Gujarat High Court Rejects 10-Yr-Old PIL For Ban On Commercial Activities In Manekchowk's Residential Zone In Ahmedabad's Old Walled City
The Gujarat High Court recently dismissed a 10-year-old public interest litigation petition for banning the commercial usage of residential premises in Ahmedabad's Manekchowk area–located in the old walled city claiming that it was being illegally used for activities such as jewellery making which causes pollution.
A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi in its September 6 order said, "Pursuant to the orders passed by this Court, Ahmedabad Municipal Corporation has effected seal on buildings which were used unauthorized for commercial purposes and the buildings in question were sealed only on the ground that there were shops on the ground floor, which were used for commercial purposes for the manufacture of jewellery.”
After noting this fact and the prayers in the plea the high court said that the petitioner had filed the plea on the "wrong premise" that the area known as Manekchowk–existing in walled city known as Pole–is an area of "purely residential use" and the commercial activities in the constructions which were raised initially for residential purposes cannot be carried out.
The bench further noted the contentions of the counsel appearing for Ahmedabad Municipal Corporation (AMC) GH Virk, that Manekchowk area in the old city is of "mixed use" and contains many heritage structures.
Virk submitted that the area contains both residences and shops adding that there are many structures where people have shops in the ground floor and they are residing at the first or second floor. He further submitted that the prayer sought by the petitioner to remove "all illegal construction" and for providing parking facility in Manekchowk area is vague and cannot be granted.
The high court further took note of a connected 2012 PIL filed by the President of a society 'Khadia Jan Seva Samiti'–seeking directions to the respondent authorities to take either to demolish the construction of commercial premises at several houses located in Gusa Parekh ni Pol, Khadia (also in the walled city) or direct that the newly constructed premises are not used for any commercial activity.
Noting Virk's submission that the old city area is of mixed use the high court said, "For any particular constructions raised by any one illegally, it would always be open for the Corporation to initiate action by issuance of a proper notice".
The high court further said that "vague assertions" were made in this petition regarding constructions raised by the owners of the houses in question and "using the premises for commercial purposes cannot be a reason to grant any relief". It further observed that the last order in this PIL was in 2016 and that "for more than 8 years, the petitioner has not pressed the prayer in the PIL into service".
The high court thereafter went on to dismiss both the PILs after observing that the reliefs prayed for cannot be granted.
It said, "The current status and position of the area has not been brought on record by means of any affidavit filed in the recent past. We, therefore, dismiss both the PILs on the ground that the reliefs prayed therein cannot be granted. Interim relief, if any, granted earlier shall stand vacated".
Background
The grievance raised by the petitioner in the first PIL pertained to the units engaged in making gold and silver ornaments located Manekchowk area located in the old walled city, also known as the old city in Ahmedabad.
The relief prayed in the PIL was to put complete ban on construction and usage of residential premises for commercial use claiming that many buildings which are constructed for residential use are being "unauthorisedly used for commercial purposes, mainly for making jewellery".
The main grievance raised by the petitioner was that such activities of commercial use was causing pollution.
In its May 2, 2016 order the high court after taking note of categorization of manufacturing units in three parts had sought the response of the Gujarat Pollution Control Board (GPCB).
In this order the high court had noted that in the first category there were 70 units wherein, as per municipal corporation, the nature of the activity was "innocuous" and so would not require licensing control by such units. In the second category consisting of 2063 units, the licenses subject to the verification can be granted as per the corporation. In the last category, 88 units which according to the Corporation, due to some reason or the other, may not be permitted to operate.
The court in its May 2, 2016 order also noted the reasons given by the Ahmedabad Municipal Corporation with respect to these 88 units. The corporation had said that in units where silver/gold melting is being carried out through electric furnace, would require a No Objection Certificate (NOC) from GPCB/Appropriate Authority.
The corporation had further said that units carrying out "silver/gold melting" through diesel and/or charcoal, must be "sealed"; units using a "small amount of acid/chemical" need to obtain NOC from appropriate committee (which is formed as per the order issued from High Court). Meanwhile the high court in its May 2016 order had noted the GPCB counsel's submission that "none of the units" would required any license from the board.
However in order to bring on record GPCB's response, time was granted by the high court to the board to file its affidavit narrating whether any of the activities by these 88 units falling in the third category would require consent, no objection or license from board.
Thereafter an application was filed by another individual seeking a direction to open the seal of a house located at Raja Mehta-ni-Pol, Kanji Divan no Khancho, Ahmedabad.
The high court in its September 19, 2016 by order had directed the Corporation to remove the seal on the house in question on the condition that the applicant (who had sought seal removal) shall file an undertaking that the premises will be used "only for the residential purposes and no commercial, non- residential activity would take place in the premises".
The court in its September 2016 order had then observed “In case of any breach of the said conditions, it would be open for the Corporation to seal the premises in question and to take further steps for breach of such undertaking”.
Case title: BHAVIK SHAILESHBHAI SHAH v/s STATE OF GUJARAT & ORS.
LL Citation: 2024 LiveLaw (Guj) 129