Ratna Trayi Aaradhna Bhavan Trust and Another vs State of Gujarat and Others

D.A. Mehta, J.—Considering the scope of the controversy and the view that the Court is inclined to adopt, the petition is taken up for final hearing and disposal today. Rule Learned advocates appearing for the respondents are directed to waive service.

The petitioner, a religious Trust, amongst various objects, has the object of constructing and establishing Jain Temples, etc. On 11.03.2003 land bearing Final Plot No. 489 of T.P. Scheme No. 6, popularly described No. 34, Vasant Kunj Society, Paldi, Ahmedabad, came to be purchased by the petitioner-Trust. The petitioner wanted to construct Derasar on the said plot and, therefore, submitted plans for construction on 19.05.2006 to respondent-Ahmedabad Municipal Corporation. It is not necessary to refer to the round of litigation prior thereto relating to construction that was to be put up before the plan was sanctioned. According to the petitioners, even in the building plan tendered for approval and sanction, the petitioners had provided for extra parking space on Plot No. 46 of Vasant Kunj Society, namely, F.P. No. 501.

The petitioners were informed vide communication dated 22.06.2006 that the plot in question abutted on a T.P. Road having width of 6 mtrs. the plan could not be sanctioned. The petitioners thereupon approached the Appellate Committee, after paying necessary fees on 01.08.2006. As for considerable time the Appellate Committee had not taken any decision, a petition being Special Civil Application No. 2736 of 2008 came to be filed before this Court. Vide order dated 23.04.2008 the petition was disposed of directing the petitioners to submit a fresh Memorandum of Appeal or representation to the Appellate Committee and the Appellate Committee was directed to decide the same within a period of 02 (two) months therefrom. On 22.04.2008 the petitioners filed representation/written submissions and also seeking opportunity of hearing. On 15.05.2008 the Appellate Committee has dismissed the appeal confirming the decision of the Assistant Town Planning Officer.

On behalf of the petitioners a grievance is made in the present petition, challenging the order of the Appellate Committee, that the impugned order could not have been made without an opportunity of hearing being granted. As against that the stand of the respondent authority, more particularly the Appellate Committee, is that the relevant regulation of General Development Control Regulations (the Regulations) does not provide for any such hearing and hence, the Committee is not bound to grant any hearing. Learned advocate for respondent No. 3, the Appellate Committee, has categorically made the statement on the basis of written instructions received by the learned advocate.

In light of the aforesaid fact situation, though various submissions have been made on merits of the controversy, more particularly the interpretation of Regulation No. 12.1(A)(b) of the Regulations read with the definition Clause as appearing in Regulation No. 2.9(a) of the Regulations, it is not necessary to reproduce and deal with the said submissions for the reasons that follow hereinafter.

Under Regulation No. 29, which relates to Supplemental and Miscellaneous Provisions, there are three Sub-regulations: Regulation No. 29.1 relating to Interpretation, Regulation No. 29.2 pertaining to Discretionary Powers available to the competent authority; and Regulation No. 29.3 providing for the Appeal Committee. The said regulation as is material for the present reads as under:

29.3 Appeal Committee

The Authority shall form an appeal committee consisting of

Chairman, A.U.D.A. (Chairman)

Municipal Commissioner, Ahmedabad Municipal Corporation

Chief Executive Authority of A.U.D.A. (Member Secretary)

Senior Town Planner of A.U.D.A.

Town Development Officer, A.M.C.

Representative of G.I.C.E.A.

Representative of C.E.P.T., Ahmedabad

This Committee shall only function for any dispute arising for interpretation of the Development Control Regulation.

In case of any person referring his case to the committee, the person shall have to pay appeal fee equal to the amount paid as scrutiny fee to Ahmedabad Urban Development Authority.

A plain reading makes it clear that the Appeal Committee shall only function for any dispute arising in relation to interpretation of the Development Control Regulations, and where a person refers his case to the Committee, fees at the prescribed rate have to be paid. It is not in dispute that the petitioners had approached the Appeal Committee after paying the prescribed fees. When the provision itself relates to resolving of a dispute arising from interpretation of any of the Development Control Regulations, even if the provision does not specifically provide for an opportunity of hearing one will have to read the same in the provision. The concept of an appeal itself envisages an opportunity of hearing being granted to the person who is aggrieved. Only if the person is aggrieved by the interpretation placed by the competent authority would a question of filing an appeal arise. Once an appeal is filed the function of the Appellate Committee commences, and the function being to resolve the dispute as to interpretation, the Appellate Committee has to consider the view point of both the sides, namely, the interpretation canvassed by each of the disputing parties. The constitution of the Appeal Committee itself indicates that the Town Development Officer/Town Planner is a party to the Committee. It is not possible then to exclude a person, who is aggrieved by the decision taken by the said authority, interpreting a particular provision, which interpretation is adverse to the person who is filing the appeal, from being granted a hearing.

Therefore, the stand of the Appellate Committee that no opportunity of hearing is required to be granted cannot be accepted. In case of every appeal filed before the Appellate Committee under Regulation No. 29.3 of the Regulations the Appellate Committee is bound to hear the person aggrieved, unless and until the right to such hearing is waived by the appellant.

In the circumstances, the decision rendered by the Appellate Committee on 15.05.2008 is hereby quashed and set aside and, as a consequence, the appeal of the petitioners stands restored to file before the Appellate Committee for being decided afresh in accordance with law, after granting a reasonable opportunity of hearing to the petitioners. The Appellate Committee shall preferably decide the matter within a period of 03 (three) months from today.

The petition is accordingly allowed in the aforesaid terms. Rule made absolute. There shall be no order as to costs.