed / permitted the
petitioner to Join Secretary, Urban Housing and Urban Development
Department, Government of Gujarat to clarify the position and to
remove the doubt.
6. In
response to the notice issued by this Court, Shri PK Jani, learned
Government Pleader has appeared on behalf of newly added respondent
i.e. Secretary, Urban Housing and Urban Development Department,
Government of Gujarat and an affidavit in reply has been filed on
behalf of the State Government affirmed by Shri P.L. Sharma, Officer
on Special Duty and Ex-officio, Joint Secretary Urban Housing and
Urban Development Department, Government of Gujarat and it has been
pointed out that as such the stand which is taken by both the
respondent authorities i.e. AUDA and Ahmedabad Municipal Corporation
was never brought to the notice of the State Government and
therefore, the State Government was not at all aware of the problem
faced at the ground level. It is submitted that it is always open to
both the respondents authority to approach the State Government for
clarification, if there is any misconception, confusion or
misunderstanding as regards the order dated 18.12.2006. It is further
pointed out and clarified in para 3 of the said affidavit in reply
that Ahmedabad Municipal Corporation is empowered to take decision
with respect to powers to be exercised under Sections 27 to 39 and 49
of the Gujarat Town Planning and Urban Development Act. It is further
clarified that accordingly Ahmedabad Municipal Corporation can decide
to grant or refuse any development permission inclusive of revised
development permission and also take action with respect to illegal
construction. Para 3 of the affidavit in reply reads as under:
3.
I say and submit that vide Notification dated 20.7.2006 passed by the
Urban Development and Urban Housing Department, Government of
Gujarat, the area of Ghatlodiya was included in the Municipal limits
of Ahmedabad City. It is pertinent to note that, vide order dated
18.12.2006, the State Government in Urban Development and Urban
Housing Department had directed the Ahmedabad Urban Development
Authority to transfer the powers under Sections 27 to 39 and 49 of
the Gujarat Town Planning and Urban Development Act, 1976 forthwith.
It is pertinent to note that the said order came to be passed
pursuant to the proposal submitted by the Ahmedabad Urban Development
Authority dated 1.11.2006 under Section 22(3) of the Gujarat Town
Planning and Urban Development Act, 1976 and accordingly the
Ahmedabad Municipal Corporation is empowered to take decisions with
respect to the above referred clauses and accordingly Ahmedabad
Municipal Corporation can decide to grant or refuse any development
permission and also take action with regard to the illegal
construction .
7. It
is further submitted in the said reply that as per sub-section (a) of
Section 67 of the Gujarat Town Planning and Urban Development Act,
all lands required by the appropriate authority shall unless it is
otherwise determined in such manner, vest absolutely in the
appropriate authority free from all encumbrances, thereby the land
required in the scheme vests with AUDA.
In
para 6 of the said reply, it is further submitted that in the areas
included and which now form part of Ahmedabad Municipal Corporation
limits, AUDA has prepared 93 town planning schemes on land
admeasuring 148.34 sq.mtr and from among them few schemes are at
different stages of implementation. It is submitted that on the
sanction of the scheme, vide section 67 of the Act, some land vests
with the appropriate authority. It is submitted that in many such
schemes the AUDA has carried out development and thereby liabilities
are created. It is submitted that, therefore, with regard to the
transfer of powers to Ahmedabad Municipal Corporation, to avoid
further complications, a comprehensive assessment of responsibilities
has to be taken and only pursuant to that decision to transfer the
powers to implement the town planning schemes shall be taken and till
than AUDA is empowered to implement it. Shri Jani, learned Government
Pleader under the instructions from the Officer on Special Duty and
Ex-officio, Joint Secretary Urban Housing and Urban Development
Department, Government of Gujarat, who is present in the Court has
made a statement that decision with respect to above inclusive of
lands required by the appropriate authority on sanctioning the Town
Planning Scheme (with respect to the land included into the limits of
the Ahmedabad Municipal Corporation) as well as transfer of powers
with respect to aforesaid 92 schemes with respect to land now
included into the limits of the Ahmedabad Municipal Corporation shall
be taken by the Government within a period of three months from
today.
8. Considering
the stand taken by the respondent authorities i.e. AUDA and Ahmedabad
Municipal Corporation, it appears that there was misconception and/
or confusion amongst the officer of the AUDA and Ahmedabad Municipal
Corporation with respect to exercise of powers for granting
development permission inclusive of revised development permission as
well as to take action against illegal construction with respect to
the lands/plots now included into local limits of the Ahmedabad
Municipal Corporation which were earlier within the local limits
AUDA. It has now been made clear and/ or clarified by the State
Government as recorded herein above, and as affirmed by the Officer
on Special Duty and Ex-officio, Joint Secretary Urban Housing and
Urban Development Department, Government of Gujarat. Therefore, as
per the above, as clarified by the Officer on Special Duty and
Ex-officio, Joint Secretary Urban Housing and Urban Development
Department, Government of Gujarat, power to sanction / grant and/or
refuse the development permission and /or to take action with respect
to the illegal construction with respect to the lands/plots which are
included in the limits of Ahmedabad Municipal Corporation, which were
earlier within the local limits of AUDA shall be with the Ahmedabad
Municipal Corporation and, therefore, concerned authorities i.e. AUDA
and Ahmedabad Municipal Corporation are required to take appropriate
action in accordance with law and on merits and thus for the lands
/plots which are now included within the local limits of Ahmedabad
Municipal Corporation and which were earlier within the limits of
AUDA, Ahmedabad Municipal Corporation is empowered and had to take
action/steps with respect to grant/ refuse of development permission
and revised development permission and illegal construction.
9. Learned
advocate for the corporation has stated that as the relevant files/
records with respect to the lands/plots which are now included in the
local limits of Ahmedabad Municipal Corporation which were earlier
within the local limits of AUDA are not transferred and/or given to
the corporation, corporation is handicapped and will not be in a
position to take action. Shri Mirza, learned advocate for the AUDA
under the instructions from the officer of the AUDA has made a
statement at the bar that process of transfer of the records/files
with respect to the lands/plots which are now within the local limits
of Ahmedabad Municipal Corporation will be commenced within a period
of two weeks from today and all the records/ files shall be sent to
the corporation within a period of four weeks from today. It is
submitted that however the AUDA may keep the xerox copy of the said
record with them. Concerned respondents are directed to act
accordingly.
10. Now,
so far as the transfer of powers inclusive of land required by the
appropriate authority with respect to 92 schemes which are pending
with the State Government with respect to land now included within
the local limit of Ahmedabad Municipal Corporation is concerned, as
stated and requested by Shri PK Jani, learned Government Pleader
appearing on behalf of the Urban Housing and Urban Development
Department, Government of Gujarat, appropriate action shall be taken
within a period of four months from today without fail as to avoid
such confusion / misconception which implementing the said schemes
and such eventuality may not take place again.
11. Now,
so far as present petition is concerned, in view of the above stand
and the clarification, AUDA shall transfer / send the record with
respect to present case within a period of 10 days from today and on
receipt of the same corporation shall take appropriate action in
accordance with law and after giving opportunity to all concerned
inclusive of the petitioner and respondent no.3 at the earliest but
not later than three months from today. With these, present Special
Civil Application is disposed of. Direct service is permitted.
(M.R.SHAH,
J.)
kaushik
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