{"id":241717,"date":"2010-07-15T00:00:00","date_gmt":"2010-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tejas-vs-ahmedabad-on-15-july-2010"},"modified":"2018-10-05T02:51:19","modified_gmt":"2018-10-04T21:21:19","slug":"tejas-vs-ahmedabad-on-15-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tejas-vs-ahmedabad-on-15-july-2010","title":{"rendered":"Tejas vs Ahmedabad on 15 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Tejas vs Ahmedabad on 15 July, 2010<\/div>\n
Author: M.R. Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/987\/2010\t 11\/ 13\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 987 of 2010\n \n\n=====================================================\n\n\n \n\nTEJAS\nCO-OP HOUSING SOCIETY LTD - Petitioner(s)\n \n\nVersus\n \n\nAHMEDABAD\nURBAN DEVELOPMENT AUTHORITY & 3 - Respondent(s)\n \n\n=====================================================\nAppearance : \nMR\nJC VYAS for Petitioner(s) : 1, \nNOTICE SERVED BY DS for\nRespondent(s) : 1 - 3. \nMR ADIL R MIRZA for Respondent(s) : 1, \nMR\nDHAVAL G NANAVATI for Respondent(s) : 2, \nMR UDAY R BHATT for\nRespondent(s) : 3, \nMR PK JANI,GOVERNMENT PLEADER for Respondent(s)\n: 4, \n===================================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 15\/07\/2010 \n\n \n\nORAL\nORDER<\/pre>\n
\tBy
\nway of this petition under Article 226 of the  Constitution of India,
\npetitioner Tejas Cooperative Housing Society Limited through its
\nChairman has prayed for an appropriate writ, direction and order
\ndirecting the respondent nos. 1 and 2 i.e. Ahmedabad Urban
\nDevelopment Authority (herein after referred to as the  AUDA )
\nand Ahmedabad Municipal Corporation to take appropriate action
\nagainst respondent no.3 for (i) encroachment on the public road\n<\/p>\n
(ii)unauthorized and illegal construction in his residential house
\nbearing tenament No.48 of the petitioner society (iii) converting the
\nuse of the said tenanment from residential into commercial by
\nconstructing and letting three shops to different persons.\n<\/p>\n
2.\tIt
\nis the case on behalf of the petitioner that  inspite of petitioner’s
\napproaching various authorities and the officers of respondent nos. 1
\nand 2, no steps are taken by respondent nos. 1 and 2 with respect to
\nillegal construction put up by respondent no.3.\n<\/p>\n
3.\tAn
\naffidavit in reply has been filed on behalf of respondent no.1 AUDA
\npointing out that on receiving the representations by the petitioner
\nsociety dated 7.02.2008 and 15.2.2008 with respect to certain illegal
\nconstruction put up by respondent no.3 herein in contravention to the
\ndevelopment permission and the sanctioned plan, as the area where the
\npetitioner society was situated has been merged into limits of the
\nAhmedabad Municipal Corporation, the office of the AUDA
\nintimated\/informed the Corporation on 09.06.2008, to take appropriate
\naction and said facts were also brought to the notice of the Urban
\nDevelopment Department, Gandhinagar vide letter dated 11.6.2008.
\nTherefore, it is submitted that so far as AUDA is concerned, they
\nhave taken all the steps to see that grievance of the petitioner
\nsociety is appropriately redressed. It is specifically mentioned in
\nthe reply filed by AUDA that as now area has been merged into the
\nlimits of the Ahmedabad Municipal Corporation, the petitioner society
\nnow have to raise the grievances with respondent no.2 so that the
\nsaid grievances can be appropriately redressed as it is now within
\nthe jurisdiction of the corporation to taken appropriate action in
\nthe matter as the area in question now merged into the corporation
\nlimits.\n<\/p>\n
4.\tAffidavit
\nin reply has been filed on behalf of respondent no.2 – Ahmedabad
\nMunicipal Corporation and in the said affidavit the corporation has
\ncome out with the following defence as so stated in para  4 to 7,
\nwhich reads as under:\n<\/p>\n
 4.\tIt
\nis stated that the area in question was earlier under the
\nadministrative control of the Ahmedabad Urban Development Authority,
\nbut the said area has merged into Administrative Control of the
\nAhmedabad Municipal Corporation by a notification bearing
\nNo.KV\/25\/2006\/AMN\/902006\/410\/P dated 14.02.2005 and notification of
\neven dated 20.07.2006.  The said notifications had been made
\neffective since the midnights of 14.02.2006 and 20.07.2006
\nrespectively.  However, it is pertinent to note that though the area
\nin question is merged into the administrative control of the
\nanswering respondent, but the Ahmedabad Urban Development Authority
\nhas not handed over the administrative powers under the Gujarat Town
\nPlanning and Urban Development Act to the
\nanswering respondent and taking all the administrative decisions
\npertaining to the Town Planning Scheme under the Gujarat Town
\nPlanning and Urban Development Act.\n<\/p>\n
5.\tIt
\nis stated that even from the order issued by the Department of Urban
\nDevelopment and Urban Housing Department of the State Government vide
\norder No.UDA   112006   2795   V dated July 07, 2006 exercising
\npowers vested under section 122 of the Gujarat Town Planning and
\nUrban Development Act 1976 the State Government has made it very
\nclear that by only certain and specific powers which are available
\nu\/S.27,28,29,30,31,32,33,34,35,36,37,38,39 and 49 of Gujarat Town
\nPlanning and Urban Development Act 1976 have been and were
\ntransferred to the answering respondents   Corporation vide that
\norder and other powers other then mentioned will be exercised by the
\nAhmedabad Urban Development Authority.\n<\/p>\n
6.\tIt
\nis stated that it becomes clear from the order dated July 07, 2006
\nthat at time of merger of the areas under AUDA to the Corporation,
\nthe State Government has transferred certain and specific powers of
\nthe Gujarat Town Planning and Urban Development Act 1976 to the
\nanswering respondent   Corporation and other powers other
\nthen the powers mentioned in the said order
\nhave been vested with the Ahmedabad Urban Development Authority and
\nthe AUDA will have to exercise those powers which are not transferred
\nto corporation by the State Government. While transferring the powers
\nthe State Government has specifically not transferred the powers
\nvested under Sections 67 and 68 of the Act read with Rule 33 of the
\nGujarat Town Planning and Urban Development Rules 1976, which
\nempowered the authority to evict the person or structure to the
\nanswering respondent. It is also pertinent to the state at this stage
\nthe Chief Executive Authority of Ahmedabad urban Development
\nAuthority was also aware about the same arrangement and considering
\nthe much said arrangement has passed an order bearing no.
\nPlanning\/Pariptra\/AMC\/Limit dated 18.12.2006, whereby the CEA has
\nordered that in respect of the areas transferred to the AMC, AMC can
\nexercise the powers vested in Sections 27 to 39 of the Gujarat Town
\nPlanning and Urban Development Act 1976 for the chapters registered
\non or after 01.01.2007 otherwise the chapters which are already
\nregistered with AUDA on or before 31.12.2006 the AUDA will take all
\nthe necessary steps of issuing the Development Permission and
\nremoving the illegal constructions
\nin respect of the chapters registered
\nwith them on or before 31.12.2006.\n<\/p>\n
7.\tIt
\nis pertinent to note at this stage and it’s a matter of record that
\nthe Ahmedabad Urban Development Authority   AUDA   respondent
\nNo.1 herein has not supplied and handed over the records pertaining
\nto the property in question.  It is further stated that the answering
\nrespondent   Corporation has time and again reminded the respondent
\nNo.1 through the Senior Town Planner to intimate the answering
\nrespondents about the steps taken by them in this regards besides the
\nwritten communication dated 20\/2\/2010 to the respondent No.1 in this
\nregards .\n<\/p>\n
5.\tLooking
\nto the aforsaid inter se dispute between the AUDA and Ahmedabad
\nMunicipal Corporation and  powers to be exercised by the AUDA and
\nAhmedabad Municipal Corporation with respect to the plots which were
\ninitially within the local limits of AUDA but subsequently merged
\ninto Ahmedabad Municipal Corporation and considering inter se dispute
\nbetween the AUDA and the Corporation with respect to taking steps for
\nillegal construction and\/ or any other steps with respect to such
\nplots\/lands which are now included within the local limits of the
\nAhmedabad Municipal Corporation, this Court directed \/ permitted the
\npetitioner to Join Secretary, Urban Housing and Urban Development
\nDepartment, Government of Gujarat to clarify the position and to
\nremove the doubt.\n<\/p>\n
6.\tIn
\nresponse to the notice issued by this Court, Shri PK Jani, learned
\nGovernment Pleader has appeared on behalf of newly added respondent
\ni.e. Secretary, Urban Housing and Urban Development Department,
\nGovernment of Gujarat and an affidavit in reply has been filed on
\nbehalf of the State Government affirmed by Shri P.L. Sharma, Officer
\non Special Duty and Ex-officio, Joint Secretary Urban Housing and
\nUrban Development Department, Government of Gujarat and it has been
\npointed out that as such the stand which is taken by both the
\nrespondent authorities i.e. AUDA and Ahmedabad Municipal Corporation
\nwas never brought to the notice of the State Government and
\ntherefore, the State Government was not at all aware of the problem
\nfaced at the ground level. It is submitted that it is always open to
\nboth the respondents authority to approach the State Government for
\nclarification, if there is any misconception, confusion or
\nmisunderstanding as regards the order dated 18.12.2006. It is further
\npointed out and clarified in para 3 of the said affidavit in reply
\nthat Ahmedabad Municipal Corporation is empowered to take decision
\nwith respect to powers to be exercised under Sections 27 to 39 and 49
\nof the Gujarat Town Planning and Urban Development Act. It is further
\nclarified that accordingly Ahmedabad Municipal Corporation can decide
\nto grant or refuse any development permission inclusive of revised
\ndevelopment permission and also take action with respect to illegal
\nconstruction. Para 3 of the affidavit in reply reads as under:\n<\/p>\n
 3.
\nI say and submit that vide Notification dated 20.7.2006 passed by the
\nUrban Development and Urban Housing Department, Government of
\nGujarat, the area of Ghatlodiya was included in the Municipal limits
\nof Ahmedabad City. It is pertinent to note that, vide order dated
\n18.12.2006, the State Government in Urban Development and Urban
\nHousing Department had directed the Ahmedabad Urban Development
\nAuthority to transfer the powers under Sections 27 to 39 and 49 of
\nthe Gujarat Town Planning and Urban Development Act, 1976 forthwith.
\nIt is pertinent to note that the said order came to be passed
\npursuant to the proposal submitted by the Ahmedabad Urban Development
\nAuthority dated 1.11.2006 under Section 22(3) of the Gujarat Town
\nPlanning and Urban Development Act, 1976 and accordingly the
\nAhmedabad Municipal Corporation is empowered to take decisions with
\nrespect to the above referred clauses and accordingly Ahmedabad
\nMunicipal Corporation can decide to grant or refuse any development
\npermission and also take action with regard to the illegal
\nconstruction .\n<\/p>\n
7.\tIt
\nis further submitted in the said reply that as per sub-section (a) of
\nSection 67 of the  Gujarat Town Planning and Urban Development Act,
\nall lands required by the appropriate authority shall unless it is
\notherwise determined in such manner, vest absolutely in the
\nappropriate authority free from all encumbrances, thereby the land
\nrequired in the scheme vests with AUDA.\n<\/p>\n
\tIn
\npara 6 of the said reply, it is further submitted that in the areas
\nincluded and which now form part of Ahmedabad Municipal Corporation
\nlimits, AUDA has prepared 93 town planning schemes on land
\nadmeasuring 148.34 sq.mtr and from among them few schemes are at
\ndifferent stages of implementation. It is submitted that on the
\nsanction of the scheme, vide section 67 of the Act, some land vests
\nwith the appropriate authority. It is submitted that in many such
\nschemes the AUDA has carried out development and thereby liabilities
\nare created. It is submitted that, therefore, with regard to the
\ntransfer of powers to Ahmedabad Municipal Corporation, to avoid
\nfurther complications, a comprehensive assessment of responsibilities
\nhas to be taken and only pursuant to that decision to transfer the
\npowers to implement the town planning schemes shall be taken and till
\nthan AUDA is empowered to implement it. Shri Jani, learned Government
\nPleader under the instructions from the Officer on Special Duty and
\nEx-officio, Joint Secretary Urban Housing and Urban Development
\nDepartment, Government of Gujarat, who is present in the Court has
\nmade a statement that decision with respect to above inclusive of
\nlands required by the appropriate authority on sanctioning the Town
\nPlanning Scheme (with respect to the land included into the limits of
\nthe Ahmedabad Municipal Corporation) as well as transfer of powers
\nwith respect to aforesaid 92 schemes with respect to land now
\nincluded into the limits of the Ahmedabad Municipal Corporation shall
\nbe taken by the Government within a period of three months from
\ntoday.\n<\/p>\n
8.\tConsidering
\nthe stand taken by the respondent authorities i.e. AUDA and Ahmedabad
\nMunicipal Corporation, it appears that there was misconception and\/
\nor confusion amongst the officer of the AUDA and Ahmedabad Municipal
\nCorporation with respect to exercise of powers for granting
\ndevelopment permission inclusive of revised development permission as
\nwell as to take action against  illegal construction with respect to
\nthe lands\/plots now included into local limits of the Ahmedabad
\nMunicipal Corporation which were earlier within the local limits
\nAUDA. It has now been made clear and\/ or clarified by the State
\nGovernment as recorded herein above, and as affirmed by the Officer
\non Special Duty and Ex-officio, Joint Secretary Urban Housing and
\nUrban Development Department, Government of Gujarat. Therefore, as
\nper the above, as clarified by the Officer on Special Duty and
\nEx-officio, Joint Secretary Urban Housing and Urban Development
\nDepartment, Government of Gujarat, power to sanction \/ grant and\/or
\nrefuse the development permission and \/or to take action with respect
\nto the illegal construction with respect to the lands\/plots which are
\nincluded in the limits of Ahmedabad Municipal Corporation, which were
\nearlier within the local limits of AUDA shall be with the Ahmedabad
\nMunicipal Corporation and, therefore, concerned authorities i.e. AUDA
\nand Ahmedabad Municipal Corporation are required to take appropriate
\naction in accordance with law and on merits and thus for the lands
\n\/plots which are now included within the local limits of Ahmedabad
\nMunicipal Corporation and which were earlier within the limits of
\nAUDA, Ahmedabad Municipal Corporation is empowered and had to take
\naction\/steps with respect to grant\/ refuse of development permission
\nand revised development permission and illegal construction.\n<\/p>\n
9.\tLearned
\nadvocate for the corporation has stated that as the relevant files\/
\nrecords with respect to the lands\/plots which are now included in the
\nlocal limits of Ahmedabad Municipal Corporation which were  earlier
\nwithin the local limits of AUDA are not transferred and\/or given to
\nthe corporation, corporation is handicapped and will not be in a
\nposition to take action. Shri Mirza, learned advocate for the AUDA
\nunder the instructions from the officer of the AUDA has made a
\nstatement at the bar that process of transfer of the records\/files
\nwith respect to the lands\/plots which are now within the local limits
\nof Ahmedabad Municipal Corporation will be commenced within a period
\nof two weeks from today and all the records\/ files shall be sent to
\nthe corporation within a period of four weeks from today. It is
\nsubmitted that however the AUDA may keep the xerox copy of the said
\nrecord  with them. Concerned respondents are directed to act
\naccordingly.\n<\/p>\n
10.\tNow,
\nso far as the transfer of powers inclusive of land required by the
\nappropriate authority with respect to 92 schemes which are pending
\nwith the State Government with respect to land now included within
\nthe local limit of Ahmedabad Municipal Corporation is concerned, as
\nstated and requested by Shri PK Jani, learned Government Pleader
\nappearing on behalf of the     Urban Housing and Urban Development
\nDepartment, Government of Gujarat,  appropriate action shall be taken
\nwithin a period of four months from today without fail  as to avoid
\nsuch confusion \/ misconception  which implementing the said schemes
\nand such eventuality may not take place again.\n<\/p>\n
11.\tNow,
\nso far as present petition is concerned, in view of the above stand
\nand the clarification, AUDA shall transfer \/ send the record with
\nrespect to present case within a period of 10 days from today and on
\nreceipt of the same corporation shall take appropriate action in
\naccordance with law and after giving opportunity to all concerned
\ninclusive of the petitioner and respondent no.3 at the earliest but
\nnot later than three months from today. With these, present Special
\nCivil Application  is disposed of. Direct service is permitted.\n<\/p>\n
(M.R.SHAH,
\nJ.)<\/p>\n
kaushik<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Tejas vs Ahmedabad on 15 July, 2010 Author: M.R. Shah,&Nbsp; Gujarat High Court Case Information System Print 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 – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-241717","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nTejas vs Ahmedabad on 15 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tejas-vs-ahmedabad-on-15-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tejas vs Ahmedabad on 15 July, 2010 - 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