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2017 DIGILAW 1101 (GUJ)

Dilip Nagindas Soni v. State of Gujarat

2017-06-27

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2017
JUDGMENT : VIPUL M. PANCHOLI, J. 1. This petition is filed in the nature of public interest litigation by the petitioner with the prayers which read as under: “12(A) That the petitioner prays that this Hon'ble Court may be pleased to issue an appropriate writ in exercise of extraordinary jurisdiction under article 226 of Constitution of India directing the Respondent authorities for revoking the construction permission granted in favour of Respondent No. 4 & 5 for the construction of low-rise building whereby the Respondent No. 4 has started the construction of high-rise building in the name of “Shreeji Gold” over survey no. 255 of Draft Town Planning Scheme no. 10 (Gotri-Gorva). (B) That the petitioner prays that this Hon'ble Court may be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction holding that the respondent No. 4 builder has acted in contravention of the approval accorded by the authorities and is carrying out construction of the high rise building over the plot of land abutting 12 mtr. Road in contravention of the GDCR and further be pleased to hold that though such act on part of the Respondent builder was within the knowledge the authorities, the authorities have failed to take effective measures against the delinquent builder. (C) That the petitioner prays that this Hon'ble Court may be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the respondent authorities to revoke the construction permission of the Respondent builder apropos the construction of building over survey no. 255 of Draft Town Planning Scheme no. 10 (Gotri-Gorva) and further be pleased to direct the Respondent authorities to initiate appropriate actions of demolition of illegal construction with immediate effect with a view to safeguard the interest of public at large so that situation like Campa-cola Colony-Mumbai may not take place. (D) That this Hon'ble Court may further be pleased to direct the Respondent builder to public advertisement in daily news papers having wide circulation in the city of Vadodara to inform the public at large about the nature of construction permitted by the Respondent authorities. (D) That this Hon'ble Court may further be pleased to direct the Respondent builder to public advertisement in daily news papers having wide circulation in the city of Vadodara to inform the public at large about the nature of construction permitted by the Respondent authorities. (E) That during the pendency of the present PIL this Hon'ble Court may be pleased to direct the respondents to stop the construction of residential cum commercial scheme in the name of “Shreeji Gold” as evidently the same is sought to be carried out in unauthorized manner. (F) That this Hon'ble Court may be pleased to pass any further relief/s as may be deemed just and proper in the interest of justice.” 2. Heard learned Senior Counsel Mr. Dave assisted by learned Counsel Mr. Gori for the petitioner, learned Senior Counsel Mr. Oza assisted by learned Counsel Mr. Kapadiya for opponent no. 4, learned Senior Counsel Mr. Naik assisted by learned Counsel Mr. Adhvaryu for opponent no. 5. 2.1 Learned senior counsel Mr. Dave submitted that respondent nos. 4 and 5 have submitted a plan before the respondents-authorities seeking permission for carrying out the construction of low rise building. The said plan has been sanctioned by the officers of respondent nos. 2 and 3. It is submitted that the respondents-authorities permitted respondent no. 4 to carry out the construction of low rise building over survey no. 255 falling within the draft town planning scheme no. 10 (Gotri-Gorva). It is further submitted that though permission has been granted by the respondents-authorities for a low rise building, the respondent no. 4 has started construction for a high rise building and started floating the scheme in the name of Shreeji Gold. In the brochure published by respondent no. 4, it is stated that the said scheme is for luxurious/high-end residential units as well as commercial units and though permission has been given for a low rise building, construction is being carried out as high rise building. Learned Counsel referred to documentary evidence produced with the petition in support of his submissions. 2.2 Learned counsel further submitted that in the brochure published by respondent no. 4, incorrect measurements are mentioned and though width of the road abutting survey no. 255 of draft town planning scheme is 12 mtrs. only, in the brochure, the same has been shown as that of 36 mtrs. 2.2 Learned counsel further submitted that in the brochure published by respondent no. 4, incorrect measurements are mentioned and though width of the road abutting survey no. 255 of draft town planning scheme is 12 mtrs. only, in the brochure, the same has been shown as that of 36 mtrs. It is alleged that the respondents-authorities have, without ascertaining the factual aspect and without examining the draft submitted before it, granted the approval. At this stage, it is also submitted that though permission for carrying out construction of low rise building has been granted by respondents-authorities, the respondent no. 4 has unauthorizedly commenced the construction of high rise building on the basis that the width of the road is 36 mtrs. abutting to the aforesaid survey number and therefore FSI would be of 2.5. It is submitted that, in fact, the width of the road is 12 mtrs. and therefore as per the GDCR, the respondent no. 4 is entitled to use FSI of 1.6 and therefore the respondents-authorities have granted permission to construct low rise building. Thus, it is alleged that respondent no. 4 has carried out the unauthorized construction and therefore the petitioner approached this Court in the year 2014. 2.3 Learned senior counsel Mr. Dave thereafter would submit that the respondents- authorities have granted the development permission for the entire land admeasuring 11,736 sq. mtr. of survey no. 255. In fact, as per the policy of the government, the respondent- Corporation is entitled for 40% reservation qua the holding of the land owner. Thus, the respondent-Corporation has permitted respondent no. 4 to carry out construction over the entire plot of land. At this stage, learned Counsel has placed reliance upon the affidavit filed by the respondent-Corporation in Writ Petition (PIL) No. 111 of 2013 wherein the respondent-Corporation has stated that the authorities provided for 40% deduction while granting building permission. However, in the present case, admittedly the requirement of deduction of 40% of land while granting building construction permission has been given a go by. It is submitted that out of total land admeasuring 11,736 sq. mtrs. the respondent-Corporation was required to deduct 4694 sq. mtrs. of land for keeping the same reserved for public purpose. At this stage, learned counsel Mr. It is submitted that out of total land admeasuring 11,736 sq. mtrs. the respondent-Corporation was required to deduct 4694 sq. mtrs. of land for keeping the same reserved for public purpose. At this stage, learned counsel Mr. Dave submitted that during the pendency of the present petition, the draft town planning scheme is implemented wherein the respondent-Corporation has deducted 22% of the land instead of 40% as per the requirement of law. Thus, now the respondent no. 4 is entitled to use 9095 sq. mtrs. of land out of 11736 sq. mtrs. of land. The respondent no. 4 has produced form no. F pointing out the aforesaid deduction with the Civil Application filed by him. However, the same is nothing but an eye-wash and as such the respondents-authorities assisted the respondent no. 4 by undertaking exercise of construction of town planning road at their own cost in the society of respondent no. 4. It is pointed out that the respondents- authorities have shown 7.50 sq. mtrs. road in the draft plan but the same is within the boundaries of the scheme floated by respondent no. 4. Such road would be used by the residents of the said scheme only and therefore the said deduction cannot be considered to be as a deduction as per the policy of respondents. 2.4 Learned counsel Mr. Dave thereafter alternatively submitted that, if it is not possible for the respondents-authorities to deduct 40% of the land out of total 11736 sq. mtrs. of land as the construction of low rise building is over as on date, then the respondents-authorities may be directed to ask the petitioner to deposit the amount for said 40% of the land. Learned counsel, thereafter, submitted that looking to the illegalities committed by the respondents-authorities as well as respondent no. 4, the reliefs prayed for in the present petition be granted. 3. On the other hand, learned senior Counsel Mr. Oza appearing for the respondent no. 4 denied the allegation made by the petitioner that the respondent no. 4 has started construction for high rise building. It is contended that the respondent no. 4 has constructed low rise building as per the permission granted by the respondents-authorities. Respondent no. 4 has not committed any illegality or made any unauthorized construction as alleged by the petitioner. Learned counsel Mr. Oza submitted that even assuming that width of the road is 12 mtrs. It is contended that the respondent no. 4 has constructed low rise building as per the permission granted by the respondents-authorities. Respondent no. 4 has not committed any illegality or made any unauthorized construction as alleged by the petitioner. Learned counsel Mr. Oza submitted that even assuming that width of the road is 12 mtrs. abutting to the plot in question, even then as per GDCR, the construction permission can be granted for low rise building and in the present case, such permission is granted by the respondents-authorities to the respondent no. 4 and therefore there is no question of committing illegality by the respondents-authorities or respondent no. 4 as alleged by the petitioner. It is contended that though respondent no. 4 has applied for permission for additional floors, the said application is pending with the respondent- Corporation and till date the same is not granted. Learned counsel further contended that the respondent no. 4 is ready and willing to give an undertaking that unless and until the permission is granted by the respondent- Corporation for construction of additional floors, respondent no. 4 will not make any further construction. 3.1 Learned senior counsel Mr. Oza thereafter would contend that respondent no. 4 submitted an application for development permission on 6.2.2010 to the respondents- authorities and paid the necessary charges. However, looking to the litigation pending between the original owners, the said application was not processed. Thereafter, non-agricultural permission was granted by the Collector for the land in question and therefore the development permission was in fact granted on 5.5.2014. In the meantime, the notification dated 21.3.2013 was issued by the government for deduction of 40% of land. However, the application was given by respondent no. 4 in the year 2010 and at that time, necessary fees were paid. In absence of non-agricultural permission, the respondent-Corporation did not grant development permission. Thus, in view of the peculiar facts, 40% of land was not deducted by the respondent-Corporation. It is, therefore, submitted that the respondent no. 4 or the respondent-Corporation has not committed any illegality as alleged by the petitioner. 3.2 Learned senior counsel Mr. Oza submitted that the petitioner has filed the present petition only against respondent no. 4 with malafide intention and though he is residing 3 kms. away from the land in question, he has filed the present petition. 4 or the respondent-Corporation has not committed any illegality as alleged by the petitioner. 3.2 Learned senior counsel Mr. Oza submitted that the petitioner has filed the present petition only against respondent no. 4 with malafide intention and though he is residing 3 kms. away from the land in question, he has filed the present petition. Similar type of permissions are granted by the respondent-Corporation in favour of other persons. However, he has not challenged the same. Thus, looking to the mala-fide intention of the petitioner also, this Court may not entertain this petition. 3.3 Learned counsel referred to the order dated 14.12.2015 passed by this Court in the present proceedings whereby this Court directed the respondents to submit the details as to whether recovery of money by way of development charge or otherwise in the TP scheme is permissible in the event the construction is already made and it is not possible to surrender the land in the T.P. scheme. If yes, basis of the valuation of the land in question prevailing in the area and the amount which may be payable shall also be submitted. Thus, it is submitted that the respondent no. 4 is ready and willing to file an undertaking before this Court that respondent no. 4 is ready and willing to pay the development charges for 40% of the total land in question till the Committee decides the actual development charge payable by the respondent no. 4. 3.4 During the course of hearing, learned counsel Mr. Oza has placed on record the undertaking of respondent no. 4 dated 13.6.2017, which is taken on record, wherein the respondent no. 4 has stated on oath that he will not put any further construction than which stands today on the land in question except grant of prior approval of the competent authority. It is further stated that jantri price of the land in question as on 5.5.2014 was Rs. 10250/- per sq. mtr. and therefore 40% of the total area of the land in question would come to 4694 sq. mtr. for which the respondent no. 4 is ready to deposit an amount of Rs. 4,81,13,500/- either before this Court or before the authority within the stipulated time limit. Learned counsel, therefore, submitted that in view of the subsequent development and in view of the aforesaid undertaking given by respondent no. mtr. for which the respondent no. 4 is ready to deposit an amount of Rs. 4,81,13,500/- either before this Court or before the authority within the stipulated time limit. Learned counsel, therefore, submitted that in view of the subsequent development and in view of the aforesaid undertaking given by respondent no. 4, this Court may dispose off this petition. 4. Learned Counsel Mr. Maulik Nanavati appearing for respondent-Corporation submitted that the respondent-Corporation has not committed any illegality as alleged by the petitioner. In fact, the respondent-Corporation has granted permission to the respondent no. 4 to construct low rise building as per GDCR. It is further submitted that the application for grant of development permission for the land in question was received by the respondent- Corporation on 6.2.2010. The permission was sought for construction of residential building comprising of ground floor and four floors. The said application was accompanied by requisite documents showing legal evidence of right to develop or build on the land and a site plan together with the other documents that need to be attached with the application. The scrutiny fee was also deposited with the Corporation. Therefore, noting was made on the file recommending grant of approval of development permission. Thereafter, Deputy Commissioner, after verifying the papers and noting, approved the development permission. However, nonagricultural permission was not available because of the pending legal dispute with regard to the ownership of the land in question and therefore it was decided to put issuance of formal development permission on hold till the conclusion of the legal dispute. Ultimately, when the District Collector granted permission for non- agricultural use of the land in question in March, 2014, the respondent-Corporation granted development permission on 5.5.2014. The policy of the government to deduct 40% of the land for public purpose was introduced in the year 2013 i.e. after the receipt of the application from the respondent no. 4 in the year 2010 and therefore the respondent- Corporation did not insist for 40% deduction of the land. However, thereafter, when the draft planning scheme is implemented, 20%-22% from the land in question was deducted. However, issue with regard to payment of development charges for 40% of the land in question and the amount thereof would be considered by the concerned Committee and if it is found that respondent no. However, thereafter, when the draft planning scheme is implemented, 20%-22% from the land in question was deducted. However, issue with regard to payment of development charges for 40% of the land in question and the amount thereof would be considered by the concerned Committee and if it is found that respondent no. 4 is liable to pay the amount for the aforesaid land, the same would be charged from respondent no. 4. Learned Counsel, therefore, submitted that in view of the interim orders passed by this Court in the present proceedings and in view of the development which has taken place during the pendency of the present petition, the petitioner is not entitled to claim the reliefs as prayed for and therefore the present petition be disposed off accordingly. 5. Learned senior counsel Mr. Naik has supported the submissions canvassed by learned senior counsel Mr. Oza. 6. We have considered the submissions canvassed on behalf of learned Counsels appearing for the parties. We have also gone through the material produced on record. It has emerged that in the year 2014, when the present writ petition came to be filed, the petitioner has mainly raised two contentions namely that though respondent-Corporation has granted development permission for construction of low rise building, the respondent no. 4 has started construction for high rise building. In support of the said contention, reliance is placed on the brochure as well as the advertisement given by respondent no. 4. The case of the petitioner is that the respondent no. 4 has shown road abutting to the land in question on 36 mtr. width. However, there is road abutting to the land in question which is of 12 mtr. width only. As per GDCR, the respondent-authorities can grant permission for low rise building only. Another contention is that while granting development permission in the year 2014, the respondent-Corporation has not deducted 40% of the land from the land in question as per the policy of the government and thereby committed illegality. However, during the pendency of the present petition, it has come on record that the respondent- Corporation has implemented draft town planning scheme wherein road having 7.5 mtr. width is shown in the plot in question. Thus, approximately 20%-22% of the land from the land in question is deducted. The respondent no. 4 has produced Form `F' on record with the Civil Application filed by him. width is shown in the plot in question. Thus, approximately 20%-22% of the land from the land in question is deducted. The respondent no. 4 has produced Form `F' on record with the Civil Application filed by him. We are not convinced with the submission made by learned Counsel for respondent no. 4 as well as respondent-Corporation that the application was given by respondent no. 4 for grant of development permission in the year 2010 and therefore when the policy of the government to deduct 40% of the land was introduced in the year 2013, the said policy would not be applicable to the respondent no. 4. It is not in dispute that the actual development permission was granted to the respondent no. 4 on 5.5.2014 i.e. after the introduction of the policy issued by the respondent-State in the year 2013. Thus, we are of the view that the respondent-Corporation was duty bound to follow the policy of the state government introduced in the year 2013. 7. It is not in dispute that the respondent no. 4 has already constructed ground + four floors as per the development permission granted by the respondent-Corporation and therefore at this stage, the question would be whether 40% of the land can be deducted from the land in question as per the policy of the government. It has come on record that the respondent no. 4 has already sold certain flats to the concerned customers, third party rights are also created. Therefore, we are of the opinion that it would not be proper to pass the order of demolition of such construction. Therefore, the next question would be whether the respondent no. 4 is liable to make the payment of development charges to the respondent- Corporation or not? This Court on 14.12.2015 passed an interim order in the present petition which reads as under: “The respondents shall submit the details as to whether recovery of money by way of development charge or otherwise in T.P. Scheme is permissible in the event the construction is already made and it is not possible to surrender the land for T.P. Scheme. If yes, the basis of the valuation of the land in question prevailing in the area and the amount which may be payable shall also be submitted. If yes, the basis of the valuation of the land in question prevailing in the area and the amount which may be payable shall also be submitted. It is further observed that the details of the valuation charge in respect of the plot in question shall also be submitted. The aforesaid details shall be submitted by the respondent No. 1 as well as respondent No. 2. The details be given to the learned advocates appearing for the respective parties by 18th December, 2015. Stand over to 21st December, 2015. Till then the interim relief granted earlier shall continue.” 8. The Chief Town Planning Officer of respondent-Corporation thereafter filed an affidavit on 18.3.2016 wherein it has been stated that the guidelines issued by the Town Planning and Valuation Department, Government of Gujarat wherein the aspects which are to be considered by the authority while altering boundaries of the original plots at the time of preparing draft scheme are mentioned. One of the aspects to be considered by the authorities is whether construction exceeds on the original plot of land and such construction is made under a lawful development permission granted by the competent authority. The guidelines provided that as far as possible, attempt must be made by the draftsmen to retain or not to disturb the construction unless it is necessary for the purpose of laying or widening of a public road. Thus, the discretion is vested with the draftsman to permit retention of the existing construction on the land subject to imminent necessity for a public purpose. It is further stated that in such type of cases, the amount payable by the owner of the land towards cost of the scheme and development charges are determined by the competent authority. While determining such amount, the factum of permitting retention of existing structure and other accompanying relevant factors enumerated in law are also be kept in mind. It is further stated that the necessary calculation of amount payable by the land owner and the development charges may be done in accordance with law by the concerned authority. 9. Thus, from the aforesaid facts and circumstances of the case, when the construction is already made on the land in question and if it is not possible to deduct 40% of the land as per the policy, the respondent no. 9. Thus, from the aforesaid facts and circumstances of the case, when the construction is already made on the land in question and if it is not possible to deduct 40% of the land as per the policy, the respondent no. 4 is liable to make the payment of development charges to the respondent-Corporation as per the policy of the respondent-authorities. However, it is required to be noted at this stage that 22% of the land is already deducted by providing 7.5 mtr. road in the draft town planning scheme as per the case of the respondent no. 4 and respondent-Corporation whereas the case of the petitioner is that the said road and deduction of so called 22% of land cannot be considered towards deduction of 40% of land as per the policy of the respondent-authorities. The said issue is also required to be examined by the concerned respondents-authorities. 10. Respondent no. 4 has, during the course of submissions, submitted an undertaking on affidavit wherein the respondent no. 4 has stated as under: “1. I hereby undertake and solemnly declare that I shall not put any further construction than the which stand today on the land in question bearing Survey No 255 of Mouje Village-Gorwa, Vadodara save and except grant of prior approval by the competent authority. 2. The Jantri price of the land in question as on 05.05.2014 was Rs. 10250 per sq. mtr. The 40% of the total area of land admeasuring 11736 sq. mtr. would come to 4694 sq. mtr. (11736 – 7042 = 4694 sq. mtr.) I shall deposit by way of cheque or demand draft of sum of Rs.10250x4694 which would come 4,81,13,500 (four crores eighty one lac thirteen thousand five hundred) either in this Hon'ble Court or before any authority that the Hon'ble Court direct me to deposit within 6 months from the date of the order. Copy of the extract showing the Jantri price of the land in question is annexed herewith and marked as Annexure-A. I further undertake that as and when appropriate authority decides the actual amount to be paid of difference of 4694 sq. mtrs. and if that amount exceeds of present deposit I shall make good payment of difference amount within period of 8 weeks from the date of communication. mtrs. and if that amount exceeds of present deposit I shall make good payment of difference amount within period of 8 weeks from the date of communication. In case if according to me the amount charged is very excessive even in that case I will deposit the amount first and then challenge the fixation of the amount.” 11. In view of the aforesaid facts and circumstances of the present case, this petition is disposed off with the following directions: (1) Respondent no. 4 shall not carry out construction other than the construction for which development permission is granted. However, it is open for the respondent-Corporation to consider the application of the respondent no. 4 for carrying out the further construction and grant development permission in accordance with law. (2) As per the undertaking given by respondent no. 4, he shall deposit an amount of Rs. 4,81,13,500/- (Rupees four crores eighty one lakh thirteen thousand five hundred) within a period of six months from the date of this order before the respondent-Corporation. However, out of the aforesaid amount, respondent no. 4 shall deposit an amount of Rs. 2,40,00,000 (Rupees two crores forty lacs) within a period of eight weeks from today before the respondent-Corporation and the remaining amount of Rs. 2,41,13,500/- (Rupees two crores forty one lac thirteen thousand five hundred only) shall be deposited by him within a period of four months thereafter before the respondent-Corporation. It is clarified that till the amount of Rs. 2,40,00,000/- (Rupees two crores forty lakhs) is deposited by respondent no. 4 with the respondent-Corporation, stay granted by this Court vide order dated 21.10.2015 in the present matter will remain in force. However, it is further clarified that after deposit of the aforesaid amount of Rs. 2,40,00,000/- (Rupees two crores forty lakhs only), the stay granted earlier shall stand vacated. (3) It is open for the appropriate authority to decide the actual amount to be paid by respondent no. 4 towards the development charges for land admeasuring 4694 sq. mtrs. If the amount of development charges fixed is higher than the amount which is deposited by respondent no. 4, the respondent no. 4 shall deposit the same with the respondent- Corporation subject to challenging the fixation of the said amount by the appropriate authority and if the amount of development charges fixed is lesser than the amount which is deposited by respondent no. 4, the respondent no. 4 shall deposit the same with the respondent- Corporation subject to challenging the fixation of the said amount by the appropriate authority and if the amount of development charges fixed is lesser than the amount which is deposited by respondent no. 4, the respondent- Corporation shall refund the excess amount to respondent no. 4. 3.1 However, it is clarified that the issue of 22% of the land deducted in draft town planning scheme from the total land in question can be considered as deduction towards 40% of land as per policy or not shall also be decided by the appropriate authority. If the appropriate authority is of the opinion that 22% of the land deducted in draft town planning scheme is required to be considered towards deduction of 40% of the land as per the policy, then the respondent no. 4 is liable to pay the development charges for the remaining 18% of the land out of total 11,736 sq. mtrs. (4) The respondent no. 4 shall abide by the undertaking dated 13.6.2017 given before this Court. 12. As the petition itself is disposed off with the above directions, civil applications also stand disposed off.