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2022 DIGILAW 1235 (GUJ)

Jasbirsingh Didaarsingh Whala v. State Of Gujarat

2022-10-06

SANDEEP N.BHATT

body2022
JUDGMENT : 1. The petitioner has mainly challenged the notice impugned dated 28.05.2021 issued by the respondent – Vadodara Municipal Corporation as well as the subsequent sealing of premises situated at Royal Park Cooperative Housing Society Plot No.10 and further seeking direction against the respondent authorities to open the seal. 2. Heard learned advocates for the respective parties at legnth. 3. Rule. Learned advocates waive service of notice of rule on behalf of respective respondents. 4.1 Mr. Jamshed Kavina, learned advocate with Mr.S.P. Majmudar, learned advocate for the petitioner has submitted that the impugned notice of the Corporation is per se bad and illegal, as hearing is not given to the petitioner prior to issuance of the same. He has submitted that the Corporation has to follow the procedure before issuing the notice under Section 36 of the Town Planning and Urban Development Act (‘the Act’ for short), there is a power to require removal of unauthorised development or use. He has also submitted that the Corporation has sealed the premises and thereby acted contrary to the provisions of Section 37 of the Act as such action can only be taken when the development made on the land is of a temporary nature. He has submitted that under the Act, the Corporation has to give time of 15 days. He has submitted that the Corporation has given time of only seven days in the impugned notice. Therefore, he has submitted that the impugned notice is not issued in accordance with the provisions of law and Act. In support of his submissions, he has relied upon the decision of this Court in the case of Govindbhai Mavjibhai Patel versus State of Gujarat recorded on Special Civil Application No.19319 of 2017 and other allied matters, and has submitted that this Court has also considered the provisions of Section 36 of the Act and has found that such action of the Corporation is not in accordance with law. He has submitted that the facts of that case and the present case are identical and therefore, the said ratio may be applied in this case. He has submitted that the facts of that case and the present case are identical and therefore, the said ratio may be applied in this case. 4.2 He has further submitted that from various documents i.e. tax bills issued by the Corporation as well as other documents – light bills, which specifically mention the address of the petitioner as 10, Royal Park Cooperative Housing Society Limited and therefore, it is an admitted fact that the petitioner is in possession of the Plot No.10 and is enjoying plot since many years. 4.3 He has further submitted that the petitioner has filed Lavad Suit (Arbitration Suit) in the year 2021 before the Board of Nominees for Plot No.10, which is the subject matter of the present petition, where the Society is the contesting party and claiming that, the said Plot i.e. Plot No.10 is a common plot of the Society. 4.4 He has further submitted that the present petitioner is also a member of the Society. He has drawn attention of this Court to the Share Certificate issued on 20.09.1989, which is on record. 4.5 He has also submitted that at the relevant time, the construction plan was approved by the Vadodara Urban Development Authority and therefore, the construction in question cannot be said illegal and/or unauthorised. He has submitted that the Corporation has no authority to decide the issue as to whether the Plot in question is a common plot or not. He has submitted that the said issue can be decided by the Board of Nominees only. 4.6 He has submitted that the Authority has sealed the premises since there is no power under the provisions of the Act and therefore, the action of the Corporation is bad. 4.7 In support of his submissions, he has relied upon the decisions of this Court :- (i) Jiteshkumar Kanchanlal Gandhi versus State of Gujarat recorded on Special Civil Application No.15358 of 2019, dated 22.10.2019 and (ii) Vodafone Essar Gujarat Limited versus Khambhalia nagarpalika recorded on Special Civil Applications No.146 of 2009 & 147 of 2009, dated 13.01.2009. 4.8 He has submitted that this petition may be allowed by quashing and setting aside the impugned notice issued by the Corporation. 5.1 Per contra, Mr. Alkesh N. Shah, learned advocate for the Vadodara Municipal Corporation has submitted that there are various proceedings going on between the petitioner and the Society. 4.8 He has submitted that this petition may be allowed by quashing and setting aside the impugned notice issued by the Corporation. 5.1 Per contra, Mr. Alkesh N. Shah, learned advocate for the Vadodara Municipal Corporation has submitted that there are various proceedings going on between the petitioner and the Society. He has submitted that the property in question was earlier within the limit of Vadodara Urban Development Authority, but now it is within the limit of Vadodara Municipal Corporation. He has filed affidavit in reply in this matter on behalf of the Corporation. He has submitted that on examining the property in question, it is found that there are certain illegalities committed by the petitioner by putting up the illegal construction on Plot No.10. 5.2 He has drawn attention of this Court to the development permission granted by the Vadodara Urban Development Authority, more particularly Condition No.1 which is that, “The permitted building shall be utilised for the common purpose of the Society.” He has submitted that the petitioner is using the same for his own interest, which is a matter of fact. 5.3 He has further submitted that as per the definition of ‘Common Plot’ defined in the General Development Control Regulation (‘GDCR’ for short), it cannot be used for any purpose other than the one for which is reserved. He has submitted that no construction shall be permitted in the common plot, except electric sub station, overhead water tank, under-ground water tank, watchman’s room, etc. He has relied upon the various Regulations of the GDCR and has submitted that the petitioner is using the Plot No.10 for his own purpose and he has put up some construction for commercial purpose and the petitioner has thereby committed breach of the conditions of the development permission granted by the Authority. He has submitted that such construction which is carried out by the petitioner is totally in contravention of the construction permission issued by the Authority and not in accordance with law. He has submitted that the Corporation has therefore rightly applied a seal on the premises. He has submitted that though the notice is issued to the petitioner to produce the necessary documents, including the ownership of the Plot No.10, but the petitioner has not responded to it and preferred this petition before this Court. 5.4 He has submitted that this petition may be dismissed. 6.1 Mr. He has submitted that though the notice is issued to the petitioner to produce the necessary documents, including the ownership of the Plot No.10, but the petitioner has not responded to it and preferred this petition before this Court. 5.4 He has submitted that this petition may be dismissed. 6.1 Mr. Vikram Thakor, learned advocate for the contesting Society has submitted that the petitioner has made various litigation to hide or to escape from the mischief or illegality done by him. He has submitted that the petitioner has suppressed or misrepresented many facts by producing various documents which are not admissible in eyes of law. He has submitted that the order passed by the Board of Nominees in earlier Lavad Suit (Arbitration Case) No.145 of 1988 dated 08.04.1988 whereby the Board of Nominee has issued interim injunction. He has pointed out that the resolution is also passed on 27.09.1987, by which the President of the Society, who has committed many mischief, Shri Vinayak J. Bhagwat, is removed from the post and therefore, the said person cannot execute any document in favour of the petitioner nor he has any authority to issue any share certificate and documents which are produced by the petitioner which bear a signature of said Mr.Bhagwat. He has submitted that therefore, those are not valid documents in eyes of law. 6.2 He has further submitted that the Society and the Vadodara Urban Development Authority have issued various notices to the petitioner, but the petitioner has not properly responded to it. He has submitted that the impugned action of the Corporation is totally in accordance with law. 6.3 He has submitted that the dispute which is pending before the Lavad Court will be decided on its own merits since the petitioner has violated the terms of the construction permission by putting up an illegal construction on the common plot area, which is not permissible in eyes of law. 6.4 In support of his submissions, he has relied upon the decisions of this Court in the case of : (i) Harikrushnadas Chhaganlal, Nanalal and Ishwardas Mohanlal Seva Samaj Trust versus Vinodchandra G. Vaghela reported in 2010 (2) GLR 1820 and (ii) Madhvanagar Cooperative Housing Society Limited versus Joint Registrar, Board of Nominees, Surat reported in 2020 (2) GLR 1437 , and has submitted that this petition may be dismissed. 7.1 I have considered the various submissions made by the learned advocates for the respective parties. I have also considered the documents available on record. I have also considered the pleadings of the parties. 7.2 While considering the issue on hand, I have kept in mind the provisions of Sections 36 and 37 of the Act, which are as under : “36. Power to require removal of unauthorised development or use. – (1) Where any development has been carried out in any of the circumstances referred to in subsection (1) of Section 35, or any use of land or building or work is continued so as to constitute an offence punishable under sub-section (2) of that section, the appropriate authority may, subject to the provisions of this section and within three years of such development, or continuance of use so made, serve on the owner a notice requiring him, within such period, being not less than one month as may be specified therein, after the service of the notice, to take such steps as may be specified in the notice,- (a) to restore the land or building to its condition existing before the said development took place, in cases specified in clause (a) or clause (c) of sub-section (1) of Section 35; (b) to secure compliance with the conditions or with the permission as modified, as the case may be, in cases specified in clause (b) or clause (d) of sub-section (1) of Section 35; (c) to discontinue such use of building or land or work : Provided that where the notice requires the discontinuance of any use of land or building, the appropriate authority shall also serve a notice on the occupier. (2) The steps that may be specified in the notice under sub-section (1) may include the following, namely:- (a) the demolition or alteration of any building or work; (b) the carrying out on land of any building or other operations. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply to the appropriate authority for withdrawal of the notice. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply to the appropriate authority for withdrawal of the notice. (4) If, after hearing the applicant, the appropriate authority directs that the notice shall be withdrawn as respects any of the matters specified therein in relation to any building, or work or land, the notice shall stand withdrawn to that extent and thereupon the owner shall be required to take steps specified in the notice under sub-section (1) as respects the other matters and as respects the building, work or the land with respect to which the notice may not have been withdrawn. (5) If within the period specified in the notice under sub-section (1), or, as the case may be, within such period as may be prescribed, after disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the appropriate authority may, (a) prosecute the owner for not complying with the notice and, where the notice requires the discontinuance of any use of land or building any other person also who uses the land or building or causes or permits the land or building to be used in contravention of the notice; and (b) where the notice requires the demolition or alteration of any building or work or the carrying out of any building or other operations, itself cause the restoration of the building to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the appropriate authority may consider necessary, including demolition or alteration of any building or work or carrying out of any building or other operations, and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of \land revenue. (6) Any person prosecuted under clause (a) of sub- section (5) shall, on conviction, be punished with fine which may extend to [fifty thousand rupees], and in the case of a continuing offence, with a further fine which may extend to [one thousand rupees] for every day during which such offence continues after conviction for the first offence. 37. Removal of unauthorised, temporary development summarily. 37. Removal of unauthorised, temporary development summarily. - (1) Notwithstanding anything hereinbefore contained in this Chapter, where any person has carried out any development of a temporary nature in any of the circumstances referred to in sub-section (1) of Section 35, so as to constitute an offence punishable under that section, the appropriate authority may, by order in writing, direct such person to remove any structure or work erected within fifteen days of the receipt of the order, and if thereafter, the person does not comply with the order, the appropriate authority may request the Commissioner of Police in the City of Ahmedabad and the District Magistrate elsewhere, to have such structure or work summarily removed without any notice as directed in the order, and thereupon any such structure or work shall be summarily removed without any order as aforesaid being made. (2) The decision of the appropriate authority on the question as to what is development of a temporary nature shall be final.” 7.3 I have also perused the construction permission issued by the Vadodara Urban Development Authority at the relevant point of time in the year 1987. It transpires from it that the Authority has issued construction permission on 11.03.1987 by exercising the powers under Section 29(1) of the Act for the construction of two store rooms for the use of the Society only in the common plot and by prescribing specific condition i.e. Condition No.1 as noted above. 7.4 Further, it is an admitted position that the petitioner has, though claiming ownership on Plot No.10 of the Society – Common Plot, not produced any valid documents regarding the same showing the title over the property. Not only that when the lay out plan is sanctioned by the Authority, the Plot No.10 is shown as common plot. Further, it clearly transpires from the GDCR that common plot is well defined and it cannot be sell or transfer to any purpose except the common usage for the members of the Society. Keeping these facts in mind, it seems that the petitioner has put up construction which is contrary to the permission issued by the Vadodara Urban Development Authority, the area in question is now merged in the local limits of the Vadodara Municipal Corporation in the year 2021. Keeping these facts in mind, it seems that the petitioner has put up construction which is contrary to the permission issued by the Vadodara Urban Development Authority, the area in question is now merged in the local limits of the Vadodara Municipal Corporation in the year 2021. The Corporation has issued notice to the petitioner to stop the usage of the construction put up on the common plot by him, as the petitioner was given the notice by the Corporation earlier also and pursuant to that earlier notice, the petitioner has provided the construction permission and plan to the Corporation. Therefore, it is clear that the petitioner has committed breach of the condition imposed by the Authority while issuing construction permission. 7.5 It is also found that the petitioner is also having Plot No.2 in the said Society and the construction in Plot No.10 – Common Plot in question is in the nature of show-room put up by the petitioner which is for the commercial use which is contrary to the construction permission issued by the Authority and also contrary to the by-laws of the Society. 7.6 The contention raised by the petitioner regarding non-compliance of the provisions of Section 36 of the Act, the judgments cited by the learned advocate for the petitioner are not helpful to the petitioner as in these cases, facts are different and the present case pertains to common plot of residential society, moreover, after giving opportunity to the petitioner, the seal is applied by the Corporation by exercising the powers available under the GPMC Act, GDCR and T.P. Act. Therefore, it is observed that in the present case, the petitioner has no valid and legal right to put construction on the land of the common plot i.e. Plot No.10 of the residential Housing Society and the petitioner has no proper document to show that the Plot No.10 is allotted to him by the Society in legal and valid manner. Further, when it is apparently undisputed position of fact that the petitioner is using the said common plot for his own use by putting up the commercial construction i.e. show-room which is totally in contravention of the provisions of the GDCR as well as GPMC Act and T.P. Act. Therefore, it clearly transpires that the petitioner has committed breach of the condition of the construction permission. Therefore, it clearly transpires that the petitioner has committed breach of the condition of the construction permission. Thus, the petitioner now cannot contend that the Corporation has not acted in accordance with law, since the conduct of the petitioner shows that he is not a law abiding citizen in view of the facts noted above. 7.7 At this stage, it is fruitful to keep in mind the observations made by this Court in the case of Harikrushnadas Chhaganlal, Nanalal and Ishwardas Mohanlal Seva Samaj Trust (supra), wherein this Court has observed that, all members of Society have common / joint as well as individual right to use common plot and the common plot reserved under N.A. plan cannot be converted to any exclusive use without permission of the competent Authority. 7.8 Further, it is also fruitful to keep in mind the observations made by this Court in the case of Madhavnagar Cooperative Housing Society Limited versus Joint Registrar and Member, Board of Nominees, Surat (supra), wherein this Court has observed that, the members of the Cooperative Housing Society has no right to use the land for commercial purpose irrespective of permission granted under the Town Planning and Urban Development Act, G.D.C.R. or G.P.M.C. Act. 7.9 In view of above, it is crystal clear that if it is cooperative housing society, then any construction of commercial nature can be permitted by the Authority and considering the above ratio, this Court is of the view that there is no illegality or perversity committed by the Corporation in issuing the impugned notice and thereafter sealing the premises in question. There is no arbitrariness or colourable exercise of powers on the part of the respondent – Corporation. On the contrary, the petitioner has acted in high-handed manner and such conduct of the petitioner is required to be deprecated. The petitioner is not entitled to get any equitable relief looking to his conduct and utter disregard to the process of law shown by him. I do not find any reason to interfere in the impugned notice by exercising the extraordinary and equitable jurisdiction under Article 226 of the Constitution of India. This petition therefore needs to be dismissed. 8. This petition is found meritless and after considering the totality of the case, though the conduct of the petitioner is not in accordance with law, this Court is restraining itself from imposing cost upon the petitioner. This petition therefore needs to be dismissed. 8. This petition is found meritless and after considering the totality of the case, though the conduct of the petitioner is not in accordance with law, this Court is restraining itself from imposing cost upon the petitioner. 9. For the reasons recorded above, the present petition is dismissed. Rule is discharged.