EMPIRE CONSTRUCTION AND HOTEL COMPANY LIMITED Vs. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD AND OTHER

JUDGEMENT

(1.) The petitioner Company seeks to challenge the order dated 19-6-1995 at "Annexure A" to this petition passed by the Respondent No. 2, Municipal Commissioner of Ahmedabad by which unauthorised construction made as shown in the notice under Sec. 260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the "said Act") was directed to be removed and prays for restraining the respondents from implementing or enforcing the impugned order.

(2.) The petitioner constructed a residential hotel known as "Shalin Hotel" in the city in the year 1991. The petitioner was given revised plan sanction on 20-4-1991 for the hotel building. As per the plan which was put up for the building there was a proposed construction of cellar of about 1300 sq. metres for making provision for parking 19 cars, 108 scooters and 122 cycles in the cellar. The petitioner had thus got the entire cellar sanctioned for parking purpose only. Over and above this, there was also provision for parking 2 cars and 94 cycles at the ground level of the premises. Building user permission under Sec. 263 of the said Act was granted to the petitioner on 9-9-1991. Thereafter, a show cause notice was given on 29-11-1991 to the petitioner under Sec. 260(1) of the said Act requiring the petitioner to show cause why the alleged construction in the cellar space converting it into a non-parking use, should not be removed. On 27-12-1991 the petitioner was asked to remove the unauthorised construction by an order made under Sec. 260(2) of the said Act. Thereupon, Civil Suit No. 762 of 1992 was filed by the petitioner in which an interim order against removal was granted. Later, in Feb. 1995 as the petitioner had removed the construction which was objected to, the Corporation filed a note in the Civil Court pointing out that the Corporation had cancelled the notice as the petitioner had removed the construction in respect of which notice was issued, without prejudice to the right of the Corporation to issue fresh notice in respect of the new construction made at the said place. As the notices and order under Sec. 260(1) and 260(2) of the said Act were withdrawn, the petitioner withdrew the said suit.

(3.) Thereafter, a fresh notice under Sec. 260(1) of the said Act was given to the petitioner on 30-4-1995 for showing cause as to why the construction made by the petitioner in the cellar should not be removed. A reply was given by the petitioner on 23-5-1995 to the said notice. The petitioner was given an opportunity for personal hearing on 8-6-1995. As no one turned up at the hearing, the Deputy Estate Officer made an order under Sec. 260(2) on 9-6-1995 requiring the petitioner to remove the unauthorised construction within 3 days failing which action would be taken by the Corporation under the said provision. Against the said order the petitioner again approached the Civil Court by filing Civil Suit No. 3091 of 1995 raising a contention that in similar cases deficit parking was condoned by charging fees. Interim relief was granted against demolition by the City Civil Court on 10-6-1995. Against that Order an Appeal from Order No. 277 of 1995 was preferred by the Municipal Corporation before the High Court. It appears that during the hearing of that Appeal from Order and Civil Application No. 2345 of 1995 made therein a direction was given on 16-6-1995 for giving an opportunity of being heard personally to the petitioner's Managing Director on 17-6-1995 and, accordingly, the hearing was given by the Municipal Commissioner to the Chairman and the Managing Director of the petitioner. The contentions which were raised by the petitioner are dealt with by the Municipal Commissioner in the impugned order which was made on 19-6-1995 and for the reasons mentioned in that order the Municipal Commissioner directed the removal of the unauthorised construction for which notice dated 30-4-1995 was issued under Sec. 260(1) of the said Act. Request for regularising the construction done in the parking space was turned down by the Municipal Commissioner. In Appeal from Order No. 277 of 1995 this fact was placed on record. The petitioner had indicated that it would withdraw the Civil Suit and pursue the remedy of filing a fresh suit or a writ petition, as may be advised against the order dated 19-6-1995. Appeal from Order No. 277 of 1995 was, therefore, disposed of without entering into the merits of the case and without prejudice to the rights and contentions of either party. The implementation of the order dated 19-6-1995 was directed to be deferred till 26-6-1995. The respondent Corporation and the Municipal Commissioner appeared by caveat and have filed their affidavit-in-reply.