Hasmukhbhai Khengarbhai Solanki vs State of Gujarat and Others

M.R. Shah, J.—Rule. Ms. Jirga Jhaveri, learned Assistant Government Pleader wavies service of notice of Rule on behalf of Respondent Nos. 1 & 3. Mr. Mehul Rathod, learned advocate waives service of notice of Rule on behalf of Respondent No. 2 and Ms. Neeta Pandit, learned advocate waives service of notice of Rule on behalf of Respondent No. 4.

By way of this petition under Article 226 of the Constitution of India, the Petitioner has prayed for an appropriate writ, order and/or direction, directing Respondent Nos. 1 to 3 to take appropriate action against Respondent No. 4 for making illegal construction on the land in question and consequently to direct Respondent Nos. 1 to 3 to demolish illegal construction made by Respondent No. 4 on the land in question.

It is also further prayed for an appropriate writ, order and/or direction restraining Respondent Nos. 1 to 3 from granting Building Use Permission, from sanctioning the plans post facto and/or regularizing the construction already made by Respondent No. 4 on the land in question.

It is the case on behalf of the Petitioner that Respondent No. 4 has put up absolutely illegal construction on the land in question, which is just adjacent to the land of the Petitioner, illegally and without obtaining any permission from the Competent Authority and without getting the plan sanctioned. It is the case on behalf of the Petitioner that Respondent No. 4 has put up construction illegally despite the stay orders granted by Respondent No. 2 - Nagarpalika. It is also case on behalf of the Petitioner that after issuing two stay orders, no further steps have been taken to remove illegal construction. It is the case on behalf of the Petitioner that despite even a criminal complaint has been filed against Respondent No. 4 in the Court of learned Judicial Magistrate (FC), Dahod being Criminal Case No. 1853/2010, no action has been taken to demolish illegal construction. Thus, Respondent Nos. 1 to 3 have failed to discharge their statutory duties under the Municipalities Act and Town Planning Act and, therefore, it is requested to allow the present petition. By making above submissions, Mr. Pandya, learned advocate appearing on behalf of the Petitioner has requested to allow the present petition.

In response to the Notice issued by this Court, Mr. Mehul Rathod, learned advocate has appeared on behalf of Respondent No. 2 - Chief Officer, Dahod Nagarpalika. An affidavit-in-reply is filed on behalf of Respondent No. 2, affirmed by Chief Officer of the Dahod Nagarpalika dated 02/04/2011. In the said affidavit-in-reply, it is stated that it is true that the Municipality has received a complaint of the Petitioner dated 02/08/2010 for illegal construction being carried out by Respondent No. 4 and immediately the Municipality has carried out site inspection and panchnama was drawn on 04/08/2010 wherein it was found that construction was up to plinth level. It is stated that the then Chief Officer on 10/08/2010 issued stay order upon Respondent No. 4 restraining Respondent No. 4 from putting up further construction as no permission was obtained. It is further stated in the said affidavit-in-reply that after issuance of stay order dated 10/08/2010, another complaint was received by the Municipality on 11/08/2010 pointing out that despite the stay order, construction was carried out by Respondent No. 4 and, therefore, again site inspection was carried out on 13/08/2010 and second panchnama was drawn wherein it was found that the work was completed up to RCC slab. It is further stated that another stay order was issued on 17/08/2010 directing Respondent No. 4 to stay the further construction. It is further submitted that even criminal complaint is filed on 10/09/2010 in the Court of learned Judicial Magistrate (FC), Dahod being Criminal Case No. 1853/2010. It is submitted that pursuant to the directions, further steps are to be taken by the Respondent-Nagarpalika, therefore, it is submitted that it cannot be said that no further steps were taken by the Nagarpalika at all. It is further submitted in the said affidavit-in-reply that on 22/03/2011 the Municipality has issued notice to Respondent No. 4 for removing unauthorized construction within a period of five days from the date of receipt of the notice. It is further submitted that even after expiry of the said period, construction was not removed by the Respondent No. 4 and therefore on 01/04/2011 final notice was issued to the Respondent No. 4 directing him to remove illegal construction within a period of five days from the date of receipt of this notice, failing which, the Municipality will remove the construction on 08/04/2011 at the cost and risk of the Respondent No. 4.

In the Additional Affidavit-in-reply filed on behalf of Respondent No. 2 dtd.15/4/2011, Chief Officer of the Nagarpalika has tried to explain why the notice dtd.01/04/2011 has not been complied with. It is submitted that in fact on 08/04/2011 the Chief Officer and other Officers of the Nagarpalika remained present at the site and for maintenance of law and order situation and for protection of encroachment removal staff, police authority and the Executive Magistrate and Mamlatdar, Dahod were requested to remain present on 08/04/2011 at site. However, they did not remain present due to visit of Her Excellency, the Governor of Gujarat at Dahod on 08/04/2011 and, therefore, necessary Police Bandobast was not given. It is further submitted that on 09/04/2011 and 10/04/2011 there were holidays and till 15/04/2011, all officers were busy in State Programme of celebrating "Janshakti Samaroh" and for the function of "Swarnim Jayanti Samapan Programme".

Mr. Mehul Rathod, learned advocate appearing on behalf of the Respondent No. 2 has stated at the bar that immediately thereafter further steps shall be taken to remove the illegal construction. It is further submitted by Mr. Rathod, learned advocate appearing on behalf of Respondent No. 2 that only on 06/04/2011, Respondent No. 4 submitted application to the Municipality to regularize illegal construction. However, the same was not forwarded in the format and, therefore, the Municipality had raised some queries vide its communication dtd.11/04/2011 and the said application is returned to Respondent No. 4. It is further submitted by Mr. Rathod, learned advocate appearing on behalf of Respondent No. 2 that as such there is no question of regularizing the illegal construction put up by Respondent No. 4 as Respondent No. 4 continued to put up the construction despite the stay orders granted by the Nagarpalika.

Present petition is opposed by Ms. Neeta Pandit, learned advocate appearing on behalf of the Respondent No. 4. Earlier Ms. Brahmbhatt had appeared on behalf of Respondent No. 4 and today when the present petition is taken up for hearing, Ms. Pandit has submitted that now she has instruction to appear on behalf of Respondent No. 4. Ms. Pandit, learned advocate appearing on behalf of Respondent No. 4 has submitted that in fact Respondent No. 4 has submitted application for regularization of construction on 06/04/2011. It is further submitted that earlier application was submitted by the Respondent No. 4 in the month of August, 2010 for regularization of the illegal construction. It is submitted that therefore, no further order is required to be passed in the present petition. It is further submitted by Ms. Pandit, learned advocate appearing on behalf of Respondent No. 4 that after stay order is passed, no further construction has been made by Respondent No. 4. It is further submitted that at the relevant time when the stay order was issued, construction work was already completed and only plastering and finishing work were to be done, which is completed and done by the Respondent No. 4, after the aforesaid stay order. Therefore, it is submitted that it is not true and correct that after the stay order the Respondent No. 4 has made further construction. Therefore, it is submitted that now the application of the Respondent No. 4 for regularization of the construction is submitted and hence it is requested not to pass any further order in the present petition. No other submissions have been made.

Having heard the learned advocate appearing on behalf of the respective parties, it appears that Respondent No. 4 has put up absolutely illegal and unauthorized construction without obtaining any prior permission and even getting plans sanctioned. It also appears that even after the stay orders were granted by the Chief Officer of the Nagarpalika, Respondent No. 4 has continued to put up the construction, as if there is no Rule of law and order and he is not bound by any stay order or law. It is to be noted that when the first panchnama was prepared on 04/08/2010 it was found that construction was up to plinth level and stay order was granted on 10/08/2010. Thereafter another complaint was made pointing out that despite the stay order dtd.10/08/2010, Respondent No. 4 continued to put up the illegal construction and thereafter, again second panchnama was drawn on 13/08/2010 wherein it was found that construction was completed up to RCC slab. Thus, contention on behalf of the Respondent No. 4 that when stay order was granted thereafter no further construction was made after stay order, cannot be accepted. The construction up to RCC slab was found in the second panchnama and when the first panchnama was drawn, construction was up to plinth level. Despite of stay order, Respondent No. 4 continued to put up the construction. Not only that, even after the second stay order the Respondent No. 4 continued with the construction work and even as admitted by Respondent No. 4, thereafter the work of plastering, finishing, etc. have been made, which according to Respondent No. 4, cannot be said to be further construction. The aforesaid cannot be accepted. Plastering is also part of construction work and, therefore, contention on behalf of Respondent No. 4 that after second stay order, there was no further construction and plastering and finishing work were done and, therefore, there is no breach of the second stay order, cannot be accepted. Despite the aforesaid two stay orders, Respondent No. 4 continued to put up the illegal construction. It is required to be noted that thereafter Nagarpalika has also filed criminal complaint against the Respondent No. 4 for such an illegal construction.

Now, so far as the contention on behalf of Respondent No. 4 that now the Respondent No. 4 has already submitted application for regularization and, therefore, no further order in the present petition is required to be passed is concerned, the same cannot be accepted. It is to be noted that such an application has been submitted on 06/04/2011 only, which is nothing but afterthought to avoid any further order passed by this Court in the present proceedings. It is to be noted that this Court issued Notice in the present proceedings on 10/03/2011 making it returnable on 28/03/2011 and Respondent No. 4 has been served with the notice of this Court on 22/03/2011 and, thereafter, matter was adjourned twice and thereafter it was adjourned to 01/04/2011. The learned advocate appearing on behalf of the Respondent No. 4 appeared on 01/04/2011 and thereafter the matter was adjourned to 04/04/2011. Even till then no such application was submitted by the Respondent No. 4 and subsequently when the matter was heard for some time and the matter was adjourned so as to enable the Nagarpalika to file further Affidavit-in-reply, the aforesaid application for regularization has been submitted by Respondent No. 4. Merely because Respondent No. 4 has submitted application for regularization subsequently with malafide intention and to avoid further orders passed by this Court in the present proceedings, request on behalf of Respondent No. 4 not to pass any further order in the present proceedings, cannot be accepted and granted.

Even otherwise, it is to be noted that application dated 06/04/2011 has been returned to Respondent No. 4 with some queries. Mr. Mehul Rathod, learned advocate appearing on behalf of Respondent No. 2 has categorically submitted that there is no question of regularization of illegal construction made by Respondent No. 4, as Respondent No. 4 has continued to put up the construction after two stay orders. Therefore, there is no question of regularization of illegal construction put up by Respondent No. 4.

In view of the above and for the reasons stated above, the petition succeeds and concerned Respondents more particularly Respondent No. 2 is directed to perform his statutory duties and act as stated in the Affidavit in Replies, referred to hereinabove and to remove illegal construction made by Respondent No. 4 at the earliest, after following due procedure as required under the law, which has already been followed as stated hereinabove. Rule is made absolute to the aforesaid extent. No costs. D.S. permitted.