w w w . L a w y e r S e r v i c e s . i n



Ahmedabad Medical Association Through Vice President Maulik Sureshchandra Shah v/s State of Gujarat


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- G. K. E. MEDICAL PRIVATE LIMITED [Active] CIN = U85100WB2009PTC139049

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- A R MEDICAL PRIVATE LIMITED [Active] CIN = U24232AS2003PTC007179

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C J MEDICAL INDIA PRIVATE LIMITED [Active] CIN = U33110TG2010PTC068126

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- S P S MEDICAL INDIA PRIVATE LIMITED [Active] CIN = U51397BR2007PTC013129

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- P. MEDICAL PRIVATE LIMITED [Strike Off] CIN = U85195TG1987PTC008112

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- P L MEDICAL INDIA PRIVATE LIMITED [Strike Off] CIN = U33130DL2011PTC225068

Company & Directors' Information:- GUJARAT CORPORATION (INDIA) PRIVATE LIMITED [Strike Off] CIN = U51909GJ1948PTC000288

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- K 4 P ASSOCIATION [Active] CIN = U01407KL2014NPL037090

Company & Directors' Information:- R H D MEDICAL PRIVATE LIMITED [Active] CIN = U85110DL2021PTC377464

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- SURESHCHANDRA LIMITED [Not available for efiling] CIN = U99999MH1939PTC003026

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    R. Special Civil Application No. 5818 of 2021

    Decided On, 03 June 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MS. JUSTICE BELA M. TRIVEDI & THE HONOURABLE MR. JUSTICE BHARGAV D. KARIA

    For the Petitioner: Mihir Thakore, Senior Advocate, Keyur Gandhi, Kunal Vyas, Nanavati Associates (1375), Advocates. For the Respondent: Kamal Trivedi, Advocate General, Manisha Luvkumar Shah, Government Pleader with Sahil Trivedi, Dharmesh Devnani, AGP., Mihir Joshi, Senior Advocate with Y. Satyam, Advocate.



Judgment Text

Cav Judgment:Bela M. Trivedi, J.1. The Ahmedabad Medical Association and 44 other petitioners have filed the present petition challenging the impugned notices (at Annexure P/1 Collectively) issued by the respondent No. 2 to the petitioner nos. 2 to 45 and the other members of the petitioner No. 1-Association. The petitioners have also challenged the action of the respondent No. 2 in sealing the hospitals of the petitioner Nos. 2 and 3 and have sought further direction against the respondents to publish a reasonable time frame within which the applications in pursuance of the public notice dated 22.02.2021 could be made. To be precise, following prayers have been mainly sought in the present petition:"(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other writ, order or direction, quashing and setting aside the impugned notices (Annexure-P/1) and similar Notices issued by respondent No. 2 to other members of petitioner no. 1;(B) Your Lordships may be pleased to issue a writ of mandamus or a writ innature of mandamus or any other writ, order or direction, quashing and setting aside the action of sealing of hospitals of petitioner Nos. 2 and 3;(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other order or direction, directing the respondents to publish a reasonable timeframe within which the applications in pursuance of Public Notice dated 22.02.2021 can be made;"2. As per the case of the petitioners, the petitioner No. 1- Association was formed over 100 years ago for espousing the cause of its members. The petitioner Nos. 2 to 45 are the members of the petitioner No. 1 -Association and the Doctors professing medicine from their respective hospitals in the city of Ahmedabad. They have different areas of specialization and have vast experience in their respective fields. In the month of August, 2021, an unfortunate fire incident took place in the Shrey Hospital at Ahmedabad, which led to loss of eight innocent lives. A Public Interest Litigation being WPPIL No. 118 of 2020 came to be filed before this Court seeking various reliefs, in which the Division Bench passed various orders on 17.08.2020, 15.12.2020 and 26.02.2021 (Annexure P/3 Collectively). In the meantime, the respondent No. 2 issued a public notice on 22.02.2021 stating inter alia that under the prevalent laws, it is necessary to obtain the BU permission and Fire NOC before occupying any premises, and that those persons who do not have a BU permission and/or Fire NOC, may apply for the same, failing which appropriate action would be initiated against them. It is further the case of the petitioners that before the petitioners- Doctors and other members of the petitioner No. 1 Association could assess their situation, collate all papers pertaining to their property and make necessary applications pursuant to the said public notice, the petitioners have been individually served with the Notices (Annexure P/1 Collectively) calling upon them to produce the BU permission and Fire NOC. It was stated in the said Notices that if they failed to produce the BU permission and the Fire NOC within three days, their Hospitals would be sealed. On the receipt of such Notices, the petitioners made individual representations to the various Zonal Offices of the respondent No. 2. However, in the meantime, the respondent No. 2 already partially sealed the hospital premises of the petitioner Nos. 2 and 3. The other members of the petitioner No. 1 Association therefore apprehending that such an action of sealing would take place against them also, have filed the present petition. The petitioners have produced the Chart (Annexure P/6) depicting the position of the members of the petitioner No. 1 Association, in respect of the availability of the BU permission and Fire NOC of their premises.3. The respondent No. 2-Ahmedabad Municipal Corporation has filed the Affidavit-in-reply through the Town Development Officer challenging the very maintainability of the common and composite petition filed by the petitioners having different fact situations. Pressing into service the provisions contained in the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the GPMC Act") more particularly the provisions contained in Chapter XV, it has been stated that no person can occupy or permit to be occupied any building, or use or permit to be used the building or part thereof, until Building Use permission has been received from the Commissioner in that behalf. Since, the petitioner Nos. 2 to 45 did not have a valid BU permission as per the provisions of the GPMC Act, they cannot continue to occupy their respective premises in question. It is further contended that as per the provisions of the Comprehensive General Development Control Regulations (CGDCR) also continuation of the use and occupation by the petitioners in the building, which does not have a valid BU permission, is not permissible. Hence, vide the public notice dated 22.02.2021, issued in daily newspapers it was put to the notice of the Public that if Fire NOC and BU permission were not obtained, consequential legal steps would be initiated. Even the personal notices were issued to the erring hospitals and thereafter the premises were sealed as the concerned petitioners could not produce valid BU permission for the concerned premises. It is also contended that in some of the cases, the actions are taken by the respondent after one month of the issuance of the personal notices and therefore the contention about the hardships, etc. canvassed by the petitioners were ill founded.4. The petitioners have filed the affidavit-in-rejoinder contending inter alia that out of the 110 hospitals of the members of the petitioner No. 1 Association, only 26 hospitals did not have a valid Fire NOC as shown in the table at Annexure P/6 to the petition, and therefore the hospitals possessing the valid Fire NOC should not be sealed only on account of non- availability of valid commercial BU permissions.5. The respondent No.2 through its Town Development Officer has filed a further affidavit stating inter alia that pursuant to the observations made by the Court in the order dated 11.05.2021, the respondent-Corporation had considered the applications/ representations filed by the petitioners by giving them adequate personal hearing and passed separate detailed orders in respect of each of the petitioners. The respondent has produced the copy of the comparative chart showing the details of each hospital/unit vis. a vis. summary of outcome of the order passed by the respondent-Corporation at Annexure-R1 to the said Affidavit and has produced copies of some of the sample orders as Annexure-R2 Collectively.6. At the outset, it may be noted that the petitioners 45 in numbers, having absolutely different fact situations have filed this common petition invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the impugned Notices issued by the respondent- Corporation to the petitioner nos. 2-45 and to the other members of the petition no. 1 Association, who are not the party petitioners. Apart from the fact that the petitioner no. 1 does not appear to be a registered association and therefore not a legal entity, it is well settled proposition of law that only the person who suffers a legal injury himself can invoke the extra ordinary jurisdiction of this Court. Hence, such a common and composite petition filed by the petitioners espousing the cause of other errant persons, having absolutely different fact situations, without precise pleadings with regard to the availability of BU permission and Fire NOC cannot be entertained and deserves to be dismissed only on the ground of being vague and not maintainable. It is needless to say that a litigant is bound to make full and correct disclosure of facts and produce all the relevant documents along with the petition, and that any inaccurate or misleading statements made may amount to abuse of process of law. Even otherwise, the Court also does not find any substance in the merits of the petition for the reasons stated hereinafter.7. Before examining the merits of the petition, it may further be noted that the impugned Notices have been issued by the respondent- Corporation pressing into service the provisions contained in the GPMC Act and the Gujarat Fire Prevention and Life Safety Measurement Act, 2013 (hereinafter referred to as "the Fire Safety Measure Act"), as also giving reference to the orders passed by this Court in WPPIL No. 118 of 2020 and others, calling upon the petitioners and others to produce the evidence with regard to the 'Building Use Permission' and 'No objection Certificate' issued by the Fire and Emergency Services Department within three days of the receipt of the Notices, with the rider that if they fail to produce the same, necessary legal action for sealing the premises would be taken. The relevant directions given by the Court in the orders dated 15.12.2020 and 26.02.2021 are reproduced as under:Order dated 15.12.2020 "23. After due consideration of all the relevant aspects of the matter, we deem fit to issue the following directions:(1) ****(2) ****(3) ****(4) ****(5) The respondents are directed to ensure total compliance of the procedure for obtaining the permission for the Building Use (BU), as is required under the Comprehensive General Development Regulations, 2017, and which are in force today in the State of Gujarat;(6) ****(7) ****(8) ****(9) The respondents are directed to place on record by way of an affidavit, what action has been taken for not holding the valid and subsisting Building Use Permission and/or No Objection Certificate;(10) ****(11) The respondents are directed to place on record by way of an affidavit, the details of all such hospitals, including the COVID-19 designated hospitals and health care centres, in the jurisdictional limits of all the Municipal Corporations, Nagarpalikas and Local Bodies which do not have the valid and subsisting No Objection Certificate and the Building Use Permission (BU) in the State of Gujarat; (14) The respondents are directed to ensure for the hospitals, especially for the Intensive Care Units (ICUs), the following:*****"Order dated 26.02.2021"19) Having heard the learned counsel appearing for the respective parties and having regard to the additional affidavits placed on record of this case, we propose to issue the following directions;(A) ****(B) ****(C) ****(D) We direct the Municipal Commissioners of all the Municipal Corporations to state on affidavit what action has been taken by the Municipal Corporations against the erring high-rise buildings - 15 metres and 18 metres in height, special buildings, schools, hospitals, industries and factories within the jurisdictional limits of all the Municipal Corporations, which do not have a valid and subsisting No Objection Certificate;(E) The Respondent No. 4-Ahmedabad Municipal Corporation is directed to place on record by way of an affidavit, the details of all the private hospitals which have not complied with the directions issued in Paragraph No. 23(14) of our earlier Order dated 15.12.2020;"8. The learned Senior Advocate Mr. Mihir Thakore appearing for the petitioners relying upon the chart at Annexure P/6 produced by the petitioners submitted that almost all the petitioners had the NOC as required under the Fire Safety Measures Act and therefore the respondent-Corporation should not take the drastic step of sealing the hospital premises of the petitioners and of the other members of the petitioner- Association merely because the petitioners did not have the valid BU permission in respect of their premises. According to him, the action of sealing is a grave action having serious repercussions and there are thousands of buildings which did not have the Fire NOC and the BU permission, however the respondent- Corporation has issued impugned notices selectively only to the petitioners and others who are few in numbers. He also submitted that the action of the respondent-Corporation is also arbitrary inasmuch as it had failed to give sufficient time to the petitioners to respond to the Public Notices issued by it on 22.02.2021, calling upon the concerned persons to obtain the BU permissions and the Fire NOC. Learned Advocate Mr. Mihir Thakore lastly submitted that the members of the petitioner no. 1 Association have several indoor patients who are in need of immediate medical intervention and supervision and therefore also the respondent-Corporation should not take the drastic step of sealing the hospital premises of the petitioners in the larger interest of public.9. Repelling the submissions made by the learned Senior Advocate Mr. Thakore appearing for the petitioners, the learned Senior Advocate Mr. Mihir Joshi with learned Advocate Mr. Satyam Chhaya appearing for the respondent No. 2 submitted that the petitioners having failed to comply with the mandatory provisions of the GPMC Act and Fire Safety Measures Act could not claim reverse/ negative equity. Pressing into service the provisions contained in the GPMC Act and also the GDCR, Mr.Joshi submitted that the occupier and/or owner cannot use any building or part of any building without having a valid BU permission for such building. He also submitted that even the use of any building other than the use sanctioned by the authority is not permitted as per the Clause 3.9.4 of the GDCR and therefore if any occupier and/or owner is not holding the valid BU permission for using the building for the purpose other than the sanctioned purpose, cannot continue with the occupation or use. The impugned individual Notices have been issued, runs the submissions of Mr. Joshi, after issuing the public notices, Mr. Joshi concluded by submitting that the representations made by the petitioners and others have been duly considered and rejected by the concerned authority after giving opportunity of hearing, by passing speaking reasoned orders, during the pendency of the present petition and they are not under challenge in the present petition.10. Before adverting to the rival submissions made by the learned Advocates appearing for the parties, it would be germane to refer to some of the provisions contained in the GPMC Act, GDCR and Fire Safety measures Act. Section 263 of the GPMC Act pertaining to the 'Completion certificates permission to occupy or use the building' reads as under:"263. Completion certificates permission to occupy or use.- (1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work as is described in section 254, deliver or send or cause to be delivered or sent to the Commissioner at his office, notice in writing of such completion, accompanied by a certificate in the form prescribed in the by-laws signed and subscribed in the manner so prescribed, and shall give to the Commissioner all necessary facilities for the inspection of such building or of such work and shall apply for permission to occupy the building, (2) No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any work, until-(a) permission has been received from the Commissioner in this behalf, or(b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission."11. Section 268 of the GPMC Act empowers the Commissioner to order any building or any portion thereof to be vacated by giving a written notice, if such building or a portion thereof has been unlawfully occupied in contravention of Section 263.12. Clause No. 3.9 of the GDCR prescribes the procedure for obtaining the BU permission and Clause 3.8 provides for the revocation of the BU permission. Clause 3.9.4 thereof specifically provides that no building or premises shall be changed or converted to a use other than the sanctioned use without prior permission of the authority in writing and that the change of use not in conformity with the regulations shall not be permissible. Clause 4.3.2 casts responsibility on the owner or the developer to obtain the Building Use permission prior to making the use or occupying the building.13. Thus, from the bare perusal of the said provisions of the GPMC Act and of the CGDCR, it is clear that use of any building without the valid BU permission, and the use of the building other than the sanctioned use is not permissible and such use would be termed as illegal and unauthorized use and occupation by the occupants. The Commissioner has ample powers under Section 268 to order any building or part thereof to be vacated, if the same has been unlawfully occupied in contravention of Section 263.14. Similarly, Chapter V of the Fire Safety Measures Act pertains to the fire prevention and the life safety measures. Section 18 thereof requires the owner or the occupier of the building as classified by the regulations or part thereof, to provide fire prevention and life safety measures. Section 19(i)(a) provides that no authority empowered to issue a building use certificate shall issue the same unless it is satisfied that the owner or occupier either individually or jointly has complied with the provisions of Section 18 and has obtained the Fire Safety Certificate.15. So far as the facts of the present case are concerned, from the details provided in the Chart showing the status of the hospital premises of the petitioners and others produced by the petitioners and from the comparative chart produced by the respondent-Corporation showing the details of each hospital/unit of the petitioners vis. a vis. summary of outcome of the orders passed by the Corporation, it clearly transpires that none of the petitioners have any valid BU permission for occupying their respective hospital premises. The learned Senior Advocate Mr. Mihir Thakore appearing for the petitioners has miserably failed to produce any valid BU permission of any of the petitioners in respect of their premises. Thus, there is outright violation of the provisions contained in Section 263 of the GPMC Act and the provisions contained in the CGDCR for obtaining the BU permission at the instance of the petitioners. Mr. Thakore has also failed to point out any legal or statutory right of the petitioners having been violated by the respondent-Corporation in issuing the impugned Notices. Before issuing the impugned Notices individually, Public Notices were also published in the month of February, 2021, bringing to the notice of the public at large to obtain the requisite BU permission and Fire NOC, however there is nothing on record to show that the petitioners had made any concrete efforts to obtain or place on record the valid BU permissions. The representations and the applications made by the petitioners for the granting relaxation as per Regulation 3.12.1 of GDCR have also been rejected by the respondent-Corporation, pending this petition by passing reasoned orders, which have remained unchallenged.16. As held by the Supreme Court, in case of Indo Council for Enviro Legal Action versus Union of India reported in (1996) 5 SCC 281, the continued infringement of law over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by enforcement authorities encourage lawlessness. Adoption of such means cannot, or ought not to be tolerated in any civilized society. It is also observed that if a law is enacted but is not being voluntarily obeyed, then it has to be enforced, otherwise infringement of law, which is actively or passively condoned for personal gain will be encouraged which will in turn lead to a lawless society.17. The Supreme Court in case of VM Kurian versus State of Kerala reported in (2001) 4 SCC 215 has held with regard to the fi

Please Login To View The Full Judgment!

re safety in the buildings that there cannot be relaxation in Rules which are mandatory in nature.18. The submission of the learned Senior Advocate Mr. Mihir Thakore with regard to negative equality that the respondent- Corporation have not taken any action against the other owners/occupiers of the buildings which do not possess the BU permission, has no legs to stand, in view of the well settled proposition of law that the concept of equal treatment on the logic of Article 14 cannot be pressed into service in absence of a legal right. In case of Union of India versus International Trading Co. reported in AIR (2003) Supreme Court 3983 the Supreme Court has very aptly considered the concept of negative equality. The relevant part of Para. 14 thereof reads as under:"14......A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, 1950 (in short 'the Constitution') cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs at par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality, respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."19. In that view of the matter, the petition being devoid of merits deserves to be dismissed and is dismissed.20. Since, the learned Senior Advocate Mr. Thakore has requested the Court to grant sometime to make appropriate arrangements for the patients admitted in the hospitals of the petitioners, it is directed that the respondent-Corporation shall not take any action pursuant to the impugned Notices issued to the petitioner Nos. 2 to 45, for a period of two weeks i.e. upto 17th June, 2021, however shall be at liberty to take action thereafter in accordance with law.
O R