Sarjanbhai Shankarbhai Desai vs Rameshbhai Gyanchandbhai Jain & 3 Other(S)

Biren Vaishnav, J

1 Heard Mr.Tushar L. Sheth, learned advocate for the petitioner, Mr. Gaurang Vaghela, learned advocate for R.J.Raval Associates, learned advocate for respondents Nos. 2 and 4 and Mr. Dipak B Patel, learned advocate for respondent No.1 and Mrs. Krishna G Rawal, learned advocate for respondent No.3, Gujarat Housing Board.

2 In this petition under Article 226 of the Constitution of India, the prayer of the petitioner is to direct the respondent No.2 - Corporation and the Housing Board, respondent No.3, to take appropriate action against the respondent No.1, including removal of encroachments.

3 It appears that the respondent No.1 is running a restaurant in the name of Arpit Restaurant and running shops nos. 45 and 46 of Shraddhadeep Complex.

4 This Court, during the pendency of this petition, has passed the following order on 07.12.2018, which reads as under:

"It is the case of the petitioner that in a residential area, though certificate has been issued to the respondent No.1 for a commercial establishment, the Restaurant activity is being carried out throughout the day and upto late night which is contrary to the definition under the Bombay Shops and Establishment Act, 1948.

I have gone through the certificate issued by Ahmedabad Municipal Corporation by which the respondent No.1 has been registered as commercial establishment, however, has referred the same as Restaurant. Considering the peculiar facts of the case, I am of the opinion that following order would meet the ends of justice :-

"The Ahmedabad Municipal Corporation shall examine the case put forward by the petitioner about the illegal encroachment made by the respondent No.1 outside the shop in question as well as also examine the certificate issued to the respondent No.1 for commercial establishment under the Bombay Shops and Establishments Act, 1948 and the activity carried out by the respondent No.1 of running a Restaurant and shall pass appropriate order, after giving an opportunity of hearing to the petitioner as well as respondent No.1. The decision shall be placed before this Court on the next date of hearing."

Stand over to 10.1.2019. "

5 Pursuant to the said order, the Municipal Corporation has filed its affidavit (page 145 of the paper book). Reading the affidavit would indicate that in compliance of the order and the directions issued on 07.12.2018, it is the stand of the Corporation that by virtue of a Circular dated 11.01.2013, the responsibility of removing the illegal construction carried out in the area of the Gujarat Housing Board is of the Gujarat Housing Board. Mr.Vaghela, learned counsel for the Corporation would also draw the attention of the Court to the order dated 01.04.2019 which in compliance of the order of this Court on 07.12.2018 opines that the restaurant is being carried out in accordance with the permission obtained by the respondent No.1.

6 Mr.Tushar L. Sheth, learned advocate for the petitioner, would draw the attention of the Court to the photographs at page 57 of the paper book and submit that unauthorized extensions have been made on the premises, namely, installation of electric lights / fittings and usage of the common space for restaurant at night.

7 Mrs. Raval, learned advocate for the Gujarat Housing Board, would draw the attention of the Court to the Government Circular dated 08.02.2010 which would indicate that the responsibility of removing the encroachments or see that premises within the Housing Board have complied with the permission is that of the local authorities.

8 Considering the grievance of the petitioner that the respondent No.1 is using the commercial premises which has been allotted to him as such for a restaurant and that it is the stand of the Corporation that it is a permissible use, the Corporation and the Gujarat Housing Board together shall re-examine the site at which the resondent No.1 is carrying out his business. This has to be examined in light of submission of learned counsel for respondent No.1 that there are no encroachments made in any part of the premises and the restaurant is being run on the basis of the permission granted by the Corporation.

9 In light of what is stated in the petition and the photographs annexed to the petition at page 56 and 57, copies of which shall be provided by the petitioner to the respondent - Corporation and the Gujarat Housing Board so as to examine the current status and appropriate action shall be taken by both the parties co-ordinating with each other in accordance with law after hearing the respondent No.1 within a period of eight weeks from the date of receipt of the copy of this order. The petition is disposed of, accordingly. Notice is discharged. Direct service is permitted.