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Judgment
This appeal is directed against the order dated 12.7.2016 passed by the learned Single Judge of this Court in Special Civil Application no.11141 of
2016 under Clause 15 of the Letters Patent.
Heard Mr. Ajay L. Pandav, learned advocate for the appellant and Mr. Deep Vyas, learned advocate for the respondents.
Following facts emerge from the record of the appeal:Â
That, the appellant â€" original petitioner claims that by virtue of a document styled as sale deed executed on Rs.420/ stamp papers, the appellant
has purchased the property being survey no.56/1 part, subÂplot no.14, situated at Isanpur of Ahmedabad city admeasuring 88 sq. yards. Record
indicates that the appellant has constructed the dwelling and he occupies the same. As per the record of the Municipal Corporation, the land is shown
to be in the name of Nirmal society. The appellant was served with a notice as provided under Section 267 of the Gujarat Provincial Municipal
Corporations Act, 1949 (hereinafter referred to as “the Act†for the sake of brevity) on 16.6.2016. By the said notice, the respondentÂ‐
Corporation informed the appellant that he has started making construction without any permission on the land in question being part of Town Planning
Scheme no.38/1, Final Plot no.3, subÂplot no.14 and the extent of such illegal construction was also mentioned in the said notice. It clearly appears
from the record that as the said notice was not obeyed by the appellant, the respondentÂCorporation issued a show cause notice as provided under
Section 260(1) of the Act dated 17.6.2016 which was served upon the appellant on 18.6.2016 along with the chart of the illegal construction. The
petitioner, by a written reply dated 21.6.2016, contended that all members of the society have constructed on their own and when the appellant
purchased the property, the same was constructed only upto plinth level and the appellant also contended that the other members have also made
illegal construction and the appellant thus made an attempt to justify the construction made by the appellant. The appellant was given an opportunity of
being heard by the competent authority of the Municipal Corporation and ultimately, by an order dated 24.6.2016 passed under Section 260(2) of the
Act, the respondentÂCorporation, in exercise of powers conferred under Section 260 of the Act, came to the conclusion that the construction made is
illegal and de hors the provisions of the Act and further directed the appellant to remove the construction within three days. The said decision taken by
the respondent Corporation was challenged by way of filing a writ petition being Special Civil Application no.11141 of 2016. Along with the said
petition, the petitioner also filed an additional affidavit, wherein it is declared on oath by the appellant that he would remove the construction according
to the sketch drawn by the Ahmedabad Municipal Corporation along with the notice dated 17.6.2016 under Section 260(1) of the Act. It is also stated
by the appellant in the said affidavit that his house bearing tenement no.14 is constructed in the margin land since long back as per the sale deed that
may be protected. The learned Single Judge, by the impugned order dated 12.7.2016, dismissed the petition. As the petition came to be dismissed, the
present appeal is filed.
Mr. Ajay L. Pandav, learned advocate for the appellant has taken this Court through the factual matrix arising out of this appeal and has contended
that the impugned order as well as the decision taken by the Corporation is illegal and the appeal deserves to be allowed. It is submitted that though
the society is not registered, the fact remains that the appellant has purchased the property from the original owner and the sale deed is also made part
of the record of the main petition and therefore, the learned Single Judge has wrongly come to the conclusion that it is not a transfer in favour of the
appellant. It is further contended that as the tax is paid, the property of the appellant deserves to be protected. It is further submitted that action taken
by the respondentÂCorporation is discriminatory as in the very society, many other houses are there, wherein illegal construction is made. It is also
contended that as such the portion which was covering the road has already been removed by the respondentÂCorporation as per the order dated
14.7.2016 passed by this Court while issuing notice in the present appeal. On the aforesaid grounds, it is therefore contended that the appeal may be
allowed.
Per contra, Mr. Deep Vyas, learned advocate for the respondents has supported the impugned order as well as the orders passed under Section
260(2) of the Act by the respondent Corporation. It is contended that the whole construction made by the appellant is without any permission under
the provisions of the Act and the learned Single Judge has therefore rightly come to the conclusion that no interference is called for and the appeal,
being meritÂless, deserves to be dismissed.
No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
Having heard the learned advocates appearing for the respective parties and on perusal of the record and proceedings, it deserves to be noted that
the soÂcalled sale deed in favour of the appellant is found to have been executed on stamp paper of Rs.420/Â and thereafter, it appears that the
appellant has further paid additional stamp duty of Rs.670/Â.
Section 253 of the Act reads as under:Â
“253(1) Every person who shall intend to erect a building shall give to the Commissioner notice of his said intention in the form prescribed in the
bylaws and containing all such information as may be required to be furnished under the byÂlaws.
(2) Every such notice shall be signed is the manner prescribed in the byÂlaws and shall be accompanied by such documents and plans as may be so
prescribed.
(3) In this Chapter the expression ""to erect a building"" meansÂÂ
(a) newly to erect a building on any site whether previously built upon or not,
(b) to reÂerectÂÂ
(i) any building of which more than one half of the cubical contents of the building above the level of the plinth have been pulled down, burnt, or
destroyed,
(ii) any masonry building of which more than threeÂfourths of the superficial area of the external walls above the level of the plinth has been pulled
down, or
(iii) any frame building of which more than three quarters of the number of the posts or beams in the external walls have been pulled down,
(c) to convert into a dwelling house any building or part of a building not originally constructed for human habitation or, if originally so constructed,
appropriated for any other purpose,
(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only,
(e) to convert by any structural alteration into a place of religious worship or into a sacred building any place or building not originally, meant or
constructed for such purpose,
(f) to roof or cover an open space between walls or buildings as regards the structure which is formed by roofing or covering such space,
(g) to convert by a structural alteration two or more tenements in a building into a greater or lesser number,
(h) to make any structural alteration in a building so as to affect its drainage or sanitary arrangements or its stability,
(i) to convert into a stall, shop, warehouse or godown any building not originally constructed for use as such, or
(j) to construct in a wall adjoining any street or land not vested in the owner of the wall, a door opening on such street or land, and each of the above
operations shall be deemed to be the erection of s new building for the purposes of this Chapter.â€
From the whole record, it clearly transpires that before making any construction, the appellant has not given any notice nor has taken any
permission under the provisions of the Act. It deserves to be noted that the land in question is situated at Isanpur within the city limits of Ahmedabad
and therefore, before making any construction, a person is required to obtain permission as envisaged under the provisions of the Act as well as under
the relevant provisions of the Gujarat“253(1) Every person who shall intend to erect a building shall give to the Commissioner notice of his said
intention in the form prescribed in the bylaws and containing all such information as may be required to be furnished under the byÂlaws.
(2) Every such notice shall be signed is the manner prescribed in the by laws and shall be accompanied by such documents and plans as may be so
prescribed.
(3) In this Chapter the expression ""to erect a building"" meansÂÂ
(a) newly to erect a building on any site whether previously built upon or not,
(b) to reÂerectÂÂ
(i) any building of which more than oneÂhalf of the cubical contents of the building above the level of the plinth have been pulled down, burnt, or
destroyed,
(ii) any masonry building of which more than threeÂfourths of the superficial area of the external walls above the level of the plinth has been pulled
down, or
(iii) any frame building of which more than three quarters of the number of the posts or beams in the external walls have been pulled down,
(c) to convert into a dwelling house any building or part of a building not originally constructed for human habitation or, if originally so constructed,
appropriated for any other purpose,
(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only,
(e) to convert by any structural alteration into a place of religious worship or into a sacred building any place or building not originally, meant or
constructed for such purpose,
(f) to roof or cover an open space between walls or buildings as regards the structure which is formed by roofing or covering such space,
(g) to convert by a structural alteration two or more tenements in a building into a greater or lesser number,
(h) to make any structural alteration in a building so as to affect its drainage or sanitary arrangements or its stability,
(i) to convert into a stall, shop, warehouse or godown any building not originally constructed for use as such, or
(j)to construct in a wall adjoining any street or land not vested in the owner of the wall, a door opening on such street or land, and each of the above
operations shall be deemed to be the erection of s new building for the purposes of this Chapter.†Town Planning and Urban Development Act, 1976,
which is in popular parlance known as Raja Chitthi or permission to construct and after the construction is made, such person is required to have
Building Use permission as provided under the provisions of the Act as well as the Gujarat Town Planning and Urban Development Act, 1976 read
with the relevant provisions of the General Development Control Regulations applicable. In the case on hand, no such permission whatsoever has been
obtained by the appellant. The order impugned dated 24.6.2016 passed by the Corporation under Section 260(2) of the Act clearly shows that the
construction made by the appellant is without any permission. It is also observed that the construction made by the appellant is without any notice
which, as such, is provided under Section 253 of the Act. Merely because the premises in question is subjected to the house tax rules and house tax is
being levied and paid by the appellant would not make the illegal construction legal. Even the contention raised by Mr. Pandav, learned advocate for
the appellant that other properties situated in the same society are not constructed after due permission also does not take the case of the appellant
any further. Only because the respondent Corporation does not take the action against the other persons, the impugned notice or further orders
which are impugned in the appeal cannot be said to be violative of Article 14 of the Constitution of India as there cannot be a negative equality.
Considering the observations made by the learned Single Judge as observed hereinabove, more particularly, in Paragraphs 4 to 6 of the impugned
order, we are in total agreement with the same and any interference in exercise of statutory power for removal of such unauthorized construction
would be granting premium to such illegality committed by the appellant. Even if the additional affidavit is looked at, the appellant himself is much
aware about the fact that the construction made by the appellant is without any permission and illegal. The learned Single Judge has therefore rightly
not exercised his discretion under Article 226 of the Constitution of India. The appeal is therefore is devoid of any merit and the same is hereby
dismissed.
Mr. Pandav, at the end, submitted that the petitioner intends to make an application under the General Development Control Regulations as
applicable as on date. If any such application is made within a period of one month from today, the Municipal authorities shall look into it strictly on
merits and in accordance with law. It is, however, clarified that this Court has not expressed any opinion on merits of such application, if any,
preferred by the appellant.
As the appeal is not entertained, Civil Application also stands dismissed. AdÂinterim relief granted earlier stands vacated. However, there shall be
no order as to costs.