SCA/658119/1988 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6581 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SARDAR SMURTI CO-OPERATIVE HOUSING SOCIETY & 2 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR MK VAKHARIA for Petitioner(s) : 1 - 3. MR JK SHAH, AGP for Respondent(s) : 1 - . MR HS MUNSHAW for Respondent(s) : 2, MR BF UJJAINI for Respondent(s) : 3, MR RM CHHAYA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/07/2008 ORAL JUDGMENT Petitioner is a co-operative society. The petitioner challenges an order passed by the District SCA/658119/1988 2/5 JUDGMENT Development Officer as confirmed by the State Government directing the petitioner Society to remove the construction. It is not in dispute that the petitioner society came into existence in 1970's and plots were also allotted to the members around the same time. In fact, in the petition, the petitioners have stated that members have already put up construction over their plots somewhere in the year 1972. On 23rd September 1986, a show cause notice came to be issued to the Society by the District Development Officer stating, inter alia, that in the construction that the members have carried out, there have been some breaches of conditions of the lay out plan approved by the Authority. Pursuant to this show cause notice ultimately, impugned order dated 31.3.87 annexure A came to be passed by the DDO who ordered that the entire construction put up should be demolished and the land be restored to its original position. For doing so, the DDO came to the conclusion that there was breach of condition of NA permission granted to the society with respect to the land in question. 2. The petitioners approached the State Government against the order passed by the DDO. However, by order dated 15.7.88, the Secretary rejected the revision application and upheld the order passed by the District Development Officer who directed that the Society may complete the construction as per the plan within three moths failing which there would be summary eviction. Under these circumstances, the SCA/658119/1988 3/5 JUDGMENT petitioners have approached this Court. 3. The petition which was filed in the year 1988 came to be admitted and stay came to be granted in favour of the petitioner at the relevant time which has been continued till date. 4. To ensure that the construction of the bungalows in the said society is not wholly unauthorized or impermissible, this Court on 16.7.07 called for a report from the District Development Officer which has been produced along with affidavit dated 22.8.07. Upon perusal of the report, it appears that there are certain breaches found. Firstly, it is stated that instead of 40 ft. road,the road maintained is of 31 ft. and the internal road which was meant to be 25 ft. wide is reduced to 20 ft. It is also pointed out that though initially one common plot was shown in the plan, three separate common plots are provided. It was also recorded that no commercial construction is found on the site. 5. Learned advocate Ms.Amin for the petitioners pointed out that the contents of para 5 and the later part of the report of DDO pertains to survey No.25 on which Gandhi Smruti Society is situated and it has nothing to do with the present petitioner Society. She submitted that after long delay and passage of time, construction may not be ordered to be demolished. She submitted that large number of members have sold and resold the properties and new SCA/658119/1988 4/5 JUDGMENT equities have been created. In any case, no part of the construction is such which cannot be otherwise regularized. She pointed out that though earlier some commercial construction was carried out, as is emerging from the report of the DDO, such construction no longer exists. 6. Learned AGP Shri Shah on the other hand supported the Government action and submitted that even if demolition is not to be ordered, the petitioners must approach the Government for regularization of the construction carried out without proper authority. 7. Having heard the learned advocates appearing for the parties and having perused the material on record, it appears that the construction was carried out way back in 1970's. For the first time, notice was issued in the year 1986. Considering the passage of time before issuance of notice as also during the pendency of this petition, at this point of time, resorting to total demolition of the construction would be wholly inequitable. Particularly when it is shown that the construction is not such which cannot be otherwise regularized and it is also pointed out that the existing road width is less than the minimum required under the regulations, I do not find that the order of the DDO directing total demolition of the construction of the members can be sustained. 8. In the result, order passed by the DDO Annexure SCA/658119/1988 5/5 JUDGMENT A as upheld by the order passed by the Government Annexure B are set aside. Even while granting the prayer as above, the petitioner society and its members cannot continue to enjoy the construction which was otherwise not according to the plans or without authorized permission. They shall have to approach the Government for regularization of such construction on payment of such fine as may be decided. Under the circumstances, in addition to the above directions, it is directed that the petitioner-society shall approach the Competent Authority in the Government with a request to regularize the construction which may be otherwise without proper sanction. However, nothing stated hereinabove, would come in way of AUDA in implementing the Town Planning Scheme or Development Plan under the Gujarat Town Planning and Urban Development Act, 1976. 9. The petition is accordingly disposed of. Rule is made absolute to the aforesaid extent. (Akil Kureshi, J.) (vjn)