Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= SMT.
JYOTSANABEN C PATEL - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance :
MR AJ PATEL for Petitioner(s) : 1,1.2.1 MS SHRUTI PATHAK AGP for Respondent(s) : 1 - 2.
========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 12/03/2012 CAV JUDGMENT (Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this Special Civil application, the writ-petitioner has challenged an order dated June 5, 1996 passed by the Deputy Secretary (Appeals), Revenue Department, Government of Gujarat, by which the said authority rejected the revisional application preferred by the writ-petitioner against an order dated November 13, 1992 passed by the respondent No.2 directing removal of construction under Section 66 of the Bombay Land Revenue Code ("Code").
2. Being dissatisfied, the writ-petitioner has come up with the present application under Article 226 of the Constitution of India.
3. The facts giving rise to the filing of this application may be summed up thus :-
3.1 The petitioner owned and possessed land bearing Sub-plot Nos.3 and 4 of Final Plot No.476 of Town Planning Scheme No.2 of Anand. The said Town Planning Scheme was finalized before the year 1985. On finalization of the scheme, the petitioner made an application to the Anand Area Development Authority ("AADA") for granting development permission under Section 29 of the Gujarat Town Planning and Urban Development Act, 1976 ("Act").
3.2 The AADA, after examining the proposal, granted development permission by an order dated May 7, 1985 thereby permitting the petitioner to construct in accordance with the plan submitted.
3.3 As some changes were required to be made in the proposed construction of the buildings, the petitioner made an application for revision of the development permission and after examining various aspects, the AADA granted revised development permission on April 29, 1986. In the said permission, however, it was further written that the revised permission was granted for construction subject to the responsibility of obtaining approval of the Revenue Department at the instance of the petitioner.
3.4 On October 16, 1989, the respondent No.2 issued a show cause notice upon the petitioner under Section 66 of the Code as to why the construction put up by the petitioner should not be removed.
3.5 The petitioner submitted his explanation to the show cause notice thereby pointing out that the construction put up by him was in accordance with the development permission granted by the AADA and thus, there was no violation on the part of the petitioner. The respondent No.2, however, by order dated May 21, 1991 directed removal of the construction put up by the petitioner.
3.6 Being dissatisfied with the said order passed by the respondent No.2, the petitioner preferred a Revisional Application being No.11 of 1991 before the State-respondent and, ultimately, the State-respondent by its order dated December 11, 1991 partly allowed the said revisional application by setting aside the order passed by the respondent No.2 and remanding the matter back to the Collector for a fresh decision. In the said order, the State-respondent indicated that if there was any technical breach, it might by regularized by requiring the petitioner to pay penalty. Later, on June 9, 1992, the AADA issued completion certificate in respect of the buildings constructed by the petitioner.
3.7 Subsequently, however, as the petitioner did not obtain "no objection" endorsement, by order dated November 13, 1992, the respondent No.2 directed removal of the construction under Section 66 of the Code.
3.8 Being dissatisfied, the petitioner preferred a fresh revisional application before the State Government and by the order impugned herein, the said revisional authority has dismissed the revisional application by affirming the order of removal of construction.
4. Being dissatisfied, the writ-petitioner has come up with the present application under Article 226 of the Constitution of India.
5. This writ-application initially came up for hearing before a learned Single Judge of this Court and His Lordship by order dated March 30, 2007 referred the matter to the Division Bench as His Lordship was unable to agree with the decision of another learned Single Judge of this Court in the case of Karimbhai Kalubhai Belim & Ors. Vs. State of Gujarat & Anr. reported in 1996 (1) GLR 659 on the similar point involved therein.
6. Hence, the matter has come up before this Bench for disposal.
7. Mr Patel, learned counsel appearing on behalf of the petitioner, placed a strong reliance upon Section 117 of the Act and submitted that once permission under the Act is granted by the competent authority for development, notwithstanding anything contained in any other law for the time being in force, such development should not be deemed to be unlawfully taken. According to Mr Patel, Section 117 of the Town Planning Act has overriding effect over other provisions of law or other Statutes and as such, the permission under Section 65 of the Code was not required and consequently, the Collector committed substantial error in directing demolition. Mr Patel placed strong reliance upon decisions of two learned Single Judges of this Court, one in the case of Karimbhai Kalubhai Belim & Ors. Vs. State of Gujarat & Anr. reported in 1996 (1) GLR 659 and the other, in the case of Motiben Somaji & Ors. Vs. State of Gujarat & Anr. reported in 1996 (2) GLR
286. Mr Patel further placed strong reliance upon a Division Bench decision of this Court in the case of Collector vs. Triveni Park Cooperative Housing Ltd., in Letters Patent Appeal No.205 of 1999 decided on December 17, 2003 in which the said Division Bench has approved the judgment of Karimbhai Kalubhai Belim (supra). According to Mr Patel, in view of the above Division bench decision, the order passed by the Collector directing demolition was patently illegal and there was no justification of referring the matter before a Division Bench.
8. Ms Pathak, the learned Assistant Government Pleader appearing on behalf of the State of Gujarat, however, has opposed the aforesaid contention of Mr Patel and has contended that Section 117 may have overriding effect in view of non-obstante clause over the provision of the other Statutes but the same should be subject to Section 29 of the Act. According to Ms Pathak, in the case before us, the permission under Section 29 of the Act was a conditional one, which was subject to the approval of revenue authority, and thus, so long the petitioner did not comply with the said condition, he could not get the benefit of the overriding effect of Section 117 of the Act. Ms Pathak, therefore, prays for dismissal of the present writ-application.
9. In order to appreciate the aforesaid question involved in this application, it will be appropriate to refer to the provisions contained in Section 29 and Section 117 of the Act which are quoted below :-
"29. Grant or refusal of permission.
(1) On receipt of an application under Section 27 or Section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge (and scrutiny fee) if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing --
(i) grant the permission with or without any condition; or
(ii) grant the permission, subject to any general or special orders made by the State Government in this behalf; or
(iii) refuse to grant the permission.
Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal.
Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.
If the appropriate authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.
If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of Section 27 or Section 28 or of any permission granted under sub-section (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use.
Any expenses incurred by the appropriate authority under sub-section (5) shall be a sum due to the appropriate authority under this Act from the person in default.
Effect of other laws.
Notwithstanding anything contained in any other law for the time being in force -
when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;
when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
(Emphasis supplied).
10. At this stage, it may not be out place to mention here that although sub-section (a) has been subsequently deleted, in the case before us, at the relevant point of time, the said sub-section (a) was very much subsisting and as such, the petitioner should get the benefit of sub-section (a) of Section 117, if available.
11. A plain reading of Section 29 of the Act makes it abundantly clear that permission under Section 29 of the Act may be with or without any condition. However, as laid down in sub-section (2), in case any permission is granted subject to condition, the appropriate authority shall state the grounds for imposing such condition.
12. In the case before us, the authority by its order dated April 28, 1986 granted permission to the petitioner for making construction as per revised plan subject, however, to the responsibility of obtaining approval of the Revenue Department resting finally with the applicant. Therefore, on the face of it, while granting such permission, a conditional clause is added which casts a responsibility upon the applicant to obtain approval of Revenue Department. However, no ground has been assigned why such condition has been imposed.
13. After hearing the learned counsel for the parties and after going through the provisions contained in Section 29 of the Act, we are of the firm view that the condition that has been imposed in this case, as indicated above, was not a lawful condition within the meaning of Section 29(1) of the Act. The reason being that (i) no ground was assigned why such condition was imposed as required under sub-section (2) of section 29 ; and (ii) in order to impose any condition in terms of Section 29(1), the authority vested with the power to grant permission must have the lawful right to impose such condition on consideration of the requirement of the Act; but if the authority while granting permission makes a general observation that the applicant should take some other permission which is required under other law over which the authority under Section 29(1) had no power to investigate, such imposition of condition cannot be said to be one under Section 29(1) the Act. Even such imposition of condition to take permission under other Statute was contrary to the provision contained in Section 117(a) of the Act as it stood at that point of time because the law itself specified that once permission was given under the Act, no other permission was required to be taken under any other law.
14. We, therefore, find substance in the contention of Mr. Patel, the learned counsel appearing for the petitioner, that the aforesaid imposition of condition was not one within the scope of Section 29(1) of the Act but was a general observation which was on the face of it contrary to the provisions of Section 117(a) of the Act.
15. We find that the view taken by the learned Single Judge in the case of Karimbhai Kalubhai Belim & Ors. Vs. State of Gujarat & Anr. reported in 1996 (1) GLR 659 is the correct approach and a Division bench of this Court in the case of Collector vs. Triveni Park Cooperative Housing Society Ltd. in Letters Patent Appeal No.205 of 1999 has specifically approved the aforesaid view taken in the case of Karimbhai Kalubhai Belim (supra).
16. On consideration of the entire materials on record, we, therefore, hold that in this case, once permission has been granted under Section 29(1) of the Act, in view of the then provision of Section 117(a) of the Act, there was no necessity of taking permission under any other authority and the so-called condition imposed in the revised order under Section 29(1) of the Act was not a condition lawfully imposed under Section 29(1) of the Act, it being not supported by any reason, disclosure of which was mandatory under Section 29(2) of the Act and at the same time, beyond the power of investigation of an authority under the Act; thus, the same should be ignored.
17. The Special Civil Application consequently succeeds. The orders passed by the authorities below being Annexures 'I' and 'K' to this writ-application are set aside. In the facts of the present case, we hold that N.A. endorsement was not required to be taken by the petitioner in view of the provisions contained in Section 117(a) of the Act. In the facts and circumstances, there will be no order as to costs.
(BHASKAR BHATTACHARYA, ACTING CJ.) (J.B.
PARDIWALA, J.) zgs/-
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