IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6982 of 1999 with SPECIAL CIVIL APPLICATION No 10017 of 1999 For Approval and Signature: 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? : 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 -------------------------------------------------------------- MANSINGBHAI KAHALSINGBHAI Versus SURAT MUNICIPAL CORPORATION -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6982 of 1999 MR BM MANGUKIYA for Petitioners MR PRASHANT G DESAI for Respondent No. 1, 2, 3 2. Special Civil ApplicationNo 10017 of 1999 MR BM MANGUKIYA for Petitioners MR PRASHANT G DESAI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision:17 /02/2000 CAV JUDGEMENT #. The petitioners have invoked the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India and prayed that the local authority should regularise the unauthorised constructions made by them and/or the plan for developing the property which has been submitted by them should be deemed to have been granted as no decision rejecting or sanctioning the same has been taken within the stipulated time. #. The petitioners have completed the construction without getting approval of the local authority and when notice under section 261(a) of the BPMC Act was given for demolition, they have rushed to this court taking various contentions. Now-a-days it is the tendency on the part of the organizors/builders to take money from innocent people for the purpose of booking flats and thereafter putting them in helpless condition by not complying with the appropriate building laws and bye laws of the local authority. The ultimate sufferers are the people who have invested their large amount of money for getting a roof over their heads and ultimately they get nothing in the process. The local authority also on the other hand is not vigilant from the very beginning . Therefore, a machinery is required to be evolved by local authority to prevent illegal construction of the buildings rather than undertaking the exercise of demolishing the same after the so called construction is over. Prevention is always better than cure. Present case is a glaring instance as to how the petitioners without bothering about any rules or regulations framed by the local authority completed the construction of the building inspite of injunction order issued by the local authority and ultimately when the local authority started demolishing the said illegal construction, rushed to this court for appropriate relief of injunction against such demolition. The land in dispute is situated in Katrgam in the Surat city bearing survey number 470/1, 472 having sub plots 95,46,47,48 and 49 of Kuber Park , Ved Road, Surat. In SCA No. 6982 of 1997 it has been prayed by the petitioners that the respondents have no authority to demolish the construction put up by the petitioners in the aforesaid survey no. 470/1 and 472. #. It is the case of the petitioners that the land in question is part and parcel of urban agglomeration of Surat. The predecessor in title of the petitioners had submitted a scheme under section 21 of the Gujarat Town Planning and Urban Development Act 1976 for the purpose of providing houses to the weaker sections of the society and the scheme was sanctioned by the competent authority under the said Act. According to the petitioners the powers of Surat Urban Development Authority under the Town Planing Act for development and redevelopment of the land falling within the limit of the Corporation are being exercised by the Surat Municipal Corporation. The Surat Municipal Corporation therefore sanctioned development plan for the land and accordingly original owner had submitted development plan and by an order dated 26.4.81 which is at Annexure.A to the petition ,the Deputy Town Planner of the Surat Municipal Corporation granted permission for construction on various conditions. #. The petitioners thereafter decided to jointly develop the land in question and started construction on the land. It is the say of the petitioners that they are not very literate people and that they have submitted development plan to the Corporation. After the construction was already made, they received a notice under section 260 of the BPMC Act to show cause as to why the offending structure should not be removed as the same was constructed without permission of the Corporation and that after serving the notice the Corporation started demolishing the construction and at that stage they realised that they have to give revised development plan to the Corporation and after consulting their architect, they have submitted revised plan to the Corporation which are at Annexures B, C and D to the petition. The petitioners have therefore, prayed that the Corporation has no authority to take action under section 260 of the BPMC Act and interim relief was also sought to the effect that they should be restrained from demolishing the construction. The petitioners thereafter submitted an amendment in the SCA No. 6982 of 1999 on the ground that the removal of the petitioners construction is at the instance of one Mr., Lakhani who was Deputy Mayor of the Corporation and is a leader of Bharatiya Janata Party of a particular zone and since the petitioners are not going on well with said Lakhani, at his instance the City Engineer and zonal officer of the Corporation are trying to demolish the construction of the petitioners. In the said amendment a contention has been taken that there are more than hundreds of buildings which have been constructed by the people with the help of said Shri Lakhani and no action has been taken by the Corporation to demolish the same. Therefore, the actin of the Corporation in demolishing the property of the petitioners if malafide and discriminatory. Aforesaid amendment has been granted and therefore, said amendment should be considered as a part of this petition. The petitioners have also filed another petition being SCA No.10017 of 1999. #. Mr. Mangukia learned advocate for the petitioners has raised the following points in his arguments. 1. That the construction in question is not offending and the same can be regularised by the Corporation by charging appropriate penalty. 2. That notice under section 260(1) of the BPMC Act could not have been issued as the T.P.Scheme is applicable for the area in question. 3. The plans submitted by the petitioners have not been dealt with by the Corporation and therefore, plans deemed to have been sanctioned. #. Over and above the aforesaid contention it was also argued by Mr. Mangukia that as per the information of the petitioners a policy decision has been taken by the Corporation not to demolish the constructions in the residential area even if they are illegal construction and for the purpose of producing necessary resolution as regards the aforesaid policy decision the petitioners had taken time. But no such Resolution is placed on record. Mr. P.G.Desai learned advocate for the Corporation pointed out that no such Resolution is passed by the Corporation. Therefore, so far as the last submission of Mr. Mangukia is concerned the same is not required to be considered. #. I have heard both sides in details. So far as the argument that the construction of the petitioners being not offending is concerned, an affidavit in reply has been filed by the Corporation in SCA No. 6982 of 1999. It has been pointed out in the said affidavit in reply that the lay out plan dated 26.4.91 was sanctioned for Survey No. 470/1 and 472. But the petitioners have not got the plan sanctioned for the property in question. The Corporation had issued notice under section 267 of the BPMC Act on 17.6.99 and under section 260(1) on 17.6.1999. Said notices were served on the petitioners but no reply or representation was made. The Corporation also sent another reminder dated 1.7.1999 but no reply was given to that also. Copies of the said notices are annexed as Annexure I collectivity to the said affidavit in reply. Thereafter demolition work was started on 7.7.99 and ground floor plinth RCC columns and beams were demolished. However, the petitioners again started the construction work and completed the construction of four floors. Some photographs have been produced at Annexure.III which is annexed with the affidavit in reply. It is stated that after 26.10.1999 the Corporation has not demolished any illegal construction of the petitioners but according to the respondents even after status quo order of this Court, the petitioners went on making construction. It has been pointed out in para 11 of the reply that the aforesaid construction is contrary to the provisions of Chapter 12, Rule 6 of the BPMC Act. A further affidavit in reply is also filed by the Corporation and it has been pointed out in para 2 of the said affidavit in reply that the premises in question is situated in Katargam area and the construction is made without any prior permission and said construction cannot be regularised in view of the fact that said construction is against the building bye laws and development control regulation. It was also pointed out that only lay out plan of GALA type construction on the ground floor was sanctioned while the petitioners have constructed fifth floors in violation of the development control regulation. It is also submitted in the said para of the reply on page 67 that the FSI is available only 1.2 while it is used more than three times. It is also stated that there is construction on the margin land which cannot be regularised. It was also stated in para 3 of the additional affidavit that the construction is against the Regulation No. 3.4.1.1.(i)(a) and also Regulation 11.1.4., 11.6.1, 11.6.4., 11.7.1 and Regulation 16. It is also pointed out in para 4 of the additional affidavit that the Corporation had issued injunction on 17.6.99 under section 267 of the BPMC Act and that on 7.7.99 the columns and plinth level construction was removed. The petitioners started construction again and therefore, again notice was given on 26.10.1999. At that time an assurance was given by the petitioners to remove the illegal construction and also presented a cheque for Rs. 10 lacs towards the security of such assurance. That cheque was bounced back. It is contended in para 5 that after filing the SCA, during the pendency of the petition, the petitioners made further construction upto 4th floor and has transferred the premises. #. In the aforesaid back ground so far as the first contention of Mr. Mangukia is concerned, there is no substance in the same to the effect that the construction in question is not offending construction. #. In the notice issued by the Corporation they have already pointed out that the construction has been made without leaving the margin land , particulars of the same is given in the notice at page 30 dated 17.6.1999. Mr. Mangukia has argued that he is ready and willing to remove the offending part of the construction and wants to retain the construction which can be retained as per the building bye law and regulations of the Corporation. According to him unless the Corporation specifically brings to the notice of the petitioners, the portion which can be retainable and the portion which cannot be regularised on payment of penalty, it is not possible for them to know which is the objectionable construction which cannot be regularised by the Corporation. In fact the officers of the Corporation had informed the petitioners that their architect may visit the office of the Municipal Commissioner so that the petitioners can be explained the aforesaid fact. Mr. P.G.Desai also stated that if the engineer or architect of the petitioners present themselves in the office of the Corporation, they can be informed about the same. However, looking to the documents produced on record. I find no substance in the argument of Mr. Mangukia that the construction in question is not offending and that the construction has been made according to the building regulations. Even for such construction, no plan can be sanctioned by the Corporation by allowing the construction in the margin land or if the construction is made, the same is made by utilising more FSI which is available to the petitioner. I, therefore, negative said contention of Mr. Mangukia. However, whatever portion of the construction which can be compoundable even by charging of penalty or fine, the Corporation may regularise that much portion which can be regularised in accordance with the rules and regulation. The Corporation of course has pointed out in the notice that there is a construction in the margin land as well as there is construction in other portion to which Mr. Mangukia denies. As a matter of fact it was the duty of the petitioners to point out all this in response to the notice issued to them by giving necessary explanation in this behalf. This court while sitting in writ jurisdiction cannot say whether the construction is really in the margin land or not. Subject to what is stated above regarding regularisation of the construction which can be regularised as per the bye laws, I see no substance in the argument of Mr. Mangukia to the effect that the construction is not offending. ##. Mr. Desai has also submitted that if the petitioners themselves remove the illegal construction which cannot be regularised, the Corporation has no objection to regularise rest of the part. However, it is submitted by Mr. Mangukia that he is not aware which of the portion can be regularised and which of the portions cannot be regularised even after charging penalty. Therefore, according to Mr. Mangukia at the time of demolition of the construction the Corporation may allow the petitioner to retain that portion which can be regularised as per be bye laws. ##. Mr. Desai relied upon the judgment of the Supreme Court in the case of M.I.Builders Pvt.Ltd. vs. Radhey Shyam Sahu & ors. reported in (1999) 6 SCC 464. The Supreme Court has observed in para 73 of the said judgment that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. The Supreme Court has further observed that a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished.There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. In para 81 the Supreme Court has further observed as under: " A number of cases come to this Court pointing to unauthorised constructions taking place at many places in the country by builders in connivance with the corporation/municipal officials. In a series of cases, this Court has directed demolition of unauthorised constructions. This does not appear to have any salutary effect in cases of unauthorised construction coming to this Court. While directing demolition of unauthorised construction, the court should also direct an enquiry as to how the unauthorised construction came about and to bring the offenders to book. It is not enough to direct demolition of unauthorised construction, where there is clear defiance of law. In the present case, but for the observation of the High Court we would certainly have directed an enquiry to be made as to how the project was conceived and how the agreement dated 4.11.1993 came to be executed." Mr. Desai has also placed reliance on a decision of this court reported in 37(3) GLR 416 where this court has taken the view that injunction cannot be granted against demolition of construction which is illegal. In view of the aforesaid , there is no substance in the submission of Mr. Mangukia. ##. So far as the second argument of Mr. Mangukia regarding the issuance of notice under section 260(1) of the BPMC Act is concerned, it is stated by him that since the area in question is covered under the T.P. Scheme the Corporation has no power to issue such a notice and for that purpose he relied upon a judgment of this court rendered in Appeal from Order which arose from an order passed by the Trial Court below exh.5. The judgment of this Court (Coram: Balia J) was stayed by the Apex Court and subsequently the Apex Court held that the observations of the learned single Judge of this Court were not meant to lay down any law on the question raised in the suit. Aforesaid order of the Apex Court is kept on record. Gujarat Town Planning and Urban Development Act and BPMC Act operate in two separate fields. So far as the the T.P.Scheme is concerned it is mainly concerned with the development of town or city while chapter 15 of the BPMC Act is concerned, it deals with regularisation about the building and every person who intend to erect a building shall submit an application for getting the construction permission in accordance with the building bye laws as per the provisions of BPMC Act and the Commissioner is empowered to reject the application under section 255 of the BPMC Act. Similarly the Commissioner is empowered to demolish the construction which is being carried without approval or sanction and which is contrary to the bye laws. The petitioners had submitted their development plan to the Corporation. The Corporation being the local authority has option therefore, to decide whether to sanction the plan or not. Mr. Desai has also placed on record the particulars about the construction in question which according to him was illegal or contrary to the sanctioned plan. The same is kept on record.It therefore, cannot be said that the Commissioner has no power under section 260(1) of the said Act and therefore, the arguments of Mr. Mangukia deserves to be rejected. The petitioner in fact had not even replied to the notice issued under section 260(1) of the Act and inspite of notice given by the Corporation the petitioners had continued to make further construction. ##. Mr. Mangukia thereafter submitted that no decision is taken for sanctioning the plan within 90 days and therefore, the same is deemed to have been sanctioned. In the affidavit in reply which has been filed in SCA No.10017 of 1999 it has been pointed out in para 11 that the applications for the purpose of developing the land and the plan were rejected by the Corporation on 29.10.99 which was received on behalf of the petitioners by L.K. Savani on the same day and the reasons were also mentioned as to why the same are rejected. Since the petitioners have not even given further particulars, their filed was treated as closed. and a communication to that effect was also given to the petitioners on 19.11.99 and the acknowledgment receipt of which is also produced at Annexure R.4. Thus there is no substance in the submission of Mr. Mangukia that the plan has not been sanctioned within 90 days. However, assuming that there is no decision within 90 days by the competent authority or even within 30 days as the case may be, then also it cannot be said that there is a deemed approval unless the construction in question is to be carried out in consonance with the rules and bye laws of the local authority. If a person submits building plan for making construction which is not permissible as per the building rules, it cannot be said that simply because the local authority has not taken a decision within the stipulated time, the plan for illegal construction also can be said to have been sanctioned by deeming fiction. If a plan is submitted for construction which can be made legally as per the bye laws only qua such construction, the deeming clause will apply and not otherwise. Therefore.it cannot be presumed that simply because the decision is not taken within stipulated time such illegal construction can be allowed to be continued on the ground that the plan is deemed to have been sanctioned. The Apex Court in the case of Calcutta Municipal Corporation and anor. vs. Anil Ratan Banerje & ors. reported in AIR 1995 SC 659 has stated in para 12 as under: " Shri Tapas Ray learned counsel for the municipal Corporation urged the following contentions: 1, That the plan sanctioned on April 27, 1987 for a eight storeyed building lapsed on 26th April 1987 since no construction was made and co mpleted within two years. Indeed no construction was commenced by that date. It is true that on April 16,1987 the respondents applied for renewal of the said plan but there was no provision in the Bengal Municipal Act for granting such renewal. Even assuming that such renewal could be granted and must be deemed to have been granted, such deemed renewal too expired on April 16, 1989 or at any rate on April 26,1989. Admittedly no construction was made much less completed, by the said date. In other words the sanction of the said plan both actual and deemed lapsed by 26th April 1989 respectively. No construction can be permitted on the basis of such plan after the said dates. 2. So far as the deemed sanction of the twelve storeyed building applied for on August 24,1987 is concerned, it cannot be deemed to have been sanctioned on the expiry of thirty days by virtue of Section 319 of the Bengal Municipal Act for the reasons that no such permission could have been actually granted under the law then in force in the said area, having regard to the width of the road abutting the respondents' plot and other relevant circumstances. The Division Bench has itself recognized that the deemed permission cannot be inconsistent with the relevant rules and regulations. No deemed permission can be conceived of which is inconsistent with the relevant rules and regulations. 3. The position today is that the building rules framed in the year 1990(with effect from December 1,1990) are more stringent than the pre-existing rules and regulations. According to these rules the maximum height of a building in respondents' plot cannot exceed eight meters. 4. Both the learned single Judge and the Division Bench erred in not examining the question whether the plan for twelve storeyed building applied for by the respondents on August 24,1987 could at all have been granted in accordance with the law then in force in the said area. This should have been done before granting the declaration that the said plan must be deemed to have been granted and that the respondents are entitled to make construction in accordance therewith. 5. The learned Judges of the High Court were not justified in holding that the municipal authorities were negligent in responding to the respondents' application for permission. It is equally not correct to suggest that the respondents are entitled to an extended period for constructing a building on account of the alleged obstruction by the municipal authorities. Since no construction was ever made, there was no obstruction by the authorities and even if there was such obstruction, it was perfectly valid and justified since the respondents had no authority in law to proceed with the construction." In view of the above it is clear that the deemed permission cannot be inconsistent with the