IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10899 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? : NO -------------------------------------------------------------- HASMUKH SHAH Versus AMC -------------------------------------------------------------- Appearance: MR MC BHATT for Petitioners -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE C.K.BUCH Date of decision: 27/12/2000 C.A.V. JUDGEMENT (Per: B.C. Patel, J.) 1. In view of the order made on 10th October, 2000, by the Hon'ble the Chief Justice and the Hon'ble Mr. Justice A.R. Dave, the matter has been placed before this Bench. 2. The petitioners nos. 2 and 3 are the partners of petitioner no.1, a partnership firm registered under the Indian Partnership Act, 1932. They have filed this petition inter alia praying that the Town Planning Scheme Regulation (hereinafter referred to as the Regulation), Annexure-B, the provisions contained in section-18(j) of the Bombay Town Planning Act, 1955 (hereinafter to as the old Town Planning Act), the General Development Control Regulation (hereinafter referred to as the Development or Control Regulation), Annexure-D, and section-12(m) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the Development Act) be declared as ultra vires to Articles-14, 19 and 21 of the Constitution of India and therefore, void and inoperative. The petitioners have further prayed that section-18(j) of the old Town Planning Act and section-12(m) of the Development Act be declared as unconstitutional since both these provisions delegate essential legislative powers to subordinate legislative authority. The petitioners have further contended that the Ahmedabad Municipal Corporation, respondent no.1 herein, had no authority to compel the petitioners to earmark and reserve any area for common amenity as per the Development Regulation and/or Regulation and have prayed for issuance of writ of mandamus or any other appropriate writ directing respondent no.1 to decide the petitioners' application that may be made for obtaining sanction for putting up additional construction on lower level and on ground floor without taking into consideration the provisions contained in Regulation and/or Development and/or Control Regulation calling upon the person erecting a building to reserve 5% of the total F.S.I. for common amenities. 3. The petitioners have annexed with the petition the decision delivered by the Division Bench in Special Civil Application No. 8553 of 2000 dated August 24, 2000 wherein after hearing the necessary parties, the Court made an order for demolition of unauthorised construction and also issued notice to the builder, the present petitioners. The Court hearing the matter considered the submissions made by the Advocates, who were appearing for Ahmedabad Municipal Corporation and the occupiers of the shops which were constructed unauthorisedly. 4. The learned Advocate appearing for the Ahmedabad Municipal Corporation (hereinafter referred to as the Corporation) submitted that the plans were approved for only residential purpose. He further submitted that, (i) the shops constructed in the cellar are in violation of the provisions contained in the building by-laws, regulations, etc., (ii) shops on the ground floor bearing Nos. 28, 29, 30, 31, 44, 45, 46 and 48 which were never indicated in the original plans, and are constructed not in accordance with the building by-laws, regulations and the plans submitted before the Corporation and approved by the Corporation, and, (iii) construction of 9th floor is in violation of building regulations. 9th floor was not shown in the plan and maximum permissible height having reached at 8th floor, 9th floor could never have been permitted by the Corporation. The developers/builders, the petitioners herein, erected shops contrary to the provisions of law and by concealing these facts, transferred the shops as if they were erected in accordance with the approved plan and in accordance with law. 5. It was submitted by the occupiers of unauthorised constructed shops that the builder has acted in breach of provisions contained in law and therefore, the builder should be directed to pay compensation, for which reliance was placed by the learned counsel appearing in the matter in the case of MANJU BHATIA AND ANTR. V. NEW DELHI MUNICIPAL COUNCIL AND ANTR., reported at (1997) 6 SCC 370 and particularly, paragraph-12 and 13. In response to the notice issued by the Court in Special Civil Application No. 8553 of 2000, the petitioners appeared before the Court and thereafter, they filed the present petition. 6. So far as the facts are concerned, in para-3.9 of the petition, the petitioners have come out with the case that as a builder, they have developed the property known as "Centre Point" in pursuance of development agreement made between the occupiers and the petitioners to put up the construction. The petitioners have not named the occupiers or the owner/s of the building who submitted an application along with the plans under the provisions contained in Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the B.P.M.C. Act) and the Development Act. Chapter-15 of the B.P.M.C. Act relates to the building regulations. A person intending to erect a building or making alteration has to give a notice to the Commissioner of his intention in the form prescribed in the by-laws. The petitioners have not stated the name of the person who submitted the application for erection of the building. The petitioners have averred that they obtained approval of the plan. In all, the scheme of the "Centre Point" consists of 4 Towers (Multi Storied Buildings). The subject matter of the petition is the Tower facing the main road, that is, Tower No.1. It is averred in the petition that the Towers were constructed on Final Plot No.673/2 of Ellisbridge Town Planning Scheme No.3. It is situated on C.G. Road. It is averred in the petition that the petitioners had entered into a contract with each occupier individually and allotted the property as stated in the contract and put them in possession. Thus, it is admitted by the petitioners that they are the persons who have handed over the possession of the constructed area (shops, flats, etc.) to the persons with whom the builder, namely, the petitioners, entered into agreements. Special Civil Application No. 8553 of 2000 was filed by one of the occupiers who was occupying the shops in the building which were constructed unauthorisedly and in utter disregard to the provisions contained in various provisions, such as the B.P.M.C. Act, Development Act, Building Regulations, By-laws, etc. It was made clear that the building was constructed for the purpose of residence. It was made further clear before the Court that Shop Nos. 1 to 27 constructed in the cellar and Shop Nos. 28, 29, 30, 31, 44, 45, 46 and 48 constructed on the Ground Floor were contrary to the provisions of law. As that was unauthorised construction, a direction was given by the Court. Not only that, but 9th floor of the building of the Tower in question was constructed unauthorisedly and the Court also issued direction in that regard. From the judgement, it is clear that there was not only unauthorised change of user of the building but also illegal and unauthorised construction, impermissible under the law. It was contended that though the property contrary to the zoning system, was put to use for purposes other than residential purposes in the immediate past, but, as all such occupiers have put back the property to the use only as permissible as per zoning system, they should not be disturbed. As they put the property to the residential use, no direction was required to be issued against such persons. The persons who were claiming to be the owners of the property in question were heard by the Court. It was alleged that the properties were constructed in accordance with law. However, it was found that there was unauthorised construction and therefore, a direction was given in para-13. The present petitioners have come out with the case that they had no opportunity to challenge the constitutional validity of the provisions contained in the Old Town Planning Act, Development Act, Regulations and Development Regulations. Notice was issued to the petitioners in the aforesaid petition as to why they should not be directed to pay compensation, and, it appears that, therefore, they have filed this petition. The petitioners have not joined the owners of the properties who put up the plans for construction and have not placed on record agreement between the owner of the plot/building and the petitioners. 7. It was submitted before us that section-18 of the old Town Planning Act refers to making and contents of Town Planning Scheme. The said section reads as under : "18. Subject to the provisions of this Act or any other law for the time being in force -- (1) a local authority may make one or more town planning schemes for the area within its jurisdiction or any part thereof, regard being had to the proposals in the final development plan, if any; (2) such town planning scheme may make provisions for any of the following matters :- (a) the laying out re-laying out of land, either vacant or already built upon; (b) the filling up of reclamation of low-lying, swamp and unhealthy areas or levelling up of land; (c) lay out of new streets or roads; constructions diversion, extension, alteration, improvement and stopping up of streets, roads and communications; (d) the construction, alteration and removal of buildings, bridges and other structures; (e) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, school, market, green belts and dairies, transport facilities and public purposes of all kinds; (drainage inclusive of sewerage, surface or sub-soil drainage and sewage disposal; (g) lighting; (h) water supply; (i) the preservation of objects of historical or national interest or natural beauty and of buildings actually used for religious purposes; (j) the imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, the purposes to which buildings or specified areas may or may not be appropriated, the sub-division of plots, the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs; (k) the suspension, so far as may be necessary for the proper carrying out of the scheme, of any rule, by-law, regulation, notification or order made or issued under any Act of the State Legislature or any of the Acts which the State Legislature is competent to amend; (l) such other matter not inconsistent with the objects of this Act as may be prescribed. " With effect from 1st February, 1978, the Development Act came into force and the Bombay Town Planning Act, 1955, was repealed. Section-12 of the Development Act refers to contents of draft development plan. The said section reads as under : Sec.12. Contents of draft development plan. (1) A draft development plan shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out. (2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely :- (a) proposals for designating the use of the land for residential, industrial, commercial, agricultural and recreational purposes; (b) proposals for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings, playgrounds, stadia, open spaces, dairies and for such other purposes as may, from time to time, be specified by the State Government; (c) proposals for designation of areas for zoological gardens, green belts, natural reserves and sanctuaries; (d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development; (e) proposals for water supply, drainage, sewage disposal, other public utility amenities and services including supply of electricity and gas; (f) reservation of land for community facilities and services; (g) proposals for designation of sites for service industries, industrial estates and any other industrial development on an extensive scale; (h) preservation, conservation and development of areas of natural scenery and landscape; (i) preservation of features, structures or places of historical, natural, architectural or scientific interest and of educational value; (j) proposals for food control and prevention of river pollution; (k) proposals for the reservation of land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force; (l) the filling up of reclamation of low lying, swampy or unhealthy areas or levelling up of land; (m) provision for controlling and regulating the use and development of land within the development area, including imposition of conditions and restrictions in regard to the open space to be maintained for buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys and character of buildings and density of built up area allowed in specified area, the use and purposes to which a building or specified areas of land may or may not be appropriated, the sub-divisions of plots, the discontinuance of objectionable uses of land in any area in any specified periods, parking spaces, loading and unloading space for any building and the sizes of projections and advertisement signs and hoarding and other matters as may be considered necessary for carrying out the objects of this Act; (n) provision for preventing and removing pollution of water or air caused by the discharge of waste or other means as a result of the use of land; (o) such other proposals for public or other purposes as may from time to time be approved by the area development authority or as may be directed by the State Government in this behalf. If Section-18(j) and (l) of the Old Town Planning Act and section-12(m) of the Development Act are read together, it becomes clear that provisions are almost identical. 8. Section-12 of the Development Act and section-18 of the Old Town Planning Act refer to contents of draft development plan which include imposition of conditions and Regulations. After following the procedure of publication, the draft development plan, regulation, etc., in Official Gazette suggestions or objections are to be considered. In case of modification, similar procedure of publication, etc., is to be followed. The draft development plan is to be submitted for sanction of the Government. The Government may sanction the draft development plan and regulation subject to modification, if considered proper. The Government may refuse to sanction and direct the authority to prepare a fresh plan. However, fresh development plan and regulations, if required to be drawn, after preparing the same, they are to be published in Gazette. When sanction is accorded, that will be called as final development plan. Thus, when regulations are sanctioned, it would form part of the final development plan. 9. Regulations (Conditions and Restrictions) controlling the development of the area under Town Planning Scheme, Ahmedabad, keeping in mind the provisions contained in Old Town Planning Act, were referred to us. The said Regulations are found in Manual-I, Part-II of Chapter-3 of a book published by Ahmedabad Municipal Corporation. Pertaining to the building regulations, it was submitted before us that when a development plan is in force in an area of a local authority, the regulations framed thereunder shall prevail whenever there is any conflict between the said regulation and the Development Regulations. So far as the high-rise buildings are concerned, under chapter-11 under caption superstructures, regulations are provided. It is divided into four different heads. Requirements of high-rise building under sub-clause 4 provides that certain provisions are required to be made in high rise buildings which are enumerated in clause (i) to (viii). That takes care of controlling the spacing and number of units, clear width of stairs, overhead water storage tank with necessary pumping arrangement for water supply, width of corridor, landings, lobbies and passages. It also takes care of providing a passage or a corridor to every room, tenement or office from the staircase and/or the lift well and prohibits the use of projected balcony from utilising for such a passage. With reference to provision of lift, it refers to entrance lobby to be provided on every floor at the rate to be calculated as mentioned therein. So far as clause-(vii) is concerned, that being relevant, is reproduced hereunder : (vii) 5% of the total permissible floor-space-index means 5% of the total built-up area to be constructed on a building unit on all the floors less the exempted area as permissible under proviso to regulation no.II [22] of these regulations shall be reserved for community facilities such as library, meeting-hall, gymnasium, club-house, etc., and a watchman quarters not more than 50 sq. metres [60 sq. yds.] in area. Thus, reading the aforesaid provision, it is clear that 5% of the total permissible F.S.I. is to be reserved for community facilities such as library, meeting hall, gymnasium, club house, etc. and watchman quarters not more than 50 sq. mtrs. (60 sq. yards) in area. 8. Chapter-12(9) of the Development Regulations refers to superstructure : 12.9 Superstructures - (1) Heights: The minimum height of various rooms and floors in a building measured from pavement to bottom of the lowest structural member at any point shall be as under : (i) 2 mts. (6'-6") for dining space, verandah, bath room, garage for parking, water room, watercloset, puja room, coal room, passage stair cabin and pump room. (ii) 2.60 mts. (8'-6") in case of ground floor and upper floor used for domestic or commercial purposes, if false ceiling is provided, its minimum clear height shall be 2 mts. (6'-6"). (iii) 3 mts. (10') in case of ground floor and upper floors in building used for factory, workshops, godowns and other industrial purposes, provided that in case of folded-roof the minimum height of 3 mts. (10') shall not be measured from the lowest point of the fold: Provided that in case of gabled or slopping roof, the minimum height below the lowest part of roof shall not be less than 2 mts. (6'-6") and an average height of the rooms shall not be less than the minimum prescribed hereinabove. Provided further that in case of trussed roof, the minimum height shall be measured from the pavement to bottom of the tie beam. (2) Area of rooms and their minimum dimensions - The minimum area and dimensions of the rooms shall be as under :- (i) 9 sq.mts.(100 sq.ft.) with no sides less than 2.40 mts. (8') for living room, a dining room, a pagi-room and a library room. (ii) 7.20 sq. mts.(80 sq.ft.) for hostel room and hotel room with no side less than 2.40 mts. (8'). (iii) 5.4 sq. mts. (60 sq.ft.) for a store room and kitchen, study room, with no side less than 1.8 mts. (6') (iv) 1.35 sq. mts. (15 sq.ft.) for bath room, puja room, dressing room, pump room, water room, coal room, with no side less than 90 cms. (3'). (v) 12 sq. mts. (130 sq.ft.) with width not less than 2.7 metres (9') and clear height not less than 2 mts. (6'-6") at any point in case of a garage for parking. (vi) 0.81 sq.mts. (9 sq. ft.) for an urinal, a privey or a water-closet, washing room with side not less than 90 cms. (3'). (vii) 13.5 sq.mts. (150 sq. ft.) with width not less than 3 mts. (10') and depth not less than 4.5 metres (15') for shops and buildings used for service establishment, commercial and industrial purposes. (viii) in case of shopping centres, the minimum dimension of shops shall be 2.4 x 1.8 mts. (8'-6") (ix) The loft at a minimum height of 2 mts. (6'-6") not exceeding 1/3rd area of the room may be allowed in any room. (3) Minimum requirements - The minimum requirement for various types of buildings shall be as under :- (i) One living room, one kitchen, one bath and one latrine for one dwelling unit. (ii) in case of cinema, theatre or a lecture hall, the aggregate area of foyer exclusive of all passages shall be provided at every sitting level at a rate of 0.2 sq. mts. (2.5 sq. ft.) per seat. Entry and exit passages of minimum 2 mts. (6'-6") width shall be provided. The water-room and the snack-bar each of not less than 3 x 3 mts. (10'x10') in area shall be provided. The booking office shall be located in the foyer in such a way that queues of persons intending to buy tickets shall not occupy the margins of the building unit. (4) Requirements of high-rise buildings :- In case of high-rise buildings the following provisions shall be made : (i) Subject to other building by-laws controlling the spacing and numbers, the clear width of stair shall not be less than 1.5 mts. provided that in case of exclusive residential buildings with not more than two tenements, flats or apartments on each floor the minimum width of stair shall be 1.2 mts. (4'). (ii) An overhead water storage tank with minimum capacity of 11,300 litres shall be provided on the top floor with necessary pumping arrangement for water supply. (iii) The width of corridor, landings, lobbies and passages shall not be less than 2 mts. (6'-6"). (iv) Every room, tenement or office shall be provided with a passage or a corridor from the staircase and/or the lift-well. In no case, any part of a projected balcony shall be utilised for provision of such a passage. (v) lift shall be provided at the rate of one lift for 20 tenements or part thereof for residential buildings and at the rate of one lift per 1000 sq. mts. or less of built up area for non residential buildings. The tenement and built up area on ground floor and two upper floors shall be excluded in computing the above requirement. Lift shall be provided from ground floor and shall have a minimum capacity of six persons. On the basis of detailed calculations based on the relevant provisions of National Building code, the number of lifts can be varied. Provided that if the number of floors does not exceed three floors, excluding the ground floor, the lift may not be provided. (vi) Notwithstanding anything contained in the above regulation for the number of lifts, in case of high rise buildings with 25 mts. or more in height at least two shall be provided. (vii) 5% of the total permissible floor-space-index means 5% of the total built up area to be constructed on a building unit on all the floors less the exempted are as permissible under proviso to regulation no. 2(22) of these regulations, shall be reserved for community facilities such as library, meeting-hall, gymnasium, club-house, etc. and a watchman quarters not more than 50 sq. mts (60 sq.yds.) in area. Such space shall be provided only on the ground floor and its minimum height may be 3 mts. (10'). (viii) The entrance lobby shall be provided on every floor, at the rate of 6.75 sq. mts. (72 sq. ft.) per each flat tenement of apartment of that floor. The total area of the entrance lobby thus provided on each floor shall be continuous and integral. The entrance lobby shall be kept permanently open without any enclosure