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2019 DIGILAW 1099 (GUJ)

Salimbhai Yusuf Surya v. State Of Gujarat

2019-12-02

A.P.THAKER, S.R.BRAHMBHATT

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ORDER : S.R.BRAHMBHATT, J. 1. Heard learned counsels for the parties. 2. The present petition has been taken-out in the form of Writ Petition (PIL) with following prayers. “(A). Admit and allow this petition, (B). Issue a Writ of mandamus or any other appropriate writ, order or directions, directing the respondent authorities to demolish and remove the unauthorised construction of the respondent no.5, at plot no.7 and 8, survey no.3480, at municipal ward no.11-1-1109-1, near Chowpaty road, under the Coastal Regulatory Zone-II (CRZ) area, at Porbandar, District. (C). Pending admission hearing and final disposal of this petition, direct the respondents, their agents and servants to initiate action for stopping further illegal construction of the respondent no.5, at plot no.7 and 8, survey no.3480, at municipal ward no.11-1-1109-1, near Chowpaty road, under the Coastal Regulatory ZoneII, at Porbandar district. (D). Any other and further relief as deemed just and proper may kindly be granted, in the interest of justice.” Thus, essentially the petitioner has submitted that the construction putup by the respondent no.5 on plot nos.7 & 8, Survey no.3480 at Municipal Ward no.11-1-1109-1 near Chopati under the Coastal Regulatory Zone (CRZ) in Porbandar, is contrary to the provision of law and is required to be erased or demolished. 3. The petitioner has placed on record the resolution of Porbandar Nagarpalika being Resolution no.359 dated 15th January 2014 indicating therein that the permission for construction as per the layout plan was conditional on obtaining NOC from CRZ and the remarks column indicates that no permission was obtained. The Porbandar Municipal Board through notice dated 25th March 2015 restrained the respondent no.5 from carrying-out illegal construction immediately. 4. The following facts as gathered from the memo deserves to be setout as under :- 4.1 The petitioner found that a huge multistoreyed building construction was going on near Coastal area of Chopati at Porbandar, which is coming within the periphery of 300 meters of distance i.e. 296.92 mtrs. from the sea cost at the Coastal Regulation Zone. The petitioner is residing in surrounding area since his childhood. The construction which is under progress is carrying on by one New Era Developers and their partners. 4.2 The petitioner thereafter inquired from Porbandar Nagar Seva Sadan under RTI whether there is any permission granted for the said construction of 10 floor building near Lal Palace area Municipal Ward no.11-1-1109 at Chopati road. The construction which is under progress is carrying on by one New Era Developers and their partners. 4.2 The petitioner thereafter inquired from Porbandar Nagar Seva Sadan under RTI whether there is any permission granted for the said construction of 10 floor building near Lal Palace area Municipal Ward no.11-1-1109 at Chopati road. In reply thereto, a Resolution no.359 dated 15th January 2004 passed by the Committee is supplied to the petitioner wherein permission was granted by the Committee, subject to the condition to obtain No Objection Certificate (NOC) by the Forest and Environment Development as the said area is coming in the Coastal Regulation ZoneII (CRZ). The petitioner came to know through another RTI, that there is violation of certain rules of GDCR under Section 119(b) in the said permission, which was granted by Resolution dated 15th January 2014, the Chief Officer of Porbandar Municipality vide Municipal Out. No.2243/2014 dated 24th January 2014 had preferred the appeal before the Porbandar Collector challenging the said resolution dated 15th January 2014 u/s. 6(b) of Gujarat Town Planning and Urban Development Act. 4.3 It is stated that pursuant to filing the appeal, notice is issued and served to the other side and interim stay was granted till final decision by the Porbandar Collector vide order dated 7th February 2014. The respondent no.5 subsequent to the said decision, through Porbandar Nagarpalika forwarded application to the respondent no.1 Secretary of Forest and Environment for granting the NOC for construction of 10 floor multistoreyed complex as per the CRZ norms. 4.4 It is stated the respondent no.1 time and again sought several queries and report with regard to the permission granted till date to any other revised plan for any multistoreyed building in CRZ area at Porbandar. The specific query with regard for granting the permission is that, whether there is any other building of 10 floor, near the said plan of 10 floor building area. The Municipal Chief Commissioner gave reply by letter dated 5th December 2013 indicating therein that till date there is no such high rise building is constructed near the surrounding area of the land in question. Thereafter, the District Collector of Porbandar allowed the Revision Application no.TP Case No.276 of 2014 of the Chief Officer and quashed the resolution no.359 of the Committee of Nagarpalika vide his order dated 7th October 2014. Thereafter, the District Collector of Porbandar allowed the Revision Application no.TP Case No.276 of 2014 of the Chief Officer and quashed the resolution no.359 of the Committee of Nagarpalika vide his order dated 7th October 2014. 4.5 It is stated that on 22nd May 2015, the District Collector, Porbandar wrote a letter to the Additional Secretary, Urban Development Department, Gandhinagar indicating that the planning committee of the relevant Municipality have to function as per the provision laid down by the GDCR and Gujarat Town Planning Rules, 1976 as per the Circular dated 10th August 2000 of the Urban Development Department, Gandhinagar. It is also stated that whenever the planning committee takes the decision on the basis of majority without adhering to the rules then as per Section109 of the Gujarat Town Planning Act, all the powers of town planning committee will have to be taken back and will be handed over to the appointed officer who will perform all the function and responsibility of the planning committee. 4.6 It is also stated that about 152-200 resolution were passed against the law and the Chairman and Town Planning Committee have signed and approved for the construction and layout plan. However, such resolutions were rejected in the revision application u/s.6(b) by the Collector. It is further stated that inspite of that the construction is still continued and no action is taken against them. Hence, the present writ petition in the form of PIL. 5. The affidavit in reply is filed by the respondent no.5, which is placed on record at page no.46 onwards. In the affidavit-in-reply also the respondent no.5 has not pointed-out any permission or no objection from the concerned authority i.e. CRZ. The petitioner in affidavit-in-reply has placed reliance upon Rule-4(1)(c) of 2011 Notification and contended that this being a permissible activity, the same could not have been offending structure. The matter was time and again adjourned. There is no other affidavit of respondent no.5. There are various orders passed by the authorities against the respondent no.5. On 4th May 2016, the Court passed the following order. “Heard Ms.Sandhya D. Natani, learned counsel for the petitioner, Mr.D.M. Devnani, learned Assistant Government Pleader for respondent-State and Mr.Percy Kavina, learned Senior Counsel for the respondent no.5. Applications are pending before the statutory authorities, this order will not preclude to consider such application in accordance with law. On 4th May 2016, the Court passed the following order. “Heard Ms.Sandhya D. Natani, learned counsel for the petitioner, Mr.D.M. Devnani, learned Assistant Government Pleader for respondent-State and Mr.Percy Kavina, learned Senior Counsel for the respondent no.5. Applications are pending before the statutory authorities, this order will not preclude to consider such application in accordance with law. Post the matter on 29th June 2016.” 6. Learned counsel for the respondent no.5 submitted that application for seeking NOC is pending since long and there is no action on the part of the CRZ. 7. Learned counsel for the respondent no.5 invited Court's attention to the Notification dated 18th January 2019 and submitted that as per the said notification the structure in question would not be characterized as offending structure as violative of rules. 8. We are of the view that the said notification is dated 18th January 2019 and respondent no.5 has not bother to place the same on record along with the affidavit stating that the offending structure is covered vide resolution no.359 so as to save the structure, that itself is sufficient to militate his claim that structure being in accordance with law. Apart therefrom, we are also of the view that the respondent no.5 has not moved the authorities including the authority under the rules for seeking appropriate notification. The Coastal Regulation Zone Notification dated 18th January 2019 if at all is of any help to the respondent no.5, the same could have been pressed into service before the concerned authority. Learned counsel for the respondent no.5 in the present case could not pointout any provision in which it can be said that the offending structure is in accordance with law. 9. The fine question warranting consideration in this matter is therefore, whether the Court should issue any direction in light of the payers made in this petition or let there be a proper examination of all the relevant material and facts by the authority before takingup any harsh action against the respondent no.5 and the construction? It is also true that the respondent no.5 has so far not placed the latest notification of 18th January 2019 on the record by appropriate pleadings therefore, when on earlier occasion also this Court under the order dated 4th May 2016 has clearly observed and indicated that the respondent no.5 was not precluded from obtaining appropriate clearance from the authority. It is also true that the respondent no.5 has so far not placed the latest notification of 18th January 2019 on the record by appropriate pleadings therefore, when on earlier occasion also this Court under the order dated 4th May 2016 has clearly observed and indicated that the respondent no.5 was not precluded from obtaining appropriate clearance from the authority. In the interest of justice, following directions deserve to be issued. (i) The concerned Collector of District Porbandar shall issue notice to the respondent no.5 affording him an opportunity of being heard and also of producing any clearance from the concerned authority i.e. CRZ and examine the same and in case if the structure construction is not in accordance therewith or is offending then, appropriate action including demolition be ordered. (ii) The District Collector, Porbandar shall provide fullest opportunity to the respondent no.5 to justify the construction especially in light of CRZ provisions including the notification dated 18th January 2019, if so desired. (iii) The Collector, Porbandar would be at liberty to take assistance from any expert in respect of the CRZ provisions before arriving at any conclusion and passing appropriate order and take action, in case if the structure is found to be offending and contrary to the provision of law. 10. With these observations, the present petition in the form of PIL is disposed of. The entire exercise be completed as expeditiously as possible preferably within 30 days from the date of receipt of writ of this Court. 11. In view of the order passed in the main matter, no orders in the connected civil application and the same is disposed of. Direct service permitted.