TMI Blog2000 (6) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Corporation from demolishing the construction put up in the land bearing Survey Nos. 470/1 and 472 of Katargam, Taluka: Chdryasi, District Surat. 3. In Special Civil Application No. 10017 of 1999 the petitioners invoked the jurisdiction of this Court under Article 226 of the Constitution of India and prayed for issuance of writ in the nature of mandamus or any other appropriate writ, order or direction declaring that the order passed by the respondent Corporation on 19-11-1999 and the order, if any, passed on 29-10-1999 in respect of the land bearing Survey No. 470/1 and 472 of village Katargam (to be precise plot Nos. 45, 46, 47, 48 and 49 of Keshavpark, Ved Road, Surat) are illegal and in violation of Section 29 of the Gujarat Town Planning and Urban Development Act, 1976 and further prayed to quash and set aside the order dated 19-11-1999 and any order passed on 29-10-1999 rejecting the development plan submitted by the petitioners on 7-8-1999 in respect of the aforesaid lands. 4. Suffice it to say that the dispute between the parties is whether the construction work carried out by the petitioners is in accordance with law or not. Before the learned single Judge only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land and the officers of the State Government who were responsible to look after the procedure under the Repealed Act to achieve the object of the Act. 7. The petitioners have come out with the version that they were allotted sub-plot Nos. 45, 46, 47, 48 and 49. All the plot holders decided to develop the plot jointly. It is averred in the petition that in good faith they started to construct over the land within the permissible bye-laws of the respondent Municipal Corporation. They have not stated that any permission was obtained from the competent authority for constructing residential building on the aforesaid sub-plots. Naturally, as the petitioners commenced the construction work illegally, the respondent Corporation initiated proceedings. The Officers of the Corporation visited the site for the purpose of demolition. The petitioners have averred in the petition that no offending construction was being carried out as the permission was originally granted by the respondent Corporation. It appears that the petitioners were of the view that they were not required to take any permission for construction. Commencement of construction work is sought to be suggested as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plan was sanctioned they can develop the said land. Despite the fact that the application was submitted the Corporation was trying to demolish the premises put up on the said lands and hence the petitioners were constrained to approach this Court by filing Special Civil Application Nos. 6982 of 1999 on 12-9-1999. The order passed by the Court at initial stage reads as under :-- Coram : M. S. Shah, J. (13-9-1999). Notice returnable on 27th September, 1999. Till then status quo regarding the construction on the site as on today. The petitioner shall file an affidavit along with the photographs showing the construction as on today within week from today. D. S. is permitted, today. 10. It appears that the learned Judge with a view to see that there is no further construction, directed the petitioners to file an affidavit along with photographs showing the construction as on 13-9-1999. Even direct service was permitted to be effected on the same day. It is interesting to note that the petitioners have averred that service of the notice was lately effected for the reasons beyond their control. No explanation is rendered in the petition as to why service could not be ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent-Corporation that they shall not carry out further construction. By way of assurance, cheque was given by the petitioners and there is nothing to disbelieve the version of the respondent Officers in this behalf. 12. The petitioners have averred in the petition that on the returnable date, the petitioners were required to file an affidavit and were required to place photographs of the construction on the record of the petition but the same was not done. An explanation is given that the petitioner who was handling the matter was away. If all the petitioners filed a petition jointly then all were and are required to act as per the order of the Court. Order binds them all. Once by filing a petition the petitioners have obtained orders, it was the duty of each of the petitioners to see that the order is carried out in its true spirit. It is nowhere stated as to when the petitioner who was looking after the matter, went out of the Surat District, on what date the mother expired and on what date he came back from his native place. These are vague averments with a view to avoid the responsibilities. The process was intentionally not served because the petitioners wante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sections 253, 254 of the Act. Section 253 refers to notice to be given to the Commissioner to erect building. 14. With regard to application, the Officer of the respondent-Corporation has stated that the application was tendered under the provisions of Section 253 and Section 254 of the Act and under Sections 27, 34, 49 of the Gujarat Town Planning and Urban Development Act on 7-8-1999. The said application was accompanied by a certificate of the Supervision indicating that one Mr. L. K. Savani shall carry out construction and all correspondence should be communicated to their Engineer, Mr. L. K. Savani. On 7-8-1999 plans along with application were submitted with the signatures of the petitioners as well as their Engineer, Mr. L. K. Savani. On record, at page 51 application is placed wherein the applicants have indicated their address for correspondence as C/o. Savani L. K., G/1 Pardesi Park II, Desai Falia, Katargam. At page 58, the respondents have placed on record a letter addressed by the petitioners to the respondent-Corporation inter alia pointing out that Mr. L. K. Savani has been appointed as the Architect/Engineer. The entire correspondence should be with the said E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k and column were demolished. The petitioners very well knew that the Corporation has demolished unauthorised construction and they cannot commence construction yet they commenced construction work and they completed four storeys of the building. Even on 26-10-1999 authorisation was issued under Section 387 which was served on the petitioners for demolition of illegal construction. Certain part of the building, namely, of fourth floor was demolished i.e. RCC slab and parapet wall of surrounding terrace of the fourth floor. As pointed out by the respondent under the guise of the order passed by the Court, the petitioners continued with illegal construction and flouted the order of the Court. It is pointed out by the respondent that the petitioners are not entitled to the reliefs which are discretionary in the nature. 17. It is in this background that the present L. P. A.s are to be considered. Learned single Judge has appreciated the material placed on record. The learned single Judge arrived at a conclusion that despite the repeated calls the petitioners did not bother to act in accordance with law and hence demolition work started on 7-7-1999. The petitioners constructed four f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort clearly reveals that without permission/sanction of the Surat Municipal Corporation and without getting sanction for the consolidation of plots in accordance with the Approved Development Regulation Rule 11.1.4, construction work was carried out. What is found on spot is shortly narrated as under :-- Encroachment of width of 1.5 mt. and 25.60 mt. height - on the road of the width of 9.14 mt. is in violation of Regulation Rule 11.1.4.1 Encroachment of the width of 2 mt. on the northern side margin - 2.56 mt. width towards southern side and 15.60 mt. height - all in violation of Rule 16.1.2. 70% of built up work of the height of 3.60 mt. by consolidating five plots - making encroachment by construction on open space, margin, road exceeding 100% area is required to be demolished. By committing breach of Rule 11.6.1 (pertaining to FSI which allows 1.2 FSI) ground floor plus four floors have been constructed by using five FSI. There is illegal construction of 3.16 mt. width in average . There is projection of 2.84 mt. on eastern side and of 62 cm. on the southern side. On 28-2-2000, only slab concrete of the terrace and parapet wall were removed. However, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission is granted. In the report it is pointed out that Raja Chitty bearing No. TDO No. 117 dated 26-4-1991 was issued for construction as per the Low Cost Housing Rules as per Rule 16 of the Development Control Regulations. The permission was granted for the area of 9.14 metres x 3.96 metres of the ground floor by leaving separate different spaces. At the cost of repetition, we are again pointing out that in petition petitioners have averred in para 3.7 that ... no offending construction was being carried out and that permission was originally granted by the respondent Corporation. ... and have averred in para 3.9 that the petitioners were under bona fide impression that earlier plan was sanctioned by the respondent-Corporation and, therefore, the petitioners can develop the said land . Thus, petitioners have come out with the case that they commenced the construction of a building as per old plan. So far as the new plan is concerned, the same being not sanctioned, under the shelter of deemed permission, petitioners could not have erected a building in breach of building regulations. In the property bearing subplot No. 45 to 49 of the aforesaid sanctioned plan, illegal cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is raised making allegations against the Officers of the Corporation which is required to be rejected. 25. The learned Advocate submitted before the learned single Judge that the petitioners were ready and willing to remove the construction which is not as per the Building bye-laws. He submitted before the learned single Judge that unless the Corporation specifically brings to the notice of the petitioners as to the portion that could be regularised and the portion that cannot be regularised on payment of penalty, it is not possible for them to know which is the objectionable construction and therefore cannot be regularised by the Corporation. On behalf of the Corporation it has been pointed out before us that except the first floor remaining portion is required to be demolished and with regard to the margins excess area covered is also required to be demolished. Learned single Judge also expressed an opinion that the Corporation may regularise such portion which can be regularised in accordance with Rules and Regulations. Before us it was reiterated by the respondent Corporation that if the petitioners are removing the illegal construction which cannot be regularised, the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en necessary, changes are made in it. The builders and plot-holders with the connivance of the staff/Officers of the Corporation, go on erecting buildings in clear violations of the provisions of the Building Regulations. 26. Before the learned single Judge decision in the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464 : (AIR 1999 SC 2468) was pressed into service and there is no reason why the same principle should not be made applicable in the present case. 27. Learned counsel submitted that application was submitted on 7-8-1999 and if there was no communication within a period of one month then the application is deemed to have been granted. It is submitted on behalf of the petitioners before us that the Corporation has come out with concocted version that the application was rejected. It is averred in the petition that if the application was rejected on 26-10-1999, then why the Corporation did not take any action till November 1999. Affidavit of Engineer Mr. L. K. Savani is filed with a view to indicate that he has not been served with any letter dated 29-10-1999. He has stated that as the original was not given to him, he is not in a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation or a fraudulent statement contained in the notice for erection, addition or alteration, or information which is furnished under Section 253 or 254 or even further information if furnished is found to be based on misrepresentation or fraud, the powers can be exercised. The legislature has empowered the Commissioner to inspect at any time during the erection of a building or the execution of any such work without giving prior notice of his intention to do so. Section 260 provides the initiation of proceedings in respect of building or work commenced contrary to the rules or bye-laws. 29. So far as the deemed permission is concerned. Rule 3 of Chapter XII of Appendix IV of the Act is required to be perused which reads as under :-- Rule 3 When building or work may be proceeded with -- If within thirty days after receipt of any notice under Section 253 or 254 or further information, if any, called for under Rule 1, the Commissioner does not issue an order under Sub-rule (1) or Sub-rule (2) of Rule 5 or fails to intimate in writing to the person who has given the said notice his disapproval of the building which the said person proposes to erect, or of the work which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the plan approved and the officer of the Corporation is informed in writing as per law/bye-laws or rules and officer of the Corporation has visited the site and has found everything as per the plan and no intimation is given either for approval or rejection and the owner/ builder has constructed as per the plan, one can say that the BU Permission is deemed to have been granted, but not otherwise. 31. The builder/owner/occupier of a building knows about the plan and provision made therein and if he constructs in contravention of the plan approved, then he is a wrong doer and even if BU Permission is not granted because of connivance or negligence of the Municipal Officer, shelter of deeming provision cannot be sought by a wrong doer. 32. From the evidence placed before us by the petitioners in form of photograph it is very clear that the building is put to use. During submission learned counsel also stated that it would be difficult for the occupiers to find suitable accommodation if the building is required to be demolished. Persons who are carrying out construction must know about the provisions contained in the Act, Rules, bye-laws, regulations and Standing Orders, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a flagrant violation of these provisions. No notice has been given and yet we find that persons have occupied the building. This speaks volume about the intention of the petitioners. The Court while exercising jurisdiction under Article 226 of the Constitution of India has to bear in mind that persons who are coming to the Court with clean hands and those who have acted in accordance with law are required to be assisted and not the persons who are committing breach of provisions of law. 34. The Apex Court in the case of Calcutta Municipal Corporation v. Anil Ratan Banerjee, reported in AIR 1995 SC 659 considered the submissions made by the learned counsel for the Municipal Corporation which is at para 12. The relevant portion is reproduced as under :-- Para 12. Shri Tapas Ray, learned counsel for the Municipal Corporation, urged the following contentions : 1. That the plan sanctioned on April 27, 1985 for a eight storeyed building lapsed on 26th April, 1987 since no construction was made and completed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the provisions of the rules or bye-laws, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under Section 264, shall (2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. 36. Thus, it goes without saying that deemed permission means that a person is erecting building after the expiry of the period mentioned in Rule 3 strictly in accordance with Rules, bye-laws etc. It is required to be emphasised here that when a person moves the Commissioner for permission of erection of a building, the person concerned knows the Rules and Regulations and Bye-laws with regard to Building Regulations. It is for him to carry out the construction as per the Building Regulations and Bye-laws and particularly keeping in mind the FSI. The person who constructs the building as per the Rules and Regulations can say that he has constructed the building as per the requirement of law but not otherwise. The dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive allottees of the shops to exercise judicial discretion in moulding the relief. Such 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. 38. In the result, we find no substance with regard to mala fide alleged by the petitioners. The petitioners have not come with clean hands before this Court and they do not deserve any assistance from the Court. In what we have indicated above, we find no substance in the appeals. 39. As the building is erected without the requisite permission of the respondent we directed the respondent to withhold the essential supplies and we also direct Surat Electri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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