IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6794 of 1992 WITH CIVIL APPLICATION NO. 7369 of 2000 WITH CIVIL APPLICATION NO. 7813 OF 1992 WITH SPECIAL CIVIL APPLICATION NO. 6893 OF 1992 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? except bracketed: portion 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES -------------------------------------------------------------- SPL C. A. NO. 6794/92, C.A.7369/2000 CONSUMER PROTECTION COUNCIL Versus A'BAD MUNI. CORPORATION C.A. NO. 7813 OF 2000 GUJARAT CHAMBER OF COMMERCE & INDUSTRY versus CONSUMER PROTECTION COUNCIL SPECIAL CIVIL APPLICATION NO. 6893 OF 1993 THE AHMEDABAD PREMISES USERS' ASSOCIATION & ORS versus A'BAD MUNI. CORPORATION -------------------------------------------------------------- Appearance: SPL. C.A. NO. 6794/92, C.A. No.7369/2000 MR MIHIR THAKORE with MR DARSHAN M PARIKH for Petitioners MR SN SHELAT Addl Advocate General with MR MG NAGARKAR for Respondent No. 1 MR DC DAVE for Respondent No. 2 MR DP JOSHI, ASST. GOVERNMENT PLEADER for Respondent No. 3 MR SB VAKIL, Amicus Curie C.A. NO. 7813 OF 2000 MS. NANAVATY & NANAVATY for petitioner MR. DM PARIKH for respondents 1,2 MR. AMIT PANCHAL, for respondents 3,4 MR. DP JOSHI, AGP for Govt. SPL. C.A. NO. 6893 OF 1992 MR. S.I. NANAVATI with MR. D.S. NANAVATI for petitioners MR. PRASHANT DESAI for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE P.B.MAJMUDAR Date of decision: 04/10/2000 C.A.V. COMMON JUDGEMENT (Per Patel, J. ) SPECIAL CIVIL APPLICATION NO. 6794 OF 1992. #. The petitioner, Consumer Protection Council, which is registered under the provisions of the Societies Act 1860 and under the provisions of Bombay Public Trust Act, 1950 has moved this Court by filing this petition under Article 226 of the Constitution of India through its Chairman, who is a Chartered Accountant for claiming several reliefs. 1.1 The respondent No.1, Ahmedabad Municipal Corporation, (AMC, for brevity, hereinafter) is a Local Authority functioning under the provisions contained in the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the BPMC Act). Respondent No. 2 is Town Development Officer of the Western Zone of AMC. The petitioner has joined the State of Gujarat through its Secretary, Urban Development, Gandhinagar. The petitioner has moved this Court seeking appropriate writ commanding the respondents No. 1,2 and 3 to enforce the building byelaws, Town Planning Scheme Regulations and the regulations enforcing the provisions of the Development plan and in particular with regard to the properties constructed on C.G. Road and all other areas of the Ahmedabad City in general. 1.2 The petitioner has also requested the Court to exercise the powers under section 24 of the Civil Procedure Code suo motu, to call for the suits from the City Civil Court at Ahmedabad, filed by owners / promoters / organizers / builders and occupiers of the premises situated on C.G. Road. The petitioner has annexed a list at Annexure 'A' with regard to certain properties and the proceedings filed by the occupiers which are pending in the City Civil Court at Ahmedabad. The petitioner has also requested the Court to direct the respondents No. 1 and 2 to provide complete list of all the litigations filed in the Court by the aforesaid categories of persons. #. The petitioner has pointed out in the petition that in flagrant violation of the rules and regulations and byelaws framed under the Gujarat Town Planning and Urban Development Act (hereinafter referred to as Development Act) and building bye-laws framed under the BPMC Act, construction of buildings had been carried out, and permission is being granted for erection of buildings in violation of the provisions. It is contended by the petitioner that the respondents are silent spectators to the violation of law though they are the guardian and law enforcing agencies with respect to such law. Therefore, the petitioner Society, carrying on the activities of protecting the interest of the consumers and is recognised as a Consumer Association by the State of Gujarat, having locus standie to file this petition, has filed this petition. It is averred in the petition that under the BPMC Act as well as the Development Act, Rules, Regulations and the Byelaws framed, the City is divided for land use zones into Residential, Educational, City, Village, Industrial, Commercial etc. It is pointed out that C.G. Road, i.e. the road commencing from Stadium Cross Roads to Mahalakshmi Cross Road is specifically designated in the Development Plan in a residential zone, and for that purpose the petitioner has relied on the copy of the letter issued by Deputy Municipal Commissioner stating that CG Road and nearby areas, as per the Development Plan, are in residential zone, and not in commercial zone. The said letter dated 8.7.1992 is at Annexure 'B'. That letter further makes it clear that as per the development plan, in the residential zone, permission can be granted only for construction of residential houses and nursing homes. However, it is not permissible to grant permission to construct offices in that area. In substance, it is specifically stated that it is a residential zone and permission can be granted for restricted uses only, i.e. residential and nursing homes. #.1 The petitioner has sought reliance on Appendix A-1 USE ZONE TABLE which is annexed to the petition at Annexure 'C'. Reading the same it clearly appears that as C.G. Road falls under 'predominantly residential zone' the types of development for which the zone is primarily intended is for dwelling houses, flats, tenement buildings, chawls, public residential buildings such as boarding houses, hotels, residential clubs, hospitals, clinic, nursing homes, sanitoriums, schools, colleges and public assistance institutions (residential), technical educational institutions, public and semi-public recreation grounds, gymnasium, health centres, green belts, and place of public worship. It is averred in the petition that though the Corporation has not granted permission to any owner, organiser, promoter or builder permitting the construction and use of the premises for any purpose other than the purpose for which the premises in residential zone can be used, premises are being constructed and used for purposes other than residential. In some cases after the Building Use Permission (BU Permission, hereafter) and in some cases, even without the BU Permission, such use is made. The respondent No.1 -Municipal Commissioner- by letter dated 28.8.1992 was requested to take appropriate action in the matter. The said letter was delivered to Shri P.U. Asnani, Deputy Municipal Commissioner in his office on 29.8.1992. A copy of the letter dated 28.8.1992 is annexed to the petition at Annexure 'D'. It is contended before us that despite drawing attention of the municipal authorities, no one has bothered to initiate any concrete action to stop illegal construction and unauthorised use of the premises for commercial purpose in residential zones. 3.2 It is further averred in the petition [in paragraph 4] that from the newspaper reports, the petitioner came to now that Town Planning Committee of the Corporation was to move a resolution to regularise illegal construction made on the C.G. Road by charging a nominal fee of Rs.600/- per sq. meter. The petitioner has further averred in the petition that even the respondents No. 1 and 2 appeared to be helpless in some cases as whenever they have issued notices, the occupants have filed suits and/or petitions in the Courts and have obtained interim relief against the Corporation. It is further averred in the petition that neither the Corporation nor the occupants are keen to proceed with the litigation. It was submitted that in view of this, the Rules, regulations and the building byelaws are not being enforced. It is averred in the petition that most of the buildings constructed are being put to commercial use though the permission for construction and BU permission have been obtained for residential including, shops, nursing homes, safe deposit vaults, medical centres and medical shops, etc. with parking and common amenities, having been excluded from FSI. It is further averred that the actual use to which the buildings are being put on the other hand are, offices, godowns, shops, kitchens, restaurants, stores, motor garages etc. In some of the cases, even B.U. Permission is not obtained and property is used for purposes other than for which it can be used in a residential zone. On the strength of the contents of Annexure 'A', it is pointed out that various statutory provisions are violated and properties are being used other than for which the permission has been obtained or could have been granted. It is specifically pointed out on the strength of Annexure 'A' that the area which have been specified for the purpose of parking in most of the cases, (the cellar and/or ground floor or hollow plinth) are not being used for parking, but are being used as shops, commercial offices etc. The resultant effect is that there is no parking facilities available in most of the buildings on the C.G. Road. The petitioner has specifically averred in the petition that the buildings have no compound wall at all, and is open on all the sides abutting to the C.G. Road and other byelanes. It is specifically averred that this is done to enable the owners and occupiers to park their vehicles partly in the compound and partly in the place meant for footpath and partly on the already congested C.G. Road. It is pointed out in the petition that this unique system has been adopted in view of the illegal use to which the parking place is being put. It is further averred that the petitioner has received several complaints, both oral as well as written, about no action being taken by the authorities and requesting to see that some action is taken so that the owners/occupiers of the buildings on the C.G. Road put the premises to use strictly as per the permission. The petitioner has placed on record some of the letters with a view to substantiate its case. 3.3 The petitioner has further pointed out that the action of the respondents is violative of Article 14 of the Constitution of India and violative of the provisions of relevant laws namely the BPMC Act, Building Regulations and the Development Act. It is further contended that the inaction is clearly arbitrary and discriminatory against the citizens of Ahmedabad and for the benefit of the builders, which have a very strong lobby, both amongst the politicians as well as amongst the bureaucrats. It is pointed out to us that the Corporation is permitting use of the property for purposes other than residential to those persons who are able to pay the charges as demanded by the Corporation illegally, arbitrarily and without authority of law, and those persons who are unable to pay are compelled to put the property to the residential use. [ #. On the aforesaid premises and others that are urged in the petition, the petitioner has prayed for various reliefs as under: (A). The Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction and order and be pleased to: (1). Command the respondents to forthwith take action against all builders, occupiers, organisers, promoters, societies, companies and associations etc. having any building or premises on the C.G. Road in particular and any other place in Ahmedabad in general to see that such builders, etc. use the premises in accordance with the building use permission granted to them and in accordance with the building bye-laws, T.P. Scheme regulations and the regulations regarding the development plan and in particular the regulations regarding the zoning (C.G. Road being residential zone) and if necessary evict the owners/occupiers from the premises and pull down the constructions as and where necessary; (2). Command the respondents to strictly enforce all building bye-laws, T.P. Scheme regulations and regulations enforcing the provisions of the development plan while granting all future permissions with respect to all buildings in Ahmedabad and in particular on the C.G. Road and be vigilant to enforce the aforesaid regulations and bye-laws even after building use permission is granted to them and to command them to provide such machinery before granting building use permission as the Hon'ble Court deems just and proper, so that the building or any portion thereof is not used for a purpose other than for which building use permission is obtained. (3). command the respondents to furnish a complete list of all litigations pending against the Corporation with respect to all buildings on the C.G. Road to this Hon'ble Court. (4). Permanently restrain the respondents from regularising either the illegal constructions or the illegal use of the buildings in question in any manner whatsoever. (B). The Hon'ble Court in the exercise of its civil jurisdiction under sec. 24 of the Code of Civil Procedure, 1908, be pleased to suo motu call for all pending litigations in the City Civil Court, Ahmedabad as well as before this Hon'ble Court with respect to all buildings or any portions thereof on the C.G. Road in particular and the City of Ahmedabad in general and to proceed with the same and in particular vacate interim reliefs granted in any such proceedings; (C). That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to grant the following interim reliefs: (i). The respondents No. 1,2 and 3 be directed to forthwith take action against all occupiers, builders, societies, associations, companies, having buildings on the C.G. Road in particular and in Ahmedabad in general and to completely restrain such occupiers etc. to make any illegal use of any buildings or premises or any portion thereof contrary to the provisions of the Gujarat Town Planning and Urban Development Act and the Town Planning Scheme Regulations as well as regulations enforcing the provisions of development plan or contrary to the Bombay Provincial Municipal Corporations Act, 1949 or any rules framed thereunder, and if necessary evict the occupants/owners and as and where necessary, pull down the constructions; (ii). To command the respondents No. 1 and 3 to forthwith furnish complete list of all pending litigations against the Ahmedabad Municipal Corporation in any Court with respect to any building or premises situated on the C.G. Road. (iii). By any interim order, the Hon'ble Court be pleased to call for all the suits and other proceedings pending in any court, including this Hon'ble Court, in this Hon'ble Court and be pleased to vacate all interim reliefs granted in such suits and proceedings; (iv). Direct the Municipal Corporation to forthwith enforce the bye-laws regarding parking and compound wall and command the respondent to forthwith see that all buildings on the C.G. Road comply with the bye-laws, regulations, regarding parking and for the said purpose, see that compound wall is constructed by all buildings on the C.G. Road; (v). Direct that the Corporation before granting building use permission in future with respect to any building on the C.G. Road shall obtain an undertaking in favour of this Hon'ble Court from such builder as well as from every occupiers who is going to occupy any portion of the building stating in the said undertaking that the builder as well as the occupier shall not use the premises for any use other than the use for which permission has been granted with respect to the said premises or a portion thereof and a further undertaking that they shall while transferring the premises put in as a term and condition of transfer that the premises shall only be used by the purchaser only for the purpose for which permission has been obtained q and that the undertaking is already given to that effect to this Hon'ble Court and would be binding to such purchaser as a successor-in-title and further that the undertaking shall clarify that this undertaking is given by the occupier for himself and for all his successors-in-title. (vi). Pending the hearing and final disposal of this petition restrain the respondents from regularising the illegal constructions or illegal use in any manner whatsoever. " ] #. From the process, it transpires that notice was issued to the respondents and on behalf of the respondent Municipal Corporation, Deputy Municipal Commissioner, C.S. Sharma, on 12th October 1992 filed an affidavit stating that after the completion of the construction, when completion certificate is filed for B.U. Permission, the Municipal Corporation grant such permission only after having been satisfied that the construction is in accordance with the approved plans or revised plans approved by the AMC and as per the requirements of the zone in which the building is erected. It was further made clear in the affidavit in paragraph 4 that the tendency to change user of the premises from residential purpose to commercial purposes and modification of the construction, apart from on the C.G. Road, is also noticed in the City area. The Corporation came out with a case that there were some litigations pending in the Court and that is how the delay is caused. It is specifically stated that there is further delay caused when the builders or the tenants thereof created a rowdy scene against the Corporation Officials and also sometimes prevent such demolition. It is further stated that when steps are taken for demolition, a situation is created whereby the peace and tranquility in the said locality is also disturbed. #. In paragraph 5 of the affidavit, it has been stated on oath as under: "I assert and say that the Municipal Corporation is in any manner whatsoever not interested in regularising any building or user thereof which is contrary to the regulations framed by the Municipal Corporation. However, since the litigation is pending before the court of law and that there has been delay in implementing the process, it is proposed that the Corporation may levy suitable fine and take an undertaking from the occupants and/or the builders or owners thereof to demolish such unauthorised user within the time stipulated by the Municipal Commissioner. That proposal is now placed before the Town Planning Committee of the Municipal Corporation and it will be considered by the General Body. The proposal does not envisage regularisation as such. In view of the best efforts of the Corporation, if the erring individuals and/or owners of the property continue to have illegal user of the unauthorised construction, the Corporation is justified in getting penalty from such persons which would be effective both as a deterrent as well as a revenue earning to the Corporation." #. The Corporation has come out with a case that as mentioned in Annexure 'A' to the affidavit, in several buildings, unauthorised construction and change of user had been noticed. It is pointed out that on account of the litigation, the Corporation is not in a position to take action. It would be worthwhile to note that it is not clearly stated whether the Court has granted interim orders qua the entire property or a particular shop or flat only. It has been noticed during the hearing in some other matters that even if one person has approached the Court and obtained the stay, the Corporation kept silence with regard to others, and has not taken any action. It was the duty of the Corporation to place on record, true and correct facts. It may be that for minor irregularities, notice might have been given and the suit might have been filed. However, it does not mean that for major irregularities the Corporation was prevented from taking any action. Some details are conveyed orally, which we will refer at appropriate stage. #. The Corporation has placed on record at Annexure 'B' a letter signed by Municipal Commissioner (Mr. P.K. Ghosh). Secretary to the Corporation was informed that as per the bye-laws, regulation etc., in a residential zone, permission is being granted for use of nursing home, banks etc. However, after obtaining permission the property is put to commercial use which is not permissible and the occupiers are continuing the use of the property under orders of the Court. Parking space is used for commercial purpose and, therefore, some penalty should be imposed. The letter is in detail and from that it appears that it was considered if in case if the occupier has commenced the use of the property which is not permissible then on payment of mesne profit at the rate of Rs.600/- per sq. mtr., to the Corporation, the use should be made permissible. However, by giving one month's notice such permission can be cancelled and the amount so deposited be refunded without any interest to the owner and in this behalf no claim writing should be obtained from the occupiers. #. On 15th October 1992, it appears that M.S. Thakkar, Town Development Officer filed an affidavit before the Court placing on record the resolution passed on 9.12.1992 by the Town Planning Committee. It appears that the Town Planning Committee considered the letter of the Municipal Commissioner. From the resolution it transpires that that the Town Planning Committee also observed to the effect that for stopping the use of illegal use, there are several reasons which are coming in the way of the department, and the department has certain limitations and, therefore, it takes longer time. (What those limitations are, is not pointed out). In the meanwhile, the persons who are committing the breach are transferring the property, as a result of which, the persons buying the property is put in difficult situation, and, therefore, it was considered absolutely necessary to take deposits to restrict the change of user. It was decided that if an undertaking is given by the persons using the property for purposes other than for which permission was granted to the effect that within a period of two years from passing the resolution they shall stop such use, and if an undertaking is given not to initiate any legal proceedings, then by taking a deposit of Rs.600/per sq. mtr., notice shall not be executed, i.e. notice for change of user will not be implemented. This resolution was to come into force after the Corporation (i.e. the General Body) approves the same. ##. It is required to be noted that the respondents have not placed before the Court any resolution passed by the General Body of the AMC giving approval to the resolution passed by the Town Planning Committee. Nothing is placed before us to indicate that the State Government has also accorded its sanction to this Resolution. It goes without saying that the resolution passed by the Town Planning Committee was only recommendatory in nature and it could have been put to force only after the same is approved by the general body of the Corporation and the development plan if modified in accordance with law. ##. It appears that after filing the affidavit, on 15th October 1992 the petition was amended. Questions were pointed out in the amendment as to what is the provision for penalties and relaxation, or whether any relaxation is permissible and under what circumstances it is permissible? It was pointed out by the learned counsel for the petitioner that by this illegal and unauthorised construction, FSI will be increased. He submitted that the Municipal Corporation has no power to regularise the illegal/unauthorised constructions made or change of user of such constructions dehors the provisions of the TP Scheme and the provisions of the BPMC Act. If such a permission is granted, it would be an absolute illegality and that will be for the benefit of few persons who have committed the breach of law and to the detriment of the Society. When the respondents have no such power to regularise even for