PRATAP V SONI Vs. GANDHIDHAM DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) In this petition under Art.226 of the Constitution, the petitioner who is an occupant of a structure standing on a plot bearing No. BBZ-N2 of Gandhidham, has challenged the order passed by the Board of Appeal under S.19 of the Gandhidham (Development and Control on Erection of Buildings) Act, 1957, hereinafter referred to as 'the Gandhidham Act'. As the said Board has passed the order deciding the lis between the parties in a quasi-judicial manner, even though the said Board is not deemed to be a civil court, its decision will be amenable to the jurisdiction of this court under Art.227 of the Constitution. This petition is, therefore, treated to be one under Art.227 thereof and is being disposed of accordingly. The respondents to this petition are, the Gandhidham Development Authority which is joined as respondent No. 1 and respondents Nos. 2 and 3 who are the owner of the house property bearing No. BBZ-N-2, and the Board of Appeal respectively.

(2.) It is necessary to briefly glance through the relevant facts leading to the present proceedings. According to the petitioner, he is occupying the property which is a garage within the local limits of Gandhidham town, since 1957. He is carrying on business of repairing motor cars, trucks etc. in the said garage.

(3.) It was the case of the first respondent authority that in the year 1961 somewhere between 16-11-1961 and 24-11-1961, the petitioner or someone else constructed without permission a compound wall on the land in question which in those days was owned by one Keshavdas Kishandev Bhatia. The first respondent alleged that the compound wall was constructed on the said land without previous permission of the first respondent under S.7 of the Gandhidham Act, and hence it was an unauthorised construction. According to the case of the first respondent, a Khalasi made a report that unauthorised construction was going on, on the said plot of land. On receipt of the said report, it was alleged that one Kuisagri Raman visited the said plot of land and made notes of inspection. It is necessary to note at this stage that the unauthorised construction complained of in 1961 was construction of compound wall and not the garage as a whole, which is now the subject-matter of bitter controversy between the parties. It appears that though the said report was made in 1961, no steps were taken by the first respondent for demolishing the said structure consisting of compound wall. It transpires from the record of the case that the first respondent itself found that no previous permission of respondent No. 1 was required for putting up compound walls which were originally 2' X 8" in height and which were then raised by 3' more, i.e. up to 5'-8". Therefore, the compound walls were permitted to stay and the chapter was treated as closed. However, it appears that somewhere in the year 1970, present respondent No. 2, purchased this plot of land on which a residential house as well as the disputed garage were standing. He addressed a letter to the Secretary, respondent No. 1 authority on 9-5-1970 intimating the first respondent that he had purchased the house bearing No. BBZ-N2, Gandhidham from its original owner Gagandas of Bombay and had got a registered sale deed in his favour. He further stated that the petitioner was running a garage in the front verandah of the said house and that he was doing it unauthorisedly and was carrying on the said business without his consent. He, therefore, requested respondent No. 1 authority to institute suitable proceedings against the petitioner for dismantling the said garage being unauthorised business in a residential premises. Respondent No. 2 similarly wrote to the District Judge, Bhuj on 9-10-1970 intimating the District Judge that the petitioner had made alteration and addition in his house No. DBZ-N2 at Gandhidham without his notice and permission and that he had already requested the Secretary of respondent No. 1 authority that he had no objection if the said alteration and addition was dismantled even at his cost. He further requested that this alteration may be got dismantled at Government or at his own cost. In the meantime, the first respondent authority acting upon the information supplied by respondent No. 2, by his letter dt. 9-5-1970, passed a demolition order on 13-5-1970 which is annexed as annexure 'C collectively to the petition. This order was addressed to the petitioner as well as respondent No. 2 and they were informed that as the petitioner had carried out the construction, addition and alteration in the said house without the permission of the authority in writing as required by section 7 of the Gandhidham Act, the same was required to be demolished. Details of unauthorised construction, addition and alteration were mentioned in the said demolition order as under : -