1. Leave to amend so as to add Municipal Corporation as party respondent No.3. The amendment to be carried out forthwith.
2. Heard Ms. Reena Hemani, learned advocate for Mr. P.H. Pathak, learned advocate for the petitioner.
3. The petitioner has taken out present petition seeking below mentioned relief and directions:-
"12.
(A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and / or certiorari, or other appropriate writ, order or direction, declaring the inaction on part of respondent No.1 to take steps in accordance with law as per report submitted by the District Registrar to punish concerned owner of the association and be pleased to direct respondent No.1 to take immediate steps against the builder and further direct to recover amount which was misappropriated and misused by the respondent No.3.
(B) Be pleased to declare that respondent Nos. 1 and 2 have failed to discharge their duties to take prompt actions against the builder i.e. respondent No.3 and report compliance before this Court.
(C).......
(D)......"
4. The petitioner has alleged that plans of scheme of flats in the name and style of "Siddheshwar Apartment", by Siddheshwar Owners Association, Non Trading Corporation (NTC for short) was approved by the Corporation.
5. It is alleged that the builder / developer of the said scheme of residential flats has committed certain irregularities in constructing the flats. One of the irregularities which is alleged by the petitioner is that as against the approved and sanction plan of 8 flats the builder has constructed 14 flats in violation of the approved plan. Other irregularities are also alleged by the builder. The petitioner is one of the persons who have purchased flat in the said scheme. Now the petitioner has approached this Court seeking above mentioned relief and directions.
6. In support of the request the petitioner, in the petition, inter alia, stated that:-
"2.
That after petitioner had purchased said flat scheme in the years 2000 it was 8 flats scheme that but 14 flats were constructed overlooking sanctioned scheme by AUDA in the year 1998. That about 1 & ½ years thereafter, it was found that builder had committed various irregularities and he has not maintained accounts, etc. Time and again, members of the association have inquired from him about the accounts and further details. Therefore, he has left the scheme without informing anybody and without handing over to records of NTC. It has resulted into great hardship to the flat owners.
3. It is submitted that large scale irregularities were committed by the builder Mr. Rameshbhai Popatbhai Patel. That on finding irregularities committed by the builder, petitioner had addressed a complaint dated 18.7.2006 pointing out to the Registrar the violation of provisions of law and by misguiding poor citizens, builder had committed fraud. Copy of the complaint dated 18.7.2006 addressed to respondent No.2 by petitioner is annexed and marked as Annexure-A to this petition.
4. That joint Sales Tax Commissioner had addressed a letter dated 15.1.2007 seeking permission to prosecute. That Registrar has vide his letter dated 11/24.1.2008 addressed a letter to Addl. Secretary, office of the respondent No.1 asking for permission to inquire into the case of Siddheshwar Owners Association U/s. 63 of NTC Act. Copy of letter dated 11/24.1.2008 is annexed and marked as Annexure-B to this petition. That copy of the said letter was forwarded to the petitioner.
5. That petitioner had time and again inquired about progress in the matter for initiating action against the persons who had committed various illegality. No fruitful result was available. Therefore, petitioner was constrained to address reminder dated 24.12.2008 to the office of the Registrar NTC and Joint Sales Tax Commissioner for prompt action at Govt. end. Copy of letter dated 24.12.2008 is annexed and marked as Annexure-C to this petition.
6. That petitioner has not received any further details, petitioner has addressed a letter dated 24.12.2008 under RTI Act to Dy. Secretary of the office of the respondent No.1. Copy of letter dated 24.12.2008 addressed to the office of respondent No.1 is annexed and marked as Annexure-D to this petition but till date no further action taken nor petitioner is informed why there is delay in discharging statutory duties.
7. That registrar has informed petitioner vide letter dated 6/7.11.2009 that for investigation U/s. 63, Govt. has accorded permission. That registrar was pleased to inform Sales Tax Officer-1, to submit report about irregularities committed by the builder. Copy of letter dated 6/7.11.2009 is annexed and marked as Annexure-E to this petition.
8. That it is submitted that registrar, without informing progress in the matter referred above, has addressed a letter to the petitioner dated 21.6.2010 that action will be initiated in reference to pending inquiry. Copy of letter dated 21.6.2010 is annexed and marked as Annexure-F to this petition. That Jt. Sales Tax Commissioner vide letter dated 26.11.2010 pointed out to the Sales Tax Officer, Ward 8, Ahmedabad that he has not received any report as it was to be produced within 3 months. Prompt actions are required to be taken. Copy of letter dated 26.11.2010 by Jt. Sales Tax Commissioner to Yashodhar Raval, Sales Tax Officer is annexed and marked as Annexure-G to this petition but till date, no further action taken nor petitioner informed why there is delay in discharging statutory duties."
7. After considering the allegation by the petitioner the Court (coram: Hon'ble Mr. Justice S.R. Brahmbhatt) by order dated 24.4.2012 had directed the office to issue Notice making it returnable on 15.6.2012. Today Mr. Rohan Yagnik, learned AGP has appeared for the respondent Nos. 1 and 2. Learned AGP on the basis of the instruction received from Mr. Y.M. Raval, Commercial Tax Officer (I), Unit-8, Ahmedabad, the officers of respondent No.2 who is preset in the Court has submitted that inquiry under provisions of Section 63 of Payment of Non Trading Corporation ('NTC' for short) is already initiated and report is awaited.
8. So far as the petitioner's allegation about irregularities in not maintaining accounts and such other irregularities are concerned the said dispute is between the flat owners and the developer / builder. The said dispute cannot be examined in present proceeding. If at all the petitioner and other members of the scheme have any grievance against builder / developer then such dispute can be redressed before appropriate forum and the petitioner and the other members may take appropriate proceedings and raise their dispute and get it redressed / adjudicated.
8.1 So far as the alleged irregularities in construction of flats and violation of approved plan are concerned, learned AGP has, submitted, on instruction from the officer of respondent No.2, that inquiry has already been initiated and report is awaited.
9. In view of the said submission by the learned AGP it is appropriate to dispose of present at this stage with below mentioned directions.
(A) The respondent No.2 and the newly added respondent No.3 i.e. Municipal Corporation will take up the complaint and allegation made by the petitioner and other members of the aforesaid scheme for appropriate action.
(B) The respondent No.2 and newly added respondent No.3 will conduct inquiry as to whether any illegality and / or irregularity have been committed in construction of the aforesaid scheme and any provision under the Bombay Provincial Municipal Corporation Act, 1949 ('BPMC' for short) and / or any Rules and Regulations of General Development Control Regulations ('GDCR' for short) and / or the condition prescribed by Ahmedabad Urban Development Authority ('AUDA' for short) or the Corporation have been violated.
(C) If even a slight irregularity or violation of any provision including breach / violation of approved plan is noticed then the respondent No.2 and / or respondent No.3 will take necessary steps including demolition of illegal construction.
(D) Appropriate proceedings and action shall also be taken against the officers who did not take any action and issued Building use permission.
(E) The said respondent Nos. 2 and 3 will also ascertain the responsibility for such alleged violation and / or commission of irregularities and initiate appropriate proceedings including criminal proceeding against the persons responsible for committing irregularities and / or violation of applicable Rules and Provisions.
(F) The inquiry into the complaint by the members by respondent Nos. 2 and 3 will have to be completed by competent authority within period of two weeks from the service of certified copy of present order and upon conclusion of such inquiry the authority will commence necessary proceeding including criminal proceeding against the responsible persons for irregularities or violation, if any, and also take all other necessary and appropriate action as required by law and applicable Act and Rules.
(G) The report of the inquiry to be conducted by competent authority including the inquiry which is said to have been commenced under Section 33 of the NTC Act shall be placed on record by competent authority, through learned AGP. Though the petition is disposed of with aforesaid clarification the report shall be placed on record of the petition by preferring appropriate application.
With the aforesaid clarification present petition is disposed of.
(K.M.THAKER,J.) Suresh* Top