SCA/2245/2007 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2245 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PASHABHAI ADARBHAI PATEL & 1 - Petitioner(s) Versus GUJARAT URBAN DEVELOPMENT AUTHORITY - Respondent(s) ========================================================= Appearance : MS TRUSHA K PATEL for Petitioner(s) : 1 - 2. MR RM CHHAYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/07/2008 ORAL JUDGMENT 1. Rule. Shir R.M. Chhaya, learned advocate for the respondent No.1 wavies service of notice on behalf of the respondent. With the consent of the parties, the SCA/2245/2007 2/15 JUDGMENT matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners-original plaintiffs of Regular Civil Suit No. 382 of 2005 have prayed for an appropriate writ, direction and/ or order quashing and setting aside the impugned order dated 6.1.2007 passed by the learned Additional District Judge, Gandhinagar in Civil Miscellaneous Appeal No. 65 of 2005 in allowing the same and quashing and setting aside the order passed by the learned trial Court passed below Exh. 5 in Regular Civil Suit No. 382 of 2005. 3. Petitioners-original plaintiffs have instituted Regular Civil Suit No. 382 of 2005 in the Court of learned Civil Judge, (S.D.), Gandhinagar for declaration, declaring the notice / order dated 11.5.2005 of the defendant as illegal, arbitrary and contrary to the provisions of the Gujarat Town Planning Act and Rules therein. The petitioners- plaintiffs have also further prayed for declaration that commercial use of the disputed plot by the SCA/2245/2007 3/15 JUDGMENT plaintiffs is permissible, as per Development Regulation (hereinafter referred to as "GDCR") 10.9.2,. The plaintiffs have also prayed for a permanent injunction restraining defendant, their agents and servants obstructing plaintiffs from making the commercial use of the construction made on the disputed plot by the plaintiffs in the name and style as Ambica Tyres and restraining the defendant from sealing the disputed property while the said property is being used for commercial purpose in the name and style as Ambica Tyres. 4. In the said suit, the petitioners submitted application for injunction at Exh. 5 on 8.8.2005.The learned trial Court issued the notice which was served upon the respondent authority. As per the petitioners after the learned advocate appeared on behalf of the respondent authority, they prayed for time to file written statement and the matter was adjourned to 26.8.2005 and the learned advocate for the Gandhinagar Urban Development Authority ( hereinafter referred to as "GUDA") made statement that the GUDA would not seal the property in the SCA/2245/2007 4/15 JUDGMENT mean time, inspite of that GUDA sealed the premises and, therefore, the petitioners submitted another application Exh. 12 directing the respondent authority to remove the seal. The application Exhs. 5 and 12 came to be heard together. It was contended on behalf of the petitioners that as per the GDCR, commercial use of the said plot is permissible and, therefore, notice issued by the authority to seal the premises on the ground that the plot in question is being used for commercial purpose was not sustainable. Application Exhs. 5 and 12 were resisted by the defendant GUDA by submitting that admittedly the B.U. Permission is granted only for residential use and even the development permission and the plans were sanctioned for residential purpose only and the plaintiffs have made illegal and unauthorized construction and instead of residential purpose, the same is used for commercial purpose which is de-hors the development permission, sanction plans and GDCR etc. That the learned trail Court after considering the submissions on behalf of the rival parties, vide order dated 16.8.2005 allowed the application Exh 5 and granted the injunction in favour of the SCA/2245/2007 5/15 JUDGMENT petitioners-plaintiffs till the final disposal of the suit and also allowed the application Exh. 12 directing the respondent original defendant to remove the seal. Being aggrieved and dissatisfied with the order passed by the learned Principal Senior Civil Judge, Gandhinagar dated 16.8.2005 passed below Exhs 5 and 12 in Regular Civil Suit No.382 of 2005, the respondent-defendant GUDA preferred Civil Miscellaneous Appeal 65 of 2005 before the learned Additional District Judge, Gandhinagar and the learned Additional District Judge by impugned judgment and order dated 6.1.2007 allowed the said appeal by quashing and setting aside the order passed by the learned trial Court passed below Exhs. 5 and 12 dated 16.8.2005 passed in Regular Civil Suit No. 382 of 2005. Being aggrieved and dissatisfied with the judgment and order passed by the learned Additional District Judge, Gandhinagar dated 6.1.2007 passed in Civil Miscellaneous Appeal No 65 of 2005 in allowing the same by quashing and setting aside the order passed by the learned trial Court passed below Exhs. 5 and 12, the petitioners original plaintiffs have preferred the present Special Civil Application SCA/2245/2007 6/15 JUDGMENT under Article 227 of the Constitution of India. 5. Shri Mihir Joshi, learned Senior Advocate appearing for the petitioners-plaintiffs has submitted that learned Appellate Court has materially erred in allowing the appeal by quashing and setting aside the order passed by the learned trial Court below Exhs. 5 and 12. It is submitted that the learned Appellate Court ought to have appreciated that even considering Regulation under the GDCR, commercial use on the plot in question was/is permissible and, therefore, when considering the same when the plot in question is being used by the son of the original plaintiff No.1 for running his shop of selling the tyres etc. the learned Appellate Court ought not to have quashed and set aside the order passed by the learned trial Court passed below Exh. 5. It is submitted that learned Appellate Court ought to have appreciated that before issuing the notice under Section 36, GUDA ought to have given opportunity of hearing to the plaintiffs. It ought to have even withdrawn the notice in view of the fact that the commercial use is in permissible. It is SCA/2245/2007 7/15 JUDGMENT further submitted that the learned Appellate Court has failed to appreciate that the said land is occupied by Harshilbhai i.e. the properitor of M/s Ambica Tyres; hence, the notice under Section 36(1) ought to have been issued to him. It is further submitted that even the learned Appellate Court ought to have appreciated that as per the Regulation 10.9.1. and 10.9.2. of the GDCR the commercial use is permissible on Town road No. 3 along Sectors 5,6,12 and 13 and the shop of the petitioner is on town planning road No.1 along sector No. 5, thus as per the regulation of existing GDCR commercial use is permissible. It is further submitted the learned Appellate Court ought to have appreciated that the selling of Tyres by petitioners does not in any manner create nuisance to anybody, thereafer even if it is an irregularity the said can be cured and the permission for change of user even if necessary can be granted by the GUDA. Therefore,it is requested to allow the present Special Civil Application and restored the order passed by the learned trial Court below Exh. 5. SCA/2245/2007 8/15 JUDGMENT 6. Petition is opposed by Shri R.M. Chhaya, learned advocate for the respondent authority. It is submitted that admittedly the development permission with respect to the plot has been granted by the Competent Authority for residential purpose only and even plans were also sanctioned for residential purpose. It is submitted that admittedly even the BU permission is also granted by the competent authority for residential use only. Therefore, when the plaintiffs have put up the illegal and unauthorized construction and is making use of the plot in question for the purpose other than for which the development permission is granted and for which plans are sanctioned and for which the B.U. permission is granted and when the authority issued the notice under Section 36 of the Act and still the plaintiffs did not stopped commercial use and when after following due procedure the proceedings came to be initiated, it cannot be said that the respondent authority had acted illegally or de-hors the law. It is further submitted that even as held by the Division Bench of this Court in LPA No. 285 of 2005, the authority cannot be restrained from taking action SCA/2245/2007 9/15 JUDGMENT to remove illegal construction and the person cannot be permitted to put up illegal construction. It is submitted that merely because under the GDCR such a use is permissible that does not mean that the petitioners can float the development permission and B.U. Permission. It is submitted that the learned Appellate Court has rightly interfered with the order passed by the learned trial Court and allowed the appeal. Therefore, it is requested to dismiss the present Special Civil Application. 7. Now, so far as the contention on behalf of the learned advocate for the petitioners that no opportunity has been given to the petitioners is concerned, it is submitted by Shir Chhaya, learned advocate for the respondent authority that even in the impugned notice dated 11.5.2005 which was the subject matter of the suit, the plaintiffs and the occupiers were given an opportunity to show cause and even the occupiers were called upon to stop the illegal use. Therefore, it is submitted that the authority has followed due procedure as required to be followed under Section 36 of the Town Planning SCA/2245/2007 10/15 JUDGMENT Act, therefore, it is requested to dismiss the present Special Civil Application. 8. Heard the learned advocates appearing for the respective parties. At the outset, it is required to be noted that the development permission to the plaintiffs has been granted by the development authority under the Town Planning Act for residential use. Even the plans which are sanctioned by the authority are for residential use. Even B.U. permission granted by the respondent development authority is for residential use. Under the circumstances, the plot in question and the construction cannot be used for the purpose other than the residential use. Any use other than residential use would be illegal and unauthorized. Section 36 of the Gujarat Town Planning Act authorizes Competent Authority to take steps restraining the user and occupier of the plot to stop the illegal use and if still the illegal and unauthorized used is continued, the same can be demolished and removed by the authority. Considering the above facts, when it was found that the plot in SCA/2245/2007 11/15 JUDGMENT question is being used for the commercial use by the son of the land owner for running the shop, the authority served the notice under Section 36 of the Act dated 11.5.2005 restraining owner from using the plot in question for other than residential use and directing them to restore the land and the construction as per the development permission and not to use the plot/ construction for the purpose other than residential use and development permission and even called upon the occupier and the owner of the plot to show cause as contemplated under Section 36(3) of the Act and the said notice came to be challenged by the petitioners. Inspite of the aforesaid notice under Section 36 of the Act when the plaintiffs and the occupiers continue to use the plot for commercial purpose de-hors the development permission and the B.U. permission, the said construction which was used for commercial purpose came to be sealed and the learned trial Court allowed the application Exh. 5 and also application Exh. 12 directing the authority to remove the seal and the order came to be quashed and set aside by the learned Appellate Court. SCA/2245/2007 12/15 JUDGMENT 9. It is the contentions on behalf of the petitioners that under the GDCR Regulation No. 10.9.1 and 10.9.2. commercial use is permissible and, therefore, authority cannot take any action. It is to be noted that admittedly the development permission is granted for residential use. Plans are also sanctioned for residential use. B.U. Permission is also granted for residential use. Under the circumstances, unless and until any steps are taken for modification in the B.U. permission and permission is granted by the Competent Authority, occupier and/ or owner cannot make the use of the plot for the purpose other than for which the development permission is granted and / or B.U. permission is granted. Any use of the plot other than the purpose for development permission is granted would be unauthorized and illegal and to continue to use the same even by way of interim injunction would be passing the order de-hors the law and permitting the person to make use of the plot illegally and unauthorizedly. Such injunction which permits illegal and unauthorized use cannot be sustained. Merely SCA/2245/2007 13/15 JUDGMENT because the same might be permissible is no ground for the plaintiffs to use the said plot de-hors development permission and B.U. Permission. 10. Now so far as the submissions on behalf of the learned advocate appearing for the petitioners that the impugned notice is against the principles of natural justice and the procedure has not been followed is concerned even on bare reading of the impugned notice dated 11.5.2005, even the owners and occupier are called upon to show cause. Not only to show cause but they are called upon to restore the possession as per the development permission and the B.U permission and to use it for the purpose for which the development permission is granted. Thus, before taking any action and sealing the property, opportunity has been given to the owners and occupiers. Therefore, it cannot be said that the impugned notice is in breach of principles of natural justice. The authority has followed the procedure as required to be followed under Section 36 of the Act. Inspite of the above, when the plaintiffs and the occupier who is son of the plaintiff No. 3 continue SCA/2245/2007 14/15 JUDGMENT to make use of plot illegally and unauthorizedly by making commercial use of the plot de-hors development permission and when the notice has been given and the property was sealed, the learned trial Court ought not to have granted the injunction. The learned Appellate Court has rightly quashed and set aside the order passed by the learned trail Court Exh. 5, relying upon the decision of the Division Bench of this Court in LPA No. 285 of 2005, by which a view is taken that the authority cannot be restrained from taking action to remove illegal construction and the person cannot be permitted to put up illegal construction. Under the circumstances and considering that the petitioners are making the use of the plot for commercial use which is contrary to the development permission and B.U. Permission, it appears that learned Appellate Court has not committed any error in quashing and setting aside the order passed by the learned trial Court passed below Exh. 5 and 12 by which the learned trial Court has restrained the respondent authority from taking any action under the Town Planning Act and by which learned trail Court has directed the authority to SCA/2245/2007 15/15 JUDGMENT remove the seal. In fact, such an order of the learned trial Court would tantamount to continue the illegality and permitting the person who is making unauthorized and illegal use. Learned Appellate Court is justified in interfering with the order passed by the learned trail Court passed below Exh. 5. 11. For the reasons stated above, petition deserves to be dismissed and is accordingly dismissed with cost which is quantified at Rs. 5,000/- to be paid to the respondent authority. Ad-interim relief granted earlier shall stand vacated forthwith. (M.R.SHAH, J.) kaushik