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Gujarat High Court · body

2025 DIGILAW 643 (GUJ)

Satishbhai Shantilal Shah v. State Of Gujarat

2025-07-04

A.S.SUPEHIA, R.T.VACHHANI

body2025
ORDER : A.S. SUPEHIA, J. 1. At the outset, learned advocate Mr.Trivedi has pointed out the decisions of the Apex Court in the case of Rajendra Kumar Barjatya and Anr.; Rajiv Gupta and Ors. vs. U.P Avas Evam Vikas Parishad and Ors. , 2024 LawSuit (SC) 1172 dated 17.12.2024 passed in Civil Appeal Nos.14604 and 14605 of 2024 and in the case of Kaniz Ahmed Vs. Sabuddin and Ors. , 2025 LawSuit (SC) 646 dated 30.04.2025 passed in Special Leave to Appeal (Civil) Nos.12199 and 12200 of 2025 and has submitted that the action of the respondent- Municipality of regularizing unauthorized construction is contemptuous. He has submitted that due to pendency of the present Public Interest Litigation (PIL), one of the properties being City Survey No.414 is already regularized by invoking the provisions of the Gujarat Regularisation of Unauthorised Development Act, 2022, (for short “the GRUDA”), whereas for another property being City Survey No.1026, the application for regularization is still pending. 2. Learned advocate Mr.Majmudar has pointed out the decision of the Coordinate Bench of this Court dated 03.02.2025 passed in Writ Petition (PIL) No.137 of 2011 and has submitted that the present PIL may be disposed of in terms of the said order. 3. We have heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 4. It is not in dispute that initially the private respondent Nos.9 and 10 had constructed a hospital on land bearing City Survey N0.414. Thereafter, the said property was purchased by respondent No.10. It is also not disputed that the aforesaid construction was unauthorized and the application for regularization of such construction under the GRUDA was filed and the same is allowed. So far as the application for unauthorized construction of shops on the land bearing City Survey No.1026 is concerned, the same is still pending. 5. The Coordinate Bench vide order dated 03.02.2025 passed by in WPPIL No.137 of 2011, in case of unauthorized construction relating to the very same Nagarpalika, has observed thus: “20. The learned senior counsels and other counsels appearing for the respondent Nos. 8 to 20 would submit that all the respondents whose constructions have not been regularised so far, will move their applications within a period of 2 weeks from today along with the copy of this order. The learned senior counsels and other counsels appearing for the respondent Nos. 8 to 20 would submit that all the respondents whose constructions have not been regularised so far, will move their applications within a period of 2 weeks from today along with the copy of this order. On such application being filed, the designated authority shall be required to fix a date for grant of personal opportunity of hearing and shall intimate the same to the applicants. The respondents/ applicants shall cooperate and will not make any effort to prolong/ delay or stall the proceedings before the designated authority. In any case, all such applications filed shall be decided by the designated authority, as expeditiously as possible, preferably within a period of six weeks of the receipt of this application after grant of due opportunity of hearing, strictly in accordance with law.” 6. At this stage, we may refer to the observations recorded by the Apex Court in the case of Rajendra Kumar Barjatya and Anr.(supra), wherein the Apex Court, after survey of array of judgements, has issued following directions : “21. Therefore, in the larger public interest, we are inclined to issue the following directions, in addition to the directives issued by this Court in Re: Directions in the matter of demolition of structures (supra): (i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned. (ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records. (iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified. (iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider / Board to the buildings only after the production of the completion/occupation certificate. (v) Even after issuance of completion certificate, deviation / violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of wrongful completion /occupation certificate shall be proceeded departmentally forthwith. (vi) No permission /licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building. (vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment. (viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co- operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge. (ix) In the event of any application / appeal / revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided. (x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. (x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law. (xi) Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned. (xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.” 7. The same observations are reiterated in the case of Kaniz Ahmed (supra), which are as under: “5. In one of our recent pronouncements, in the case of Rajendra Kumar Barjatya and Another v. U.P. Avas Evam Vikas Parishad and Others reported in 2024 INSC 990 , we have made ourselves very explicitly clear that each and every construction must be made scrupulously following and strictly adhering to the rules and regulations. In the event of any violation, being brought to the notice of the courts, the same should be dealt with iron hands and any leniency or mercy shown to the person guilty of unauthorised construction would amount to showing misplaced sympathy. In our decision referred to above, we have issued the following directions: “(i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned. (ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records. (ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records. (iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified. (iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider / Board to the buildings only after the production of the completion/occupation certificate. (v) Even after issuance of completion certificate, deviation / violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of wrongful completion /occupation certificate shall be proceeded departmentally forthwith. (vi) No permission /licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building. (vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment. (viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co- operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge. (ix) In the event of any application / appeal / revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided. (x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law. (xi) Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned. (xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.” 8. Thus, the Apex Court has expressed its displeasure on the construction, which are illegal and unauthorized and inaction on the parts of the builder / developer / owners as well as officials, who has to grant permission to such unauthorized construction. In the direction No.12, the Apex Court has clarified that the violation of any of the directions issued therein would lead to initiation of the contempt proceedings in addition to the prosecution under the respective laws. 9. Under the circumstances, and in light of the aforesaid facts, since the State Government has framed the statutory rules being the GRUDA and application for regularization of unauthorized construction is already pending before the concerned Municipality, we direct that at the time of deciding such application, the directions of the Apex Court, as above mentioned, shall also to be considered. Under the circumstances, and in light of the aforesaid facts, since the State Government has framed the statutory rules being the GRUDA and application for regularization of unauthorized construction is already pending before the concerned Municipality, we direct that at the time of deciding such application, the directions of the Apex Court, as above mentioned, shall also to be considered. The Municipality concerned Committee / Department or designated authorities, while deciding the application of regularizing of the property of City Survey No.1026 shall also afford an opportunity to the applicant- petitioner. So far as the regularization of the property of City Survey No. 414 is concerned, it will be open for the petitioner to file appropriate proceedings challenging the same in accordance with law. The designated authorities shall inform the respective parties about the date fixed for hearing. 10. It goes without saying that all the contentions of the respective parties are left open, including applicability of the GRUDA viz-a-viz the directions issued by the Apex Court in the foregoing cases. 11. Accordingly, the present Writ Petition (PIL) stands disposed of.