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Gujarat High Court · body

2022 DIGILAW 630 (GUJ)

MAYANK HIRALAL JAIN v. STATE OF GUJARAT

2022-05-02

A.Y.KOGJE

body2022
ORDER : 1. This petition under Article 226 of the Constitution of India is filed praying for direction to quash and set aside the order dated 23.02.2022 and further direction to open the seal over the premises in question, which was applied by the respondent-Corporation on 18.12.2021. 2. Learned Advocate for the petitioners submitted that the petitioner No. 1 is Chartered Accountant by profession and as the premises in question was being residential premises being utilized partially for his profession. Usage of such premises for the purpose of his profession was to the knowledge of the respondent-Corporation and therefore, the Corporation had accordingly issued Tax bill for two separate purposes namely for residential purpose and for nonresidential purpose. 3. Learned Advocate for the petitioners submitted that action of the respondent to seal the premises is also highhanded as only notice on 10.03.2021 was issued and thereafter, straightway on 18.12.2021, the seal was applied. Learned Advocate for the petitioners submitted that there was no need for the respondent-Authority to take highhanded action especially considering the case of the petitioners that the premises was used for print purpose, which is permissible even as per the Comprehensive General Development Control Regulations 2017 (CGDCR). Learned Advocate for the petitioners submitted that the petitioner is ready and willing to give an Undertaking to this Court and has accordingly filed Undertaking to the effect that the petitioner no. 1 will use the area admeasuring only 30 square meters for his professional purpose, while rest of the area will be used for the residential purpose. It is therefore, submitted that the seal of the premises may be removed and the order be set aside. 4. Learned Advocate for the petitioners has referred to and relied upon the decision of the Division Bench of this Court in case of Pratik Hareshkumar Shah vs. Ahmedabad Municipal Corporation passed in First Appeal No. 6140 of 2019 dated 21.12.2021 to contend that the premises which is utilized for the purpose of residence as well as the Commercial, partly has to be treated as premises utilized for the residential purpose and tax is required to be levied accordingly. Learned Advocate for the petitioners has also referred to and relied upon the decision of this Court in case of Jayendra Lagharbhai Makwana vs. Ahmedabad Municipal Corporation passed in Special Civil Application No. 1185 of 2022 dated 31.01.2022 contending that in case of practising Advocate in the flat, where the part of the premises was being used for the residential purpose, this Court had interfered and permitted the usage as such. 5. As against this, learned Advocate for the respondent-Corporation has drawn attention of this Court to the Affidavit in reply firstly disputed the contention of the petitioners that only part premises is being utilized for the purpose of profession of Chartered Accountant, but in fact the entire premises was being utilized for the purpose of profession. Learned Advocate also submitted that action of sealing the premises was not an immediate action without notice, but notices were issued not only to the petitioners, but also to those other occupants of the same premises, who were putting the premises for usage other then residential purpose and all of them have been noticed and upon verification by physical visiting of the premises found continuing the usage despite the notice, the seal has been applied. 6. Learned Advocate for the respondent-Corporation has drawn attention of this Court to the Comprehensive General Development Control Regulations 2017 (CGDCR) applicable and pointed out to Table No. 6.3, which prescribed Use Permitted in each category. It is submitted that flat of the petitioners false in classification of Dwelling-3 (DW-3), where the uses prescribed in Column3 is for the purpose of Apartment, Hostel, Dharamshala, Preschool and Affordable Housing. It is submitted that reading this table along with the Regulation No. 6.2 (5) provides for usage as prescribed in Regulation No. 5, but for such usage, the prior permission will have to be taken from the Corporation, if the occupier proposes to use that premises for the categories mentioned in Regulation No. 5. Thereafter, learned Advocate has drawn attention of this Court to Regulation No. 3.7.1 of Comprehensive General Development Control Regulations 2017 (CGDCR), where Regulation No. 3.7.1 provides for revising development permission and in case of change in the usage of building or part thereof, application will have to be made by the occupants of such premises. Thereafter, learned Advocate has drawn attention of this Court to Regulation No. 3.7.1 of Comprehensive General Development Control Regulations 2017 (CGDCR), where Regulation No. 3.7.1 provides for revising development permission and in case of change in the usage of building or part thereof, application will have to be made by the occupants of such premises. In the instant case, the petitioners have not made any application prior in point of time before setting the premises for usage or other than residential purpose, for which the development permission is granted. 7. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the premises in question are Flat No. 101, Aaron Residency situated at City Survey No. 4321, Final Plot No. 439 Paiki of Town Planning Scheme No. 3 (Elisbridge). It is the case of the petitioners that the petitioner No. 1 who is Chartered Accountant by profession, is using this premises both for the purpose of their office as Chartered Accountant and partly for the residential use. He refers to the Tax bill, which is part of the record to indicate that out of the entire premises, the petitioners are taxed for part for using it as nonresidential purpose and part thereof for residential purpose. It appears that the petitioners have been issued with notice dated 10.03.2021, wherein it is indicated that the petitioners are utilizing the premises other than for which the Building Use Permission has been given and has made changes and for that purpose, notice was given to bring the premises back to its original condition and stop usage of such premises beyond the Building Use Permission granted. It appears that thereafter on 18.12.2021, order came to be passed whereby the premises was sealed by the respondent-Corporation. 8. The Court has taken into consideration the process adopted by the respondent – Corporation, which is indicated in the Affidavit in reply to show that the complaint was received by the respondent-Corporation with regard to the indiscriminate usage of the premises including the premises of the petitioners exclusively for the commercial purpose and not for any residential purpose. 8. The Court has taken into consideration the process adopted by the respondent – Corporation, which is indicated in the Affidavit in reply to show that the complaint was received by the respondent-Corporation with regard to the indiscriminate usage of the premises including the premises of the petitioners exclusively for the commercial purpose and not for any residential purpose. On such complaint, the respondent-Corporation through their Officers carried out visit on 10.03.2021 and upon inspection of various Flats situated in the Building, it was found that six flats were being used for the commercial purpose and therefore, notice dated 10.03.2021 was issued under Section-478 of GPMC Act to the Chairman/Secretary of the Aaron Residency. 9. It is also stated that inspection of Flat No. 101 (subject premises), it was found that flat had two entrances, one of which was locked, while the other was being utilized for the excess to the flat. In the flat also, it was found that the premises was being used for the office. The respondent-Corporation was acting in accordance with the directions given by this Court in Writ Petition (PIL) No. 118 of 2020 and accordingly, another visit was made on 18.12.2021 of the same premises and once again, it was found on inspection that Flat No. 101 was not actually being used for any residential purpose, but the entire premises was used by the petitioner no. 1 for his office and therefore, for commercial purpose. It is also narrated that when visit was carried out, several persons were found to be working on their Laptops and when sealing proceedings undertaken, the persons who were working on Laptops, were permitted to leave the premises along with their Laptops. It is submitted that therefore Corporation was acting in conformity with the direction given by this Court in Writ Petition (PIL) No. 118 of 2020. Regulation applicable to the facts of this case firstly would indicate that even if the usage is of the premises is to be made for the purpose other than for which the Building Use Permission is granted. Regulation applicable to the facts of this case firstly would indicate that even if the usage is of the premises is to be made for the purpose other than for which the Building Use Permission is granted. In the present case, for the purpose of Chartered Accountant, Comprehensive General Development Control Regulations 2017 (CGDCR) provides for Regulation No. 6.2 particularly Clause4 and Clause5 of the said Regulation provides that all the premises for nonresidential use in the residential zone of whatever category may be permitted on the ground floor or any other floor in residential unit, if provided with separate means of access or staircase. 10. In the instant case, nothing is placed on record by the petitioners as to whether he complies with this particular clause of the Regulation. Clause-5 provides for part of the residential building may be permitted for use as offices in case of professional requirement, such as Advocates, Doctors and includes profession of Chartered Accountant. However, such usage is restricted to maximum of 50 square meters and also prescribed for parking for this purpose, has to be provided on the commercial basis. If this Regulation is taken into consideration along with Regulation No. 3.7.1, which provides for revising development permission, wherein the developer or owner who seeks to revise development permission for changes, in the matter of increasing of utilizing of FSI etc., which would include any change in the use of building or part thereof, then in that case, Regulation No. 3.7.1 (Sub-Clause 2) will provide for an application for revising development permission in prescribed Form No. 8. In the instant case, there is nothing on record to indicate that the petitioners have made any application as required under the revising development permission before the respondent-Corporation. It is pertinent to observe that the premises in question have been given Building Use Permission exclusively for the purpose of residence. 11. In the instant case, there is nothing on record to indicate that the petitioners have made any application as required under the revising development permission before the respondent-Corporation. It is pertinent to observe that the premises in question have been given Building Use Permission exclusively for the purpose of residence. 11. In the opinion of the Court, though Regulation provides for usage of the part of the premises for the purposes mentioned in the Regulation No. 6.2(4 and 5) as per the Comprehensive General Development Control Regulations 2017 (CGDCR), still it will be incumbent for such persons to make application before the respondent-Corporation and for the respondent–Corporation to undertake necessary process by carrying out inspection and finding of whether this necessary requirement of the Comprehensive General Development Control Regulations 2017 (CGDCR) are fulfilled, than to give permission for changing use other than for which Building Use Permission is granted. Reliance placed by the learned Advocate for the petitioners on the decision of the Division Bench of this Court in case of Pratik Hareshkumar Shah (supra), the Division Bench has taken into consideration the taxation part while considering the decision given by the Small Cause Court in the Municipal Valuation Appeal. In the opinion of the Court, interpretation given in so far as the taxation of a particular premises by way of category, cannot be imported in the provisions, which are meant for the purpose of controlling and regulating the construction and development permission as per the provisions of the Municipal Corporation Act and Comprehensive General Development Control Regulations 2017 (CGDCR). 12. Reliance placed by the learned Advocate on the decision of this Court in case of Jayendra Lagharbhai Makwana (supra), the Court was considering the usage of the premises by practising Advocate, wherein it has come on record that only part of the premises was being utilized for the purpose of porfessional means of profession and part of it was still being utilized for the purpose for residential premises. This aspect, in the present case, is highly disputed by the respondent– Corporation, as it is stated on the Affidavit in reply , where upon inspection being carried out during the visit that the premises was being utilized for the purpose of profession of Chartered Accountant and not for any residential premises. This aspect, in the present case, is highly disputed by the respondent– Corporation, as it is stated on the Affidavit in reply , where upon inspection being carried out during the visit that the premises was being utilized for the purpose of profession of Chartered Accountant and not for any residential premises. So far as submission made by the learned Advocate to the extent that the issuance of tax bill for the purpose of residential part and nonresidential part, to be treated as knowledge of the respondent-Corporation and therefore, deemed permission is concerned, he has failed to point out any provision of deeming fiction or any proceeding in this regard and hence, such contention cannot be accepted. 13. One more reason for not interfering with the impugned actions that the impugned communication itself in the last part of the communication gives an option to the petitioner to bring the construction and usage in conformity with the Comprehensive General Development Control Regulations 2017 (CGDCR) and apply again to the authority for reconsideration with this clear cut option the Court is not inclined to invoke Article 226 in this case. 14. In view of the aforesaid facts, the Court is not inclined to interfere with the proceedings adopted by the respondent-Corporation. Hence, this petition deserves to and is hereby dismissed. Notice is discharged.