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Judgment
Patel, J.—This Public Interest Litigation is filed on account of inaction on the part of respondents No. 1 to 4 under the provisions contained
in the Urban Land (Ceiling & Regulation) Act, Gujarat Town Development Act and Bombay Provincial Municipal Corporations Act, 1949.
Short facts which are required to be considered for disposal of this petition are as under:
2.1 Vatva area, now a part of Ahmedabad City was formerly a part of the Ahmedabad District. At that time, the village Panchayat was required to
look after the civic amenities of the citizens residing in the area. Large number of small factories and industries have been established in the Vatva
area. Limits of Ahmedabad City came to be ex tended in 1989 as a result of which the area of village Vatva came to be included in the limits of
Ahmedabad City.
2.2 The petitioner has pointed out that residential and commercial buildings are constructed illegally in the agricultural land without getting
permission for non-agricultural use from the competent authorities under the Gujarat Town Planning & Urban Development Act, 1976 or Bombay
Provincial Municipal Corporations Act, 1949 (for short, BPMC Act). Builders, head-strong persons and the persons working in the offices of the
respondents No. 1 to 3 have allowed the development of the area illegally by allowing illegal construction of residen tial and commercial buildings.
2.3 It is averred in the petition that the lands bearing survey Nos. 855, 856 and 857 are agricultural lands and are of private respondents, viz.
respondents Nos. 6 to 11. As averred in the petition, these survey numbers, as a matter of fact, are owned by a Public Trust which is known as Pir
Kutube Alam Dargah. The petitioner has averred that he is not aware about the disputes between the private respondents and the said Trust but he
has stated that large scale construction activities commenced on these survey numbers. It is specifically alleged in the petition that about 2000 small
houses comprising of one room and kitchen :have been constructed by respondents Nos. 6 to 11. It is further averred in the petition that the
purchasers are duped by purchasing these small houses. It is apprehended that large number of people occupying such houses would create acute
problems insofar as water and other civic amenities are concerned. It may also create problems: with regard to drainage. It is pointed out that as a
matter of fact, water being used by the residents of these illegally and unauthorisedly constructed houses is caus- ing serious problems to the
citizens of this area.
2.4 It is further averred that the people belonging to the weaker sections of the Society are duped in purchase of these small houses which are
constructed illegally and occupation and use by weaker sections are generally being used as a shield for the purpose of regularisation of illegal
constructions. The petitioner, being an ordinary resident of Vatva, realising the difficulties that are being faced and the difficulties that are likely to
be faced in future by the people of this area made inquiries with the concerned authorities and found that the lands in question are earmarked for
agricultural use. He has stated that the private respondents have not taken any permission from the Collector for making the use of the land for
non-agricultural purposes and thus there is gross violation of the provisions contained in the Land Laws. When large number of houses are being
constructed as averred by the petitioner, it is not possible to believe that the authorities would be unaware about the same.
2.5 It is submitted by the petitioner that for the sake of arguments even if it is believed that the private respondents are the owners of the property,
then also considering the area they were required to file declarations as contemplated under the provisions contained in the Urban Land (Ceiling
and Regulation) Act. 1976. If that be so, the private respondents were required to take a permission from the competent authority under the
aforesaid Act. According to the petitioner there is neither declaration nor permission to use the land as envisaged in Urban Land (Ceiling and
Regulation) Act.
2.6 The petitioner, in this background, submitted that the respondent authorities have failed in performing their statutory duties. It is a case of
inaction on the part of the statutory authorities and the statutory authorities have abetted the private respondents in committing the illegal acts and
omissions.
On 27-1-1999, a Division Bench of this Court issued notice to respondents Nos. 6 to 11 which was made returnable on 10-3-1999. Mr. A. J.
Memon, learned Advocate appeared before the Court on 10-3-1999 and requested the Court to adjourn the matter. Thereafter the Court Issued
notice to respondents No. 1 to 5, and thereafter, con- sidering the affidavits, the Court issued Rule and notice as to interim relief which was made
returnable on 22-11-1999. This Division Bench thereafter directed the office to put up the matter for final hearing in the first week of April, 2000.
Respondent No. 10 Sirajuddin Kutubuddin has filed a reply in the matter. It is submitted by him that the petition is not filed in public interest
against the construction and has further stated that the petition is nothing but an attempt to create problems for the poor and needy people who are
given shelter in the suit land. It is further averred that about 150 poor families who were uprooted from Chartoda Kabarstan lands have settled on
the suit lands. (Some other persons also have purchased the plots which form part of the suit lands is not referred by the deponent). It is suggested
that the owners of the land have executed an agreement to sale on 16-7-1998 in favour of (1). Sharifkhan Navabkhan Pathan, residingnear
Shahalam Roza, Ahmedabad, (2). Aarifbhai Husainbhai Kureshi residing at 20 Aleef Apts., Danilimda village, Ahmedabad. (3). Sajid Yunusbhai
Memon residing at Patel Vas, Danilimda, Ahmedabad, (4). Shah Najurkhan Saida Azimkhan Pathan residing at Golden Park, Vatva, and, (5).
Shafakhatali Gulamali Saiyad residing at Opp. Roza, Vatva. The deponent has admitted that they agreed to sell the suit lands to the aforesaid
persons by much reduced price though other parties offered much higher price for the suit land. It appears that the suggestion made by the
respondent No. 10 is that the purchasers assured that the suit land will he made available for housing accommodation to poor and needy people of
the community and in fact, has further stated in the affidavit that 150 families have been provided accommodation. It is in view of this the deponent
has stated that the petition is not filed in public interest.
It is required to be noted that neither the respondents Nos. 6 to 11 nor their Advocates remained present at the time of hearing of this matter.
They have filed no reply to the affidavit filed on behalf of the Ahmedabad Municipal Corporation.
On behalf of the Ahmedabad Municipal Corporation, affidavit is filed by Town Development Officer. In the affidavit it is pointed out that in the
disputed survey number Nos. 855 and 857, as it was found that persons have commenced illegal construction, injunction orders u/s 267 of the
BPMC Act were issued on different dates to the persons concerned. It is further pointed out that the Corporation posted security guards with a
view to restrain them from further construction. Notices u/s 261-A of the BPMC Act were issued on 1-2-1999 and 21-5-1999. No reply was
received from anyone. Thereafter, the Corporation issued orders u/s 260(2) of the Act on various dates i.e. 26-3-1999 and 17-8-1999 for
removal of unauthorised constructions. It is pointed out in the affidavit that these orders were challenged by filing various Civil Suits before the City
Civil Court without issuing statutory notice. Subsequently, the suits were withdrawn and again suits were filed. Copies of notices are placed on
record. From the notice it appears that the persons concerned were not engaged in construction of houses for weaker sections but in fact they
were found constructing row houses, eight in number. There is a report made by the Town Development Inspector which is placed on record.
From that report it appears that the construction commenced without permission of the Municipal Corporation. From the report it also appears
that survey Nos. 856 and 857 were shown in the names of (1). Jallauddin Kutubddin, (2). Sirajuddln Kutubddin (3). Nazruddin Kutubddin, (4).
Kanijhusein Kutubddin, (5). Vazirbhai Kutubddin, (6). Badrunissa Kutubddin, and (7) Umarbhai Kureshi. (It may be noted that respondents Nos.
6 to 11 stated that there was an agreement to sale and reading the affidavit it is clear that no such agreement is executed in favour of these
persons). In the report there is also a sketch. Looking to the report it appears that the construction of row houses is without permission and the
row houses admeasure 25.90 X 3.90 mtrs. No counter is filed by any of the private respondents to the affidavit filed by the Town Development
Officer.
From the record, it is very clear that no evidence is produced before the Corporation indicating that the land in question where the construction
is being carried out belongs to the persons for whose benefit the construction is being carried out. No application is given to the Corporation
indicating intention to carry out any construction. Permission is required for commencing any construction activities, before the commence- ment of
any construction. Even earlier notices have been issued restraining them from continuing with the construction any further. Notice u/s 260(2) further
indicates that a decision has been taken to demolish the construction being illegal and the aforesaid six persons were called upon to show cause as
to why the construction should not be demolished. It appears that under the orders of the Court the aforesaid persons continued the illegal
construction activities. From the list enclosed with the affidavit of the Corporation it appears that under the orders obtained from the Court below
the illegal construction activities commenced and continued without obtaining permission.
The trial Court, while passing an order in such matters should, instead of granting ex parte ad interim orders, should call upon the
respondents/authorities if the Court is prima facie of the opinion that there is much substance in what the applicant states. Powers conferred upon
the authorities have to be exercised after following the procedure contemplated. Therefore, before restraining the authorities, it is necessary for the
plaintiffs to point out prima facie that no illegality has been committed by them. The plaintiffs should produce evidence indicating that they are the
owners and/or authorised occupiers of the land and that the construction commenced only after obtaining due permission from the Corporation.
The Courts cannot take a very casual approach in granting ex parte ad interim orders.
It is required to be noted that the lands being costlier the prices have been shot up like anything. Inflow to cities from rural areas may be
responsible for urbanisation. People are in need of housing accommodation. However, when under the law duty is cast upon the local authorities to
grant permission for construction if it is in accordance with law. The Court has to consider whether the construction which is being carried out by
the persons is in accordance with law or not. If the Court decides this point against the plaintiff after the construction is completed, then in such
case, the Court is required to pass an order of demolition of the construction which would be waste of money, energy and property. Even others
who may subsequently occupy may suffer. Innocent, needy persons who have migrated to the City are duped to buy such property or are
systematically inducted in the property, it is very likely that if the Court on evidence is required to dismiss the suit, sucb persons are likely to be
affected adversely. It is no doubt true that buyer must inquire about the right and title of the property and this would also include in cases of
constructed property, constructed in accordance with the laws. If the property is not constructed in accordance with law, the occupier will be the
sufferer. Therefore in such; a situation it is more desirable for the Court to wait for some time, and on evidence being placed before it, only after
satisfying, should pass an order, and not casually.
In the instant case, as indicated, it appears from the affidavit filed by the private respondent that some part of the suit land was agreed to be
sold in favour of Sharifkhan Navabkhan Pathan and others. Respondent No. 10 has further stated in his affidavit that those people who purchased
the land were required to construct houses for the poor persons, and, therefore, they agreed to sell the land at much lower price. The documents
produced by the Corporation indicates to the contrary. Row Houses are being constructed and that too of size admeasuring 104 sq. mtr.
approximately of plinth area and the total construction of each row house would be much more. When property Is not transferred in accordance
with law, how the person in possession can commence the construction work without plan being approved.
We are also compelled to say few words about the attitude of the officers of the local authorities. In several matters, the officers of the local
authorities fail to take prompt actions. In metropolitan and other large cities, day by day illegal construction activities are found increasing. It is the
duty of the highly paid officers of the local authorities to be more vigilant and careful and more attentive towards their duties. From the facts of this
case, ii appears that after the TDD has filed the affidavit, the Corporation has riot done anything. Learned Advocate for the Corporation was not in
a position to point out as to why, for restraining the illegal construction, further proceedings have not been initiated before the higher forum.
Learned Advocate appearing for the petitioner submitted that as the officers of the Corporation have joined hands with Sharifkhan Navabkhan
Pathan and others, they would not bother to challenge the order passed by the trial Court. We are of the opinion that looking to the facts and
circumstances of the case, it is very clear that the officers of the Corporation have remained actively silent and except paper work and objection on
paper, have not done anything. Respondents Nos. 6 to 10 even have not bothered to file further affidavit giving reply to the affidavit filed on behalf
of Ahmedabad Municipal Corporation and if that be so, there is no reason for this Court not to accept the averments made in the affidavit filed by
the Town Development Officer pointing out that illegal constructions commenced by the private respondents and as Corporation has remained
mere spectator after certain stage, it would not be improper to draw an inference that the work continued with the consent or connivance of the
officers. When there is only an agreement to sell, property does not pass. How one would permit to construct is the real question and from
conduct, it is clear that the construction work is unauthorised, illegal and in contravention of the provisions contained in the BPMC Act.
It is required to be noted that when a person is constructing a building, it is incumbent upon him to approach the local authority or any other
appropriate authority for approval of a plan for the purpose of construction of a building and only after permission being granted as per the
approved plan, construction is to be carried out. If the person is investing money in construction without obtaining prior permission of the
authorities, he is taking the risk. When the law has made it very clear that construction can be made only after approval is granted by local
authority, i.e. In the instant case Ahmedabad Municipal Corporation, it is the bounden duty of the respondent authority, i.e. Municipal
Commissioner not to permit any unauthorised construction within the area of the Corporation. The local body has to grant permission only after
being satisfied about the conditions as envisaged in bylaws and rules. If every one is permitted to construct houses according to the sweet-will, it
will create chaos in the society. Under the Town Development Act and the BPMC Act, Municipal Commissioner of Ahmedabad Municipal
Corporation is required to allow to raise construction only in accordance with law.
It is required to be noted that the BPMC Act is applicable in the area to solve the problems arising in the area and not to create. There are
building regulations which contemplate that the person intending to make a building has to give a notice to the Municipal Commissioner of his
intention, in the prescribed form. Whatever information as may be required to be furnished under the bye-laws is to be furnished. Even for addition
or alteration etc. notice is required to be given to the authority. Plans are to be accepted provided the same are drawn, prepared and signed in the
manner prescribed in the bye-laws. Even after the commencement of the work, supervision of a building is contemplated in Section 254 of the
BPMC Act. If permission is obtained by misrepresentation, such permission can be cancelled and any work done, shall be deemed to have been
done without permission. Thus the powers exercised u/s 268 are not to be interfered lightly. Inspection of building in course of erection, alteration
etc. Is contemplated u/s 259 of the Act. Section 269 contemplates proceedings to be taken in respect of building or work commenced contrary to
the rules or bye-laws. The legislature has thus cast a duty on the Municipal Commissioner to see that the building work is not commenced without
approval of plan and is completed in accordance with the rules and bye-laws as per approved plan. Looking to the language of Section 260, it
appears that the legislature has empowered the Commissioner to take action with a view to see that anyone is constructing a building, is
constructing strictly in accordance with bye-laws. All are to be treated equally and for use of the land, there should be no discrimination in allowing
the use of property. It is the duty of the Commissioner to see that there is enforcement of the provisions concerning building and building works. A
person has to commence the construction as per the approved plans only. If the construction is as per the plans approved by the Corporation, then
such construction can be said to be in accordance with law. Provisions are also made to regularise for safety, health and well-being of the
inhabitants of the area. This provision is not to be understood as a provision to regularise illegal, unauthorised construction. If the authorities are
changing the floor space index according to sweet-will of certain persons or the authorities are regularising unauthorised constructions, the same
would be illegal, contrary to law and would amount to defeating the provisions of law. By exercising the powers not vested, unauthorised
constructions cannot be regularised. These provisions are required to be read in such a manner so as to see that the intention of the legislature is
met with and not frustrated. These provisions are to be understood for the betterment of the Society and are to be interpreted so as to achieve the
object and not to frustrate the object.
It is well settled that when a question of construction comes before the Court, intention of the legislature as expressed must be given effect to
and must be expressed by the Court in the language of the section or provision. If according to a citizen the Municipal Commissioner has rejected
his application for construction, then the remedy is provided. It would be open for him to approach the appropriate forum, but he cannot
commence construction work without prior permission. The trial Court should not pass mandatory order so that the construction is completed
before the suit is disposed of. Even after appearance by the Local Authority, the Court must examine strictly whether there is compliance of all the
rules/bye-laws or not. If Court thinks it reasonable, then it must proceed with the suit. Instead of granting an injunction or stay order. The Court
granting injunction must realise that by the time the suit is heard, construction will be completed and right may be created in favour of third parties
and that would put such parties to inconvenience. It must be borne in mind that the authorities are required to act in accordance with law, and if the
Court Is satisfied that the authorities, instead of acting in accordance with law wrongly withheld the permission, then the Court must proceed with
the matter day to day instead of granting any order so as not to cause serious prejudice to the third parties. Bye laws/ Rules for erection or
alteration of a building are in the interest of general public. Duty is cast on the officers exercising the powers keeping in mind the provisions of the
Act. Ordinarily, presumption is that the official acts performed in discharge of the duties are performed in accordance with law. Therefore, there
must be evidence to rebut such presumption. By statement and nothing more, presumption is not rebutted. There must be sufficient evidence and
therefore it would be proper for the Court hearing ap- plication to proceed with the suit, rather than granting the application. Now a days suits are
not disposed of within a reasonable period for various reasons. When a suit in such a case is placed for hearing after completion of construction,
the owner and builder may not be interested as after erection of a building, the builder/owner would transfer the property and the occupiers may
have to suffer later on. Thus, with a view to see that innocent purchasers/occupiers may not be the sufferer in case suit is dismissed, the Court,
considering the interest of innocent transferees, must proceed with the suit, instead of granting interim relief.
It is the duty of the Court below to examine the Act, rules, and bye-laws made under the Act and thereafter to decide the suit. The Court
cannot hold that the Municipal Commissioner has illegally withheld permission of construction soon after the plaint is presented. That order can be
passed only at the end of a full-fledged trial. In any event, we are of the opinion that when the Corporation has restrained a person from continuing
construction by issuing a notice, it is not advisable for the Courts to pass orders which would assist the unauthorised occupant of the land or
persons constructing unauthorisedly to complete the unauthorised construction.
The Apex Court in the case of M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others, has pointed out that unauthorised construction
should be demolished even though the builder has invested considerable amount. The Apex Court pointed as under in paragraph 73 (p. 529): (of
SCC): (at p. 2505 of AIR, Para 82) :
This Court in numerous decisions has held that no consideration should be shown to the builder or any other persons where construction is
unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to
exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality.
Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be
guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to
exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions.
Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles.
Mr. Joshi learned Advocate submitted that the petitioner has no interest whatsoever either in the property which is being constructed by the
builders illegally, or has no interest whatsoever in the land. He submitted that he is a resident of village Vatva and on account of unauthorised
construction in the area, that has created problem for the local residents insofar as it concerns with the life and well being, traffic and public or civic
amenities are concerned. He submitted that he has filed this petition only for the betterment of the Society and public at large, and not for benefiting
himself or any other individual personally. He submitted that despite the fact that on the record it has been placed that the construction is being
carried out without the authority or permission, it must be stopped at once and no one should be allowed to construct without prior approval of the
authorities concerned.
In view of the fact that the construction is being carried out without permission granted by the Corporation, it is directed that the respondent
Corporation shall not permit the respondents or any one else to raise any further construction in the said plots and shall not regularise any
constructed so far. It is further directed that if any essential supply is provided by the Corporation, it shall at once be disconnected.
Ahmedabad Electricity Company, having its office at Lal Darwaja, Ahmedabad though not a party to this proceedings, in view of the
unauthorised construction, is directed not to supply electric energy to the occupants of unauthorised structures in the suit land, (Survey Nos. 855
and 857, Vatva) and if it is already supplied, it (sic).
This petition stands allowed with the aforesaid directions. Rule is made absolute in the aforesaid terms. No order as to costs. Registry is
directed to issue writ to Ahmedabad Electricity Company as per paragraph 19 of this judgment.