C.A.V ORDER
1.00 By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction directing the respondent No. 2 - Ahmedabad Municipal Corporation to grant Building Use Permission to the petitioner pursuant to and in furtherance of the order dtd.28/7/2010 passed by the respondent No. 1 - State of Gujarat, which is at Annexure-J to the petition in respect of the plot of the petitioner in which the commencement letter/Raja Chithhi was issued by the respondent No. 2, which is at Annexure-B to the petition.
1.01 It is the case on behalf of the petitioner that the respondent No. 2 - Ahmedabad Municipal Corporation is designated as Area Development Authority by the State Government under section 6(1) of the Gujarat Town Planning and Urban Development Act, 1976 (“hereinafter referred to as “the TP Act” for short) for the area identified as Development Area falling with the territorial limits of respondent No. 2 - Ahmedabad Municipal Corporation. Accordingly, respondent No. 2 is also “appropriate authority” under section 2(iii) of the of the TP Act. It is the case on behalf of the petitioner that the respondent No. 1 - State of Gujarat is having a supervisory control over the respondent No. 2 in view of the provisions of sec.122 of the TP Act.
1.02 It is the case on behalf of the petitioner that the predecessor-in-title of the petitioner submitted application in the prescribed format seeking commencement letter/Raja Chithhi from the respondent No. 2 for the development of the land in question by putting up the construction there upon. The said application was submitted under sections 29(1), 34 and 49(1)(B) of the Town Planning Act and Sections 253 and 254 of the Bombay Provincial Municipal Corporations Act, 1949. According to the petitioner, necessary plans were also submitted along with the said application. That the respondent No. 2 issued commencement letter/Raja Chithhi dtd.13/1/2005 in favour of the petitioner in its erstwhile name. It is the case on behalf of the petitioner that pursuant to a request made by the petitioner while moving an application before the respondent No. 2, seeking commencement letter/Raja Chithhi, the respondent No. 2 - Ahmedabad Municipal Corporation permitted additional height of 1.5 meters over and above permissible height of 16.5 mtrs. of the building qualifying as “Low Rise Building” under the Development Control Regulations (hereinafter referred to as “GDCR”). It is also the case on behalf of the petitioner that in addition to the aforesaid, area of proposed building qualifying as atrium was directed not to be considered as built up area while determining the total built up area of the said building. It is the case on behalf of the petitioner that since the petitioner wanted to put up a centrally air conditioned shopping mall on the said land, the petitioner was required to provide for a ducting system for centrally air conditioned shopping malls and therefore, it was necessary to have an additional height of 1.5 meters for the said building as per the established constructions norms followed in respect of Central Air-conditioned Shopping Mall. It is the case on behalf of the petitioner that since the said proposed building of the petitioner was having Ground+3 Floors, the same was qualifying as “Low Rise Building”, within the meaning of Regulation 2.9(j) of GDCR, for which the maximum permissible height was 16.5 mtrs. According to the petitioner, therefore, it was absolutely incumbent upon the petitioner to apply for relaxation in respect of the provision contained vide said Regulation 2.9 (j) of GDCR, prescribing permissible height for the said proposed building of the Petitioner upto 16.50 mtrs. Therefore, a specific request was made to respondent No. 2 by the Petitioner for additional height upto 1.5 mtrs. for the said building at a point of time when the Petitioner applied for Commencement Letter/Raja Chithhi for commencing the activity of development upon the said land. It is the case on behalf of the petitioner that so far as atrium is concerned, the same refers to an open space on the ground floor of the said building, upon which there is no construction of any shop and which is meant for the movement of the public visiting the said building. It is the case on behalf of the petitioner that the said area being the area for common usage, like staircase, is not required to be considered as built-up area while determining the total built-up area for the said building. However, for the purpose of central air conditioning system for the said building of the petitioner, the said area, qualifying as “atrium”, was required to be covered by a transparent material made up of fiber and cloth. It is the case on behalf of the petitioner that since the said atrium was to be covered solely for the purpose of making it possible to have a central air conditioning system in the said building of the petitioner without using the said atrium for any commercial purpose, like shop, a specific request was made to respondent No. 2 for not considering the said atrium as built-up area by referring to the closure of the said atrium at the top by a transparent sheet made up of fiber and cloth. It is the case on behalf of the petitioner that upon receipt of the commencement letter/Raja Chithhi, the petitioner commenced the activity of development upon the said land and the construction was fully completed somewhere in the month of August, 2009. According to the petitioner the said construction was in compliance with the aforesaid commencement letter/Raja Chithhi as also plans for construction which came to be sanctioned. It is the case on behalf of the petitioner that thereafter the petitioner approached the respondent No. 2 Corporation for issuance of B.U Permission for making payment of requisite fees on 13/8/2009. According to the petitioner thereafter respondent No. 2 called upon the petitioner to pay a further sum of Rs. 6.60 Lacs towards cess as pre-condition for processing the concerned application of the petitioner seeking BU Permission. Accordingly, the petitioner paid the aforesaid amount on 25/11/2009. It is the case on behalf of the petitioner that thereafter, the application of the petitioner seeking B.U Permission was processed by the respondent No. 2. That the respondent No. 2 addressed a communication dtd.24/12/2009 to the petitioner by which it was informed to the petitioner as the construction put up by the Petitioner upon the said land was found to be not in consonance with GDCR and further, as the margin as required in respect of a construction qualifying as a special structure has not been kept in respect of the said building by the Petitioner, it would not be permissible on the part of respondent No. 2 to grant building use permission in respect of the said building to the Petitioner.
1.03 It is the case on behalf of the petitioner that from the communication dtd.14/2/2009 received by the petitioner under Right to Information Act, an objection was by the Deputy Municipal Commissioner (West Zone) of respondent - Corporation while processing the concerned application of the Petitioner for building use permission. According to the petitioner in the first place, vide Clause (2)(D) of the said report, it came to be mentioned that as per Regulation 2.9(j) of GDCR, the said building of the Petitioner was entitled to have a maximum height of 16.5 mtrs. and as against the same, the height of the said building of the petitioner is more by two mtrs. (according to the petitioner it should be 1.5 mtrs.) and, therefore, the said building is to be considered as eligible for the additional height as per the prevailing GDCR, the said building would qualify as “special structure” and for such special structure, the margin of 12 mtrs. on the side facing the main road and the margin of six mtrs. on the sides facing other than the main road are required to be kept which are not kept in respect of the said building and, therefore, it was reported to ascertain as to whether the Building Use Permission can be given to the said building of the petitioner by requiring the Petitioner to pay additional infrastructure fee as prescribed by the concerned Resolution of the Ahmedabad Urban Development Authority or not. It was also observed in the said report that atrium for the said building is a covered atrium and, therefore, the same is required to be taken into consideration while computing the built-up area of the said building. It was also mentioned in the said report that there is no provision in the GDCR for excluding the area of covered atrium from the built-up area of the concerned building and, therefore, it was reported to ascertain as to whether permission for building use can be given to the Petitioner by taking additional fee in respect of the said covered atrium or not.
1.04 That thereafter on the basis of the aforesaid report vide communication dtd.23/12/2009 the petitioner was informed that B.U Permission cannot be granted. It is the case on behalf of the petitioner that as per the noting of the Commissioner of the respondent No. 2 Corporation on the said communication dtd.23/12/2009, it came to be recorded by the Commissioner that unless special permission is granted by the State Government it would not be permissible for the respondent No. 2 to grant B.U Permission. It appears that thereafter the petitioner straightway approached the State Government for granting special permission with respect to additional height and exclusion of the area of the covered atrium from the built up area of the said building. That thereafter, the respondent No. 2 - State Government passed an order dtd.20/7/2010 whereby the respondent No. 1 directed the respondent No. 2 corporation to grant B.U Permission to the petitioner in respect of its aforesaid building of a centrally air conditioned shopping mall on a condition that the petitioner should deposit with respondent No. 2 an amount at the rate of 15% of the Jantri value of the aforesaid land in respect of the additional height of the said building over and above the height of 16.5 mtrs. prescribed by Regulation 2.9(j) of GDCR and the petitioner should not use the atrium for the usage thereof save and except the permissible usage thereof. It is the case on behalf of the petitioner that the petitioner is ready, willing and prepared to abide by the terms and conditions set out in the said order dated 28/7/2010 and, therefore, respondent No. 2 should grant the building use permission, as directed for vide the said order dated 28/7/2010 passed by respondent No. 1.
1.05 It is the case on behalf of the petitioner that despite the aforesaid order/direction dtd.20/7/2010 issued by the respondent No. 1 and despite the reminders by the petitioner, respondent No. 2 Corporation - appropriate authority is not granting B.U Permission for the building in question and hence the petitioner has preferred the present petition under Article 226 of the Constitution of India.
1.06 It is the case on behalf of the petitioner that the petitioner has been given to understand that as the issue concerning the unauthorized constructions is pending before the Hon'ble High Court by way of public interest litigation, it would not be possible for respondent No. 2 to pass any order in respect of the building use permission requested for by the petitioner. It is the case on behalf of the petitioner that as the issue pending before this Hon'ble Court by way of PIL is with respect to issue of not providing parking and fire safety measures in the concerned buildings by putting up the construction in violation of the sanctioned plans for constructions and the same has nothing to do with the order/direction issued by the respondent No. 1 with respect to the building of the petitioner. Hence, the petitioner has preferred the present Special Civil Application for the aforesaid reliefs.
2.00 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has vehemently submitted that the action of the respondent No. 2 in not granting B.U Permission for the building in question despite the direction issued by the State Government vide its order dtd.28/7/2010 is absolutely illegal, arbitrary and contrary to the provisions of the statute. It is submitted that once the respondent No. 1 as a supervisory authority under the Town Planning Act has directed the respondent No. 2 to grant B.U Permission on certain conditions, which the petitioner is ready and willing to abide by, the respondent No. 2 has no authority to deny the B.U Permission. It is submitted that therefore, the action of th respondent No. 2 in not granting B.U Permission is absolutely illegal and arbitrary.
2.01 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner, relying upon sec.122 of the TP Act has submitted that the State Government from time to time may issue directions/guidelines to the appropriate authority and the appropriate authority is bound to act as per the said directions/guidelines issued by the State Government. Therefore, the respondent No. 2 is bound to grant B.U Permission to the petitioner pursuant to the directions issued by the State Government vide communication dtd.28/7/2010.
2.02 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has further submitted that in view of the Development Permission/Raja Chithhi granted vide order dtd.28/7/2010 permitting the petitioner to put up construction beyond 16.5 Mtrs. treating the building as “law rise building” and a specific order that the construction of the atrium would not be considered in the Built Up area, subsequently it is not open for the respondent Corporation to deny B.U Permission and/or object to grant B.U Permission on the aforesaid land.
2.03 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has further submitted that in view of the grant of commencement letter/Raja Chithhi dtd.13/1/2005 for the purpose of development of the said land, with a provision therein with regard to the height of the said building and covering of the atrium without requiring the petitioner to make the payment of any amount for the same, it is not open for the respondent Corporation to either deny B.U Permission on the aforesaid ground and/or charge additional amount while granting B.U Permission.
2.04 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has further submitted that in view of specific permission granted while issuing Development Permission/Raja Chithhi dtd.13/1/2005 permitting the petitioner to put up construction beyond 16.5 Mtrs. and treating the building as “Low Rise Building”, the petitioner is not required to keep margin land open as required for “Special Building”.
2.05 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has further submitted that once having commencement certificate/Development Permission/Raja Chithhi granted vide order dtd.13/1/2005 by relaxing GDCR and permitting the petitioner to put up the construction beyond 16.5 Mtrs. and treating the building as “Low Rise Building” and once it is specifically provided that the construction of atrium shall not be considered in the Built Up area and when the petitioner has put up construction on the basis of the said Development Permission and sanctioned plan, on the ground of promissory estopple, it is not open for the respondent No. 2 Corporation now to deny B.U Permission on the aforesaid grounds.
2.06 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, reported in 1979 (2) S.C.C 409 (paragraph Nos. 31 and 33) as well as decision of the Hon'ble Supreme Court in the case of Express Newspapers Pvt. Ltd. v. Union of India, reported in AIR 1986 S.C 872 (paragraph No. 175), in support of his submission on promissory estopple.
2.07 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Division Bench of this Court in the case of Champaklal Becdharbhai v. State of Gujarat, reported in 1992 (2) GLR 958 by submitting that as held by the Division Bench of this Court considering the provisions of sections 17 and 122 of the TP Act, State Government has power to modify a Plan prepared by Urban Development Authority and all the decision of the Urban Development Authority are subject to the overall control of the State Government.
2.08 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has further submitted that as such the petitioner has no objection for payment of Rs. 1,91,61,163/-, except the payment of Rs. 53,90,000/- assessed for covering the atrium, as the said assessment is not as per the aforesaid order of respondent No. 1 dtd.28/7/2010.
2.09 Mr. D.C Dave, learned advocate appearing on behalf of the petitioner has relied upon the following decisions:-
By making above submissions and relying upon the above decisions, it is requested to grant the reliefs as prayed for.
3.00 Present petition is opposed by Mr. Prashant Desai, learned counsel appearing on behalf of the respondent No. 2 - Ahmedabad Municipal Corporation. It is submitted that as such Development Permission dtd.13/1/2005 granted by the then Commissioner of the Ahmedabad Municipal Corporation was contrary to the GDCR and therefore, at the time of issuing B.U Permission it is required to be considered whether the construction put up on the land is in consonance with the provisions of the GDCR or not. It is submitted that it has been found that the construction put up by the petitioner is not in consonance with the provisions of the GDCR and even sanctioned plans and therefore, the Ahmedabad Municipal Corporation has rightly refused to grant B.U Permission despite the directions issued by the respondent No. 1 dtd.20/7/2010.
3.01 Mr. Prashant Desai, learned counsel appearing on behalf of the respondent No. 2 - Ahmedabad Municipal Corporation has further submitted that even the petitioner had straightway approached the respondent No. 1 for granting special permission which under the provisions of the TP Act is not permissible. He has submitted that power to grant Development Permission and/or B.U Permission vests with the Corporation/appropriate authority only. It is submitted that, as such, order/communication dtd.20/7/2010 issued by the respondent No. 1 has no legal base and therefore, as such no writ of mandamus can lie directing the respondent Corporation to grant B.U Permission to the petitioner pursuant to and in furtherance with the order dtd.20/7/2010, which has no legal base.
3.02 An Affidavit-in-reply is filed on behalf of the respondent No. 2 - Ahmedabad Municipal Corporation. It is submitted in the Affidavit-in-reply that one Shyam Buildcon Private Limited and Harshadkumar Keshavlal Public Charitable Trust filed an application for construction on 4/12/2004 and in the said plans construction shown was of parking, commercial on the ground floor, first floor to third floor, staircase and Lift. It is further submitted that before the plans were submitted, letter was written on 23/11/2004 by the said Shyam Buildcon Private Limited to the Commissioner for relaxation in the norms of maximum permissible height of low rise building and atrium in the GDCR and also another letter was written on 26/11/2004 of the same effect. It is submitted that plans were scrutinized and placed for approval on 4/12/2004 and ultimately by letter dtd.13/12/2004, the said plans were rejected. It is further submitted in the said Affidavit-in-reply that a further request was made by Mr. Narendra K. Modi, Architect Engineer on behalf of said Shyam Buildcon Private Limited for relaxation in height and atrium by letter dtd. 18/12/2004. It is further submitted in the Reply that on the basis of request made by the said Shyam Buildcon Private Limited, a report was made by the Town Development Department (West Zone) to the Commissioner, wherein it was specifically mentioned that the permission of atrium without consideration of Built-up and FSI, as prayed for, cannot be granted. It is submitted in the said report that it was also specifically mentioned that more height of 1.5 mtrs. cannot be sanctioned and if more height is given, it will be “High-Rise Building” and not the Low Rise Building and therefore, the plan cannot be sanctioned. It is submitted that despite the above the Commissioner passed order dtd.23/12/2004 and FSI and more height was permitted contrary to the GDCR. It is further submitted that thereafter a letter was written by Shyam Buildcon Private Limited for certain changes to be made in the plans and relaxation in payment of parking deposit, however, the said proposal was rejected vide order dtd.1/1/2005. And thereafter the aforesaid Raja Chithhi was granted by the Corporation on 13/1/2005 as per the approval of the Commissioner dtd.23/12/2004 (which was contrary to the GDCR).
3.03 It is further submitted in the Affidavit-in-reply that thereafter application for Occupancy Certificate under the provisions of the GDCR and BPMC Act was submitted by the petitioner on 13/8/2009 and the said application was considered and on 29/8/2009, the said application was rejected on the aforesaid grounds. In the rejection order it is specifically mentioned that height of 18 meters cannot be permitted as “Low Rise Building” in view of the GDCR and there is also mention about covered atrium which has to be calculated in Built Up area. It is further submitted in the reply that on 5/10/2009 the petitioner replied to the said objection and ultimately report was made to the Commissioner on 14/12/2009 and the Commissioner passed an order rejecting the B.U Permission by order dtd.23/12/2009. It is submitted that on 24/12/2009 the petitioner was also informed about the said rejection. It is submitted by Mr. Desai, learned counsel appearing on behalf of the respondent Corporation that the petitioner has not challenged the order passed by the respondent No. 2 Corporation dtd.23/12/2009 by which B.U Permission has been refused. It seems that thereafter the petitioner approached the State Government directly for relaxation/Special Permission and to direct the Corporation to grant B.U Permission. That the Section Officer, Urban Housing and Urban Development Department, Stage of Gujarat written letter to the Commissioner on 22/3/2010 and reminder on 30/4/2010 for giving opinion in respect to the application made by the petitioner before the State Government and the Dy. Commissioner (West Zone) replied to the State Government vide letter dtd.19/5/2010. It is submitted that thereafter the respondent No. 1 - Government of Gujarat passed order dtd.28/7/2010 under sub-section (1) of section 29 of the TP Act for relaxation and has directed the respondent No. 2 Corporation to grant BU Permission accordingly. It is submitted by Mr. Desai, learned counsel appearing on behalf of the respondent Corporation that as such the State Government has no authority and/or jurisdiction to grant B.U Permission and/or relax conditions in exercise of powers under sub-section (1) of sec.29 of the TP Act. It is submitted as such B.U Permission and/or Development Permission is required to be granted by the appropriate authority. It is further submitted that as such communication/order dtd.29/7/1020 issued by the respondent No. 1 - State Government has no legal base and therefore, no writ of mandamus can be issued directing the respondent No. 2 - Corporation to act as per the order dtd.28/7/2010, which has no legal base.
3.04 It is further submitted on behalf of the respondent No. 2 Corporation that Notification issued by the Government of Gujarat under sec.29 of the TP Act dtd.4/8/2010 and application of the petitioner granting B.U Permission dtd.13/8/2010 were processed by the Dy. Taluka Development Officer (West Zone) in August, 2010 and placed before the Municipal Commissioner in September, 2010. However, during the aforesaid period, Hon'ble Mr. Justice K.M Mehta Committee which was appointed by the Hon'ble High Court to ensure compliance of the High Court's orders in PIL - Special Civil Application No. 10488 of 2008 was kin to ensure compliance of the orders passed by the Hon'ble High Court and since the demolition of illegal construction on CG Road was one of the burning issue during the aforesaid period and shopkeepers of CG Road were representing before the committee to regularized their structures under sec.29 of the TP Act and therefore, it was thought fit by the Ahmedabad Municipal Corporation not to implement and/or act as per the order of the respondent No. 1 dtd.28/7/2010. It is further submitted in the reply filed on behalf of the respondent No. 2 that while passing order dtd.28/7/2010 and regularizing building in question, the State Government may not be aware about the ground reality and legal situation. It is submitted that therefore, regularizing one shopping mall and ignoring so many structures would have created a bad impression on the Ahmedabad Municipal Corporation as well as Government. It is submitted that even this matter was also brought to the notice of the Secretary, Urban Housing and Urban Development Department of the Government of Gujarat and the Hon'ble Minister for Urban Housing and Urban Development Department.
3.05 It is further submitted in the reply filed on behalf of the respondent No. 2 Corporation that the petitioner is having plot admeasuring 6822.12 sq.mtrs At planning stage itself they have planned for a high rise building (height more than 16.5 mtrs.) and asked permission for 18.00 mtrs. height of building. As per GDCR for high rise building norms, maximum permissible ground coverage is 30% of plot area (2046.63 sq.mtrs) and minimum margin all around the building is to be kept 6.00 mtrs. but in the present case the petitioner has utilized @ 45% of ground coverage (3059.27 sq.mtrs) and kept margin ranging from 3.0 mtrs. to 4.57 mtrs.) only instead of 6.0 mtrs As a result of this petitioner got undue benefit of 1012.64 sq.mtrs of additional undue ground coverage, which was otherwise available for ground level parking for public at large, which is an encroachment on public place. If this space was available as per high rise plan, public at large could have been using it for ground level parking, in absence of such parking public roads are used as parking. Government has already regularized the height of this building, but for undue ground coverage petitioner may be asked to pay amount according to Jantry rate i.e 25,000 per sq.mtr, which approximately become 1012.64 × 25,000 = 2,53,16,000. If we consider the market value for undue advantage taken at planning stage itself, a huge sum ore than Rs. 10 Crores) could be recoverable from the petitioner. This is only to discourage such builders from encroaching public space and making construction de-hors provisions of GDCR.
3.06 Mr. Prashant G. Desai, learned Senior Advocate appearing on behalf of the respondent Corporation has relied upon the decisions of the Hon'ble Supreme Court in the case of Dr. H.S Rikhy v. The New Delhi Municipal Committee, reported in AIR 1962 S.C 554; in the case of Maharshi Dayanand University v. Surjeet Kaur, reported in 2010 AIR SCW 6001; in the case of M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu) reported in (1999) 6 SCC 464 as well as in the case of State of Uttar Pradesh v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti, reported in (2008) 12 SCC 675, in support of his submission that there cannot be any estopple against the statute.
3.07 Mr. Prashant G. Desai, learned Senior Advocate appearing on behalf of the respondent Corporation has also relied upon the decision of the Hon'ble Supreme Court in the case of Sneh Gupta v. Dwevi Sarup, reported in (2009) 6 SCC 194(Head Note-R), by submitting that granting of any relief in favour of the petitioner would tantamount to perpetuate illegality and therefore, the petition may not be entertained and/or no relief may be granted to the petitioner as prayed for.
By making above submissions and relying upon above decisions, it is requested to dismiss the present petition.
4.00 Affidavit-in-Reply is also filed on behalf of the respondent No. 1 - State Government. It is submitted on behalf of the respondent No. 1 that looking to the hardship that may be faced by the petitioner after putting up the construction as per the sanctioned Development Permission and commencement letter granted by the Corporation, order dtd.20/7/2010 has been passed in exercise of powers conferred under sub-clause (iii) of sub-section (1) of section 29 of the TP Act.
4.00.1 In reply, Mr. DC Dave, learned advocate appearing on behalf of the petitioner has submitted that in view of the fact that the petitioner has proposed a Low Rise building with relaxation in height to the extent of 1.5 mtrs. once relaxation is granted, the building is required to be considered as Low Rise Building for all purposes and the petitioner is not required to have Built Up area and/or parking area and/or margin as per the “special building” and/or “High Rise Building”, as sought to be contended on behalf of the respondent No. 2. Submitting accordingly, Mr. Dave, learned advocate appearing on behalf of the petitioner has requested to allow the present petition.
5.00 Heard the learned advocates appearing on behalf of the respective parties at length.
5.01 At the outset, it is required to be noted that by way of this petition, the petitioner has sought writ of mandamus directing and/or commanding the respondent No. 2 Corporation to grant B.U Permission to the petitioner pursuant to and in furtherance with the order dtd.20/7/2010 passed by the respondent No. 1. No other relief is sought. Therefore, before granting any writ of mandamus directing the respondent No. 2 - Corporation to grant B.U Permission pursuant to and in furtherance of the order dtd.20/7/2010, court is required to consider whether such an order, of which mandamus/compliance is sought has a legal base and/or the same is in accordance with law or not. It appears and as so stated even by the petitioner as well as respondent No. 1 in the reply and even so stated in the order dtd.20/7/2010 passed by the Officer on Special Duty and Ex-Officio, Joint Secretary to the Government of Gujarat, Urban Housing and Urban Development Department, the said order has been issued in exercise of clause (ii) of sub-section (1) of section 29 of the TP Act whereby the State Government has relaxed the Floor Height of each floor with respect to the Development Permission granted by the Ahmedabad Municipal Corporation in Final Plot Nos. 610, 612 and 613 of Town Planning Scheme No. 3 (Ellisbridge) under sub-section (1) of section 29 of the TP Act on the terms and conditions mentioned in the said order. That the said order dtd.20/7/2010 has been issued by the State Government in exercise of powers under clause (ii) of sub-section (1) of section 29 of the TP Act. Sec.29 of the TP Act does not permit and/or authorise the State Government and/or Urban Housing and Urban Development Department to grant any such relaxation with respect to Development Permission granted by the Ahmedabad Municipal Corporation. Sec.29 of the TP Act provides for grant of Development Permission by appropriate authority. As such the learned advocate appearing on behalf of the petitioner as well as even learned Assistant Government Pleader appearing on behalf of the respondent No. 1 - State Government are not in a position to satisfy the court with respect to exercise of powers by the State Government under sub-section (1) of section 29 of the TP Act with respect to relaxation of the Development Permission granted by the appropriate authority.
5.02 Mr. DC Dave, learned advocate appearing on behalf of the petitioner has heavily relied upon section 122 of the TP Act in support of his submission that the State Government is having a supervisory controlling jurisdiction over the respondent No. 2 Corporation and therefore, directions issued by the respondent No. 1 are binding upon the respondent NO. 2. The aforesaid submission cannot be accepted. Sec.122 of the TP Act provides and/or authorizes the State Government to issue general directions with respect to Development Plan and the same cannot be applied and/or invoked while granting relaxation in the Development Permission, which is required to be issued by the appropriate authority. It is required to be noted that such directions are even otherwise must be in consonance with the provisions of the GDCR and not for any construction which might be contrary to the provisions of the GDCR. As stated above, it is the specific case on behalf of the respondent No. 1 and so stated in the order dtd.28/7/2010 passed by the respondent No. 1 that the direction has been issued under sub-section (1) of section 29 of the TP Act, which does not authorize the State Government to issue such directions relaxing the conditions in the Development Permission. Therefore, when the order dtd.28/7/2010 issued by the respondent No. 1 has no legal base, no writ of mandamus can be issued directing the respondent No. 2 - Corporation to grant B.U Permission as per order dtd.28/7/2010 issued by the respondent No. 1. To issue such a writ of mandamus would amount to perpetuate illegality, which is not permissible. Writ of mandamus can be issued only directing and/or commanding an appropriate authority of the Government to act in accordance with law. No writ of mandamus can lie and/or can be issued to implement and/or directing an appropriate authority to act as per the order which is found to be not in accordance with law. Therefore, the prayer of the petitioner to issue writ of mandamus directing the respondent No. 2 to grant B.U Permission in furtherance with and pursuant to the order dtd.28/7/2010 issued by the respondent No. 1, cannot be granted. As stated above, as such no other relief has been sought. It is also required to be noted at this stage that on 23/12/2009 the respondent No. 2 has already communicated to the petitioner with respect to refusal of their application for grant of B.U Permission on the grounds set out in the said communication and the said order has not been challenged by the petitioner.
5.03 Now, so far as the reliance placed upon the decision of the Division Bench in the case of Champaklal Becharbhai (supra) is concerned, it is to be noted that the same would be applicable with respect to the powers of the State Government to modify a Plan prepared by the Area Development Authority and not with respect to Development Permission/Raja Chithhi and/or giving any relaxation in the Development Permission/Raja Chithhi contrary to GDCR.
5.04 Now, so far as the contention on behalf of the petitioner on promissory estopple by submitting that the petitioner has put up construction as per Development Permission/Raja Chithhi granted vide order dtd.28/7/2010 is concerned, it appears that the said Development Permission was granted by the respondent No. 2 despite the objection raised by the concerned department and despite the report submitted by the concerned department. Such a relaxation is not permissible and even the construction of atrium is also required to be considered in the Built Up area, still the then Commissioner of the Ahmedabad Municipal Corporation directed to grant Development Permission, which was absolutely against the provisions of the GDCR. Therefore, the submissions on behalf of the petitioner invoking principle of promissory estopple cannot be accepted. There cannot be any promissory estopple against the statute and/or provisions of law. As per the provisions of the GDCR any construction beyond 16.5 mtrs. is required to be treated and considered as “High Rise Building” for which there are separate norms with respect to margin, floors, parking etc.
5.05 It is to be noted that the petitioner wants its building to be considered as “Low Rise Building” and still wants to put up the construction beyond 16.5 mtrs. And on the other hand is not ready to fulfill the norms as required for the special structure/special building/High Rise Buildings and not ready to have margin accordingly.
5.06 The learned advocate appearing on behalf of the petitioner has also relied upon regulation No. 29.2 of the GDCR which provides that in specific cases where clearly demonstrated hardship is shown, competent authority may for the reasons to be recorded in writing by special permission permit any of the dimension prescribed in the GDCR to be modified and relying upon the said provision, it is the case on behalf of the petitioner that at the relevant time the Commissioner relaxed the provisions of GDCR with respect to height and construction of atrium not to be considered in built up area. So far as the aforesaid aspect is concerned, as such, nothing is on record that any special order was passed by the then Commissioner at the time invoking powers in Regulation No. 29.2 of the GDCR. Nothing is on record and even it is not the case on behalf of the respondent No. 2 Corporation that at the relevant time, Corporation exercised powers under Regulation No. 29.2 It is to be noted that even according to the respondent No. 2 - Corporation the concerned department submitted report against such relaxation and granting of the development permission by permitting the petitioner to put up construction beyond 16.5 mtrs. as Low Rise Building and not to consider atrium in the Built Up Area, by submitting that it would be contrary to the GDCR and still the then Municipal Commissioner directed to grant Development Permission contrary to GDCR. Therefore, no relief can be granted to the petitioner on the basis of promissory estopple.
5.07 It is also required to be noted that even the B.U Permission has been refused on the other grounds also, however, as the only prayer in the present petition is to direct the respondent No. 2 Corporation to grant B.U Permission to the petitioner with respect to the building in question pursuant to and in furtherance with the order dtd.28/7/2010 issued by the respondent No. 1 only and action of the respondent No. 2 Corporation in refusing to grant B.U Permission on the other ground is not challenged, this Court is not further entering into the same.
6.00 In view of the above and for the reasons stated above, present petition fails, as no relief can be granted to the petitioner directing the respondent No. 2 to grant Building Use Permission with respect to the building in question pursuant to and in furtherance of the order dtd.28/7/2010 issued by the respondent No. 1, which has no legal base and which is not found in accordance with law. Accordingly, present petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.