SCA/11209/2005 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11209 of 2005 With MISC.CIVIL APPLICATION No. 68 of 2005 IN SPECIAL CIVIL APPLICATION No. 3087 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE KSHITIJ R.VYAS HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ================================================================ 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 ? ====================================================== KAPILABEN ASHOKBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ====================================================== Appearance : MR AJ PATEL for Petitioner(s) : 1, MR HL JANI, AGP for Respondent(s) : 1, MR RM CHHAYA for Respondent(s) : 2, None for Respondent(s) : 3, PARTY-IN-PERSON for Respondent(s) : 4, ======================================================= CORAM : HONOURABLE MR.JUSTICE KSHITIJ R.VYAS and HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 13/12/2005 SCA/11209/2005 2/55 JUDGMENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA) 1. As the subject matter of the petition as well as Misc. Civil Application [ 'MCA' for short] is the same, they were heard together by us and now they are being disposed of by this common CAV judgment. 2. The petition is filed by Smt. Kapilaben Ashokbhai Patel, who is also opponent no. 4 in the MCA, but in this judgment she is referred to as 'the petitioner'. Applicant of the MCA is respondent no. 4 in the petition. Accordingly he is referred to as respondent no. 4 in this judgment. Rest of the parties are referred to in accordance with their position in the petition. 2.1. The petition is filed for claiming relief to the effect that appropriate direction be given to respondent no. 1 to issue notification appointing Appellate Officer/Authority for the development area of Gandhinagar township in accordance with the provisions of section 5 (1) of the Gujarat Regulation of Unauthorized Development Act, 2001 [hereinafter referred to as 'the Act']. By way of interim relief, it is prayed that the execution of order contained in communication dated 24th September, 2004 and order dated 24th September, 2004 of respondent no. 2 be stayed pending final disposal SCA/11209/2005 3/55 JUDGMENT of the petition and also to restrain the agents and servants of respondent no. 2 from taking any coercive measures against the petitioner pursuant to notice dated 9th November, 2004. 2.2. MCA has been filed by respondent no. 4 requesting this Court to take appropriate action against opponents nos. 1 to 18 under the provisions of the Contempt of Courts Act and also to order the prosecution for filing false affidavit and to direct the petitioner and the concerned authorities to remove the unauthorized construction. 3. The case of the petitioner is that she had purchased plot no. 493/2 admeasuring 181.50 sq. mtrs. situated in sector no. 22, Gandhinagar township for total consideration of Rs.4,50,000/- by a registered sale-deed. The said plot was purchased from one Ishvarsinh Baldevsinh Vaghela who had purchased the said plot at the public auction which was sanctioned by Additional Collector, Gandhinagar vide his order dated 11th February, 1976. The plot was sold to Ishvarsinh on the condition that it was to be utilized for residential purpose and accordingly he had put up construction for residential unit on the plot. It is the case of the petitioner that she converted the user from residence to commercial and constructed the existing structure on it which is a commercial one. The same was objected to by respondent no. 4 and at his instance proceedings for SCA/11209/2005 4/55 JUDGMENT violation of building regulations were initiated against the petitioner. According to petitioner, the said proceedings ended in a settlement between the parties upon payment of Rs.40,000/- to respondent no. 4 by way of damages and in view of the settlement, the Dy. Secretary, Revenue Dept. dismissed the Revision Application filed by respondent no. 4. According to the petitioner, thereafter respondent no. 3 – the Collector, Gandhinagar initiated proceedings against the petitioner for removal of the unauthorized construction put up by the petitioner on the plot in question. Against the order of Collector dated 18th March, 2000 the petitioner preferred Revision Application before respondent no. 1 i.e. the Secretary, Urban Development and Urban Housing Dept. and along with it, application for interim relief was also filed. Respondent no. 1 by order dated 15th June, 2000 rejected the application for interim relief, against which the petitioner approached this Court by filing Special Civil Appln. No. 7708 of 2000. Learned Single Judge of this Court by order dated 6th February, 2001 dismissed the petition in limine and vacated the ad-interim relief granted earlier. The petitioner preferred appeal against the order of the learned Single Judge being Letters Patent Appeal No. 110 of 2001, which was permitted to be withdrawn by the Division Bench by its order dated 20th February, 2001 to enable the petitioner to resort to remedy available to her in light of the notification of the Govt. of Gujarat dated 9th October, 2000 before the Competent Authority. In fact the petitioner by the said order had withdrawn the SCA/11209/2005 5/55 JUDGMENT main petition itself rendering the appeal meaningless. 3.1. According to the petitioner, on 27th August, 2001 she made application to the Chief Executive Officer under the provisions of the Gujarat Town Planning and Urban Development Act [ 'Development Act' for short] seeking approval of the construction put up on the plot in question. However, the Senior Town Planner of respondent no. 2 rejected the application by order dated 12th February, 2002. In the meanwhile respondent no. 4 also preferred Special Civil Application No. 3087 of 2001 before this Court complaining that respondent no. 3 – Collector was not taking any action against the petitioner for removing the unauthorized construction. It may be noted here that the Act came into force on 1st September, 2001. It is the say of the petitioner that a fresh application was made to respondent no. 2 for sanction of building plan on 2nd July, 2004. In view of the same, petition filed by respondent no. 4 was disposed of by the Division Bench by order dated 7th July, 2004 directing the concerned authority to decide the application of the present petitioner, who was respondent no. 4 in the said proceedings, as expeditiously as possible in accordance with law and it was further directed that if it was found that no relief could be available to respondent no. 4 i.e. the present petitioner, action to remove the unauthorized construction should be taken by the authority immediately. The respondent authority rejected application of the petitioner by order dated 24th SCA/11209/2005 6/55 JUDGMENT September, 2004 and accordingly notice was served upon the petitioner by the Junior Town Planner of respondent no. 2 authority directing petitioner to remove unauthorized construction within seven days from the date of the service of the notice and to discontinue the commercial use of the entire building. According to the petitioner, order dated 24th September, 2004 was challenged by way of Regular Civil Suit No. 318 of 2004 in the Court of the Learned Civil Judge [J.D.] at Gandhinagar. The petitioner also preferred application for interim relief at Exh. 5 which was rejected by the learned Civil Judge by order dated 19th April, 2005. Against the said order the petitioner approached the learned Presiding Officer, Fast Track Court No. 3 by filing Civil Misc. Appeal No. 33 of 2005 which was also dismissed by the learned Judge vide order dated 4th June, 2005. According to the petitioner the learned Judge, Fast Track Court dismissed the appeal on the ground that considering the facts of the case, the appropriate remedy was by way of appeal to the Appellate Authority appointed under the Act. Now it is the say of the petitioner that she has been left high and dry since respondent no. 1 has not created any Appellate Authority under the provisions of section 5 (1) of the Act. She has, therefore, approached this Court by filing the present petition. 4. The respondents have contested the petition by filing affidavit-in- reply. Mr. RS Gandhi, Senior Town Planner, Gandhinagar, has filed affidavit SCA/11209/2005 7/55 JUDGMENT which is on behalf of respondent no. 1 – State, not disputing the fact that initially a plot no. 493/2 situated in Sector No. 22, Gandhinagar township admeasuring 181.50 sq. mtrs. was purchased by Ishvarsinh Baldevsinh Vaghela in auction. According to him, the sale was attached with a condition that it was to be used only for residential purpose. He has stated that in clear violation of the said condition, commercial building has been constructed on the said plot. It is his say that the prayer of the petitioner cannot be accepted because the Act was meant for one year initially, but thereafter it was extended upto 2002 and lastly upto the year 2003. He has stated that since 2003 the Act has ceased to exist. It is his say that the petitioner cannot bank upon the provisions of this Act to get the unauthorized construction regularized. He has also produced notification showing the last extension which is dated 2nd June, 2003 extending the period prescribed for issuance of notice under section 3 (2) of the Act upto 3rd September, 2003. He has averred that after 3rd September, 2003 no application for regularization of unauthorized construction can be entertained and now there is no question of appointing Appellate Authority under the provisions of section 5 of the Act. Another affidavit has been filed by Natubhai Mevada on behalf of respondent no. 2. He is Junior Town Planner in the office of respondent no. 2. He has narrated factual aspects of the case. He has stated that upon purchase of the plot, the petitioner applied for permission to construct residential house and after scrutiny of the plans, etc. the Competent Authority SCA/11209/2005 8/55 JUDGMENT accorded its approval on 12th May, 1997. The construction proposed to be carried out comprised basement, ground floor, first floor and second floor and a cabin to cover the staircase. The total construction was to be of 185.49 sq. mtrs. after leaving the marginal land, etc. It is his say that instead of residential premises the petitioner has constructed commercial building containing 4 shops in the basement with shutters, 7 shops on the ground floor with shutters, 5 shops on the first floor with shutters and one hall on the second floor and in view of the same, the petitioner was served with notice for demolition as well as to pay the penalty He has agreed with the stand of respondent no. 1 that the Act has ceased to exist and the prayer of petitioner cannot be granted. He has further averred that merely because the final development plan for the area has been approved by the State Government on 16th February, 2004, the construction of the petitioner cannot be regularized. It is his say that though in the judgment dated 7th July, 2004 respondent authorities were required to remove the unauthorized construction, it has not become possible to do so because the petitioner has been filing litigation one after the other. It is his say that the provisions of the Act are not applicable to the area under Gandhinagar and hence there is no question of appointing Appellate Authority under the Act. 4.1. Respondent no. 4 has also filed affidavit-in-reply. He has controverted the contentions of the petitioner raised in the petition. He has in SCA/11209/2005 9/55 JUDGMENT detail narrated the terms and conditions on which the plot was originally sold to Ishvarsinh and has stated that the plot was subsequently purchased by the petitioner with all terms and conditions remaining the same. He has averred that by filing proceedings after proceedings the petitioner has avoided to make compliance with the original order of respondent no. 3 – Collector for removal of the unauthorized construction. He has also complained against the authorities for not taking action for removal of the unauthorized construction inspite of the direction of this Court and this Court making it clear that pendency of the petition would not come in the way of the authority in taking action against the petitioner. To support his say, he has quoted observations of the Division Bench made in his petition being Special Civil Application No. 3087 of 2001 in order dated 23rd June, 2004. 4.2. On the aforesaid averments the respondents have prayed that the petition be dismissed. 5. To controvert the aforesaid averments made in the affidavits-in- reply Mr. Ashokbhai Patel has filed affidavit-in-rejoinder on behalf of the petitioner. He has disputed the claim of respondent authorities that Act has ceased to have effect after September 2003 and to substantiate his say that it still exists, he has stated instance of notice having been issued to one Pandurang SCA/11209/2005 10/55 JUDGMENT Cooperative Housing Society, which is dated 10th November, 2003. It is his say that under the Act it was incumbent upon the authority i.e. respondent no. 2 to issue notice to charge the impact fee to enable the petitioner to get the construction regularized, but the same has not been done. According to him, since there was failure on the part of respondent no. 2, the petitioner had to make an application seeking approval of the unauthorized construction. 6. In view of the aforesaid rival cases, the concerned learned advocates have made submissions in support of them. Mr. AJ Patel, learned advocate appearing for the petitioner has submitted that under the provisions of section 3 (2) respondent no. 2 was required to issue notice to the petitioner, but respondent no. 2 has failed to do so, hence the petitioner on her own made application seeking regularization which was required to be granted, but the designated authority has committed error in rejecting it. He has submitted that the petitioner has been deprived of her valuable right to prefer appeal since no appellate forum has been created under section 5 of the Act. He has further submitted that the Act is applicable to areas under the Urban Development Authorities and with the creation of Gandhinagar Urban Development Authority [GUDA] - respondent no. 2 and approval of its development plan by respondent no. 1, it became applicable to Gandhinagar also. He has submitted that land was originally actually purchased by Ishvarsinh and it was not allotted SCA/11209/2005 11/55 JUDGMENT to him. The same was subsequently purchased by the petitioner, she was, therefore, absolute owner of the plot and she could utilize it for her own purpose. Lastly, he has contended that without appointment of the Appellate Authority now the petitioner has been rendered remediless. He has submitted that though the say of respondents no. 1 and 2 is that the Act has ceased to exist, they have not demonstrated how it has expired. In his submission, unless and until there is a repealing statute, the legislation survives and in the instant case no such Repeal Act is passed by respondent no. 1. He has, therefore, submitted that the reliefs claimed in the petition may be granted. 6.1. Mr. HL Jani, Ld. AGP has submitted that undisputedly the construction is illegal and the petitioner is required to remove it forthwith. He has submitted that the Act was in force upto September 2003 and now it has ceased to have effect. He has, therefore, submitted that the reliefs as prayed for by the petitioner cannot be granted. 6.2. Mr. RM Chhaya, learned advocate appearing for respondent no. 2 has also submitted on this line. He has submitted that even when the Act was in existence it did not apply to the area under Gandhinagar. He has submitted that initially the Act was introduced in the year 2001 which was for one year, but later on it was extended till September 2003 and thereafter it has become SCA/11209/2005 12/55 JUDGMENT defunct. He has, therefore, submitted that the prayer of the petitioner cannot be granted. 6.3. Respondent no. 4 has submitted that the petitioner as well as authority be directed to demolish the unauthorized construction. He has also submitted that by not complying with the direction of this Court issued in the judgment dated 7th July, 2004 the respondents - authorities have deliberately flouted the mandate of this Court. He has, therefore, prayed that on his application appropriate proceedings be initiated against all the opponents therein for holding them guilty of committing contempt of the Court and to punish them adequately. 7. Having considered the rival contentions of the parties and the submissions of the learned advocates and having perused the pleadings, it is clear that the plot of land in question originally belonged to Ishvarsinh Vaghela who purchased it in auction sale on the terms and conditions prescribed by the authority. In accordance with the said terms and conditions the plot was to be used for building residential premises. In the year 1996 it was purchased by petitioner from Ishvarsinh and she put up commercial construction thereon. It transpires from the record and even the petitioner has not seriously disputed the fact that the construction is in breach of the condition with regard to its use and SCA/11209/2005 13/55 JUDGMENT the development carried out by her on the said plot is unauthorized one. It is also clear that after the order of the Collector and the resultant notice calling upon her to remove the unauthorized construction, number of proceedings have been filed by the petitioner either before concerned authorities or before the Courts including this Court. It is also clear that in all the proceedings the petitioner has suffered set-back. The present petition is now filed seeking relief against respondents no. 1 and 2 requiring them to create Appellate Authority under the provisions of the Act. 8. Considering the aforesaid contentions of the parties, first it is necessary for us to decide whether the Act is still in existence or it has ceased to operate since September 2003. According to respondent authorities, the Act was initially introduced in the year 2001 and it was meant for one year. Later on, by issuing notifications the term was extended, at first instance upto 2002 and later on upto September 2003. Thereafter, no notification extending the term of the Act has been issued. This stand has been taken by them in view of the extension of the time limit prescribed for issuing notice under section 3 (2) (a) of the Act, only upto September 2003. It is, however, the submission of Mr. Patel that there is no positive, authentic provision repealing the Act and till such time the Act is repealed, it continues to exist. He has cited the instance of Pandurang Cooperative Housing Society; but the submission of Mr. Patel has SCA/11209/2005 14/55 JUDGMENT been hotly contested by the Ld. AGP Mr. Jani as well as Mr. RM Chhaya. 9. To appreciate this main controversy, it will be necessary for us to explore the purpose for which the Act was enacted by the legislature. To ascertain the same, we may refer to the statement of objects and reasons. Though we are not expressing any opinion whether the statement of objects and reasons for an Act is admissible as an aid to its construction, we do feel certain that it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the enacting authority to pass the law and the urgency of the exigency it sought to remedy. It is the duty of the Court of law to interpret the legislation and to find out the intention underlying the laws whose enforcement is sought through judicial authority. One of the ways in which this purpose can be achieved is to seek the aid of the statement of objects and reasons to the aforesaid extent at-least. Therefore, we reproduce the relevant portion of the same verbatim as under :- “On account of the rapid growth of economic opportunities in and around the major cities of Gujarat, there has been constant influx of the rural population to the urban areas resulting in steep increase in demand for properties for residential, commercial and other uses. This has resulted in feverish construction activities and, several buildings so SCA/11209/2005 15/55 JUDGMENT constructed do not conform to the existing building regulations. Consequently, in the urban areas of the State there have come up a large number of buildings which have been constructed without permission or where permission is granted, constructed in contravention of development and control regulations. The owners and occupants of such buildings have been given notices under the Bombay Provincial Municipal Corporations Act, 1949 or, as the case may be, the Gujarat Town Planning and Urban Development Act, 1976 requiring them to remove, pull down or alter the buildings. However, the owners and occupants have failed to comply with the requisition of the notice. Administratively, removal or pulling down of large number of building is neither feasible nor desirable. Removal, pulling down or alteration of buildings on a large scale is fraught with the possibility of creating law and order problem and hardship to the people as a large number of the people would be rendered homeless who would have to be provided with housing. The social and economic fabric of the society would be disturbed leading to a chaotic situation in the society. In order to avoid such a situation, intervention of the Government by enacting suitable legislation has become a compelling necessity. Faced with similar situation, some other State Governments in the country have also come out with suitable legislation for regularisation.” SCA/11209/2005 16/55 JUDGMENT 9.1. The aforesaid passage quoted from the statement of objects and reasons of the Act is self-explanatory. This piece of legislation has been enacted by the Government in view of the large scale construction, commercial as well as residential in the urban areas of major cities of Gujarat, carried out to meet the requirement of rapid growth in population and the resultant commercial activity in the cities due to constant influx of rural population in these areas. Most of these constructions did not conform to the standards laid down under the building laws and/or terms and conditions of permits/licences and, therefore, necessity to demolish such unauthorized construction arose. However, such large scale demolition was not feasible nor desirable considering the financial loss and the hardship to people that could be caused on account of demolition. It was also found by the Government that whenever such situation arose in other States, a suitable law was enacted by them to avert the difficult situation. In this background the Government of Gujarat also thought it essential to have the present enactment and that is how the Act has come into force. It is, therefore, necessary for us to find out whether the exigency requiring the enactment of the Act is over and whether the said legislation has expired. 9.2. To answer these questions, we may revert to the notification of SCA/11209/2005 17/55 JUDGMENT the State Government containing Bill of the Act to acquaint ourselves with the chronological events by which the Act has been brought into force. Considering the emergency the Gujarat Regularization of Unauthorized Development Ordinance, 2000 was promulgated on 22nd November, 2000 to regularize the unauthorized development in the urban areas of the State. This was done as the Gujarat Legislative Assembly was not in session. Thereafter, the Gujarat Legislative Assembly was summoned to meet on the 19th March, 2001, but the said Ordinance could not be replaced by Act of the State Legislature for want of time since by virtue of sub-clause (a) of clause (ii) of Article 213 of the Constitution of India; the said Ordinance would have ceased to operate after the 29th April, 2001, the date on which the period of