Dilip Gadhavi vs. The State Of Gujarat

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

SMW(C) No(s).7/2020

IN RE: THE PROPER TREATMENT OF COVID 19 PATIENTS AND DIGNIFIED HANDLING OF DEAD BODIES IN THE HOSPITALS ETC.

(WITH APPLICATION FOR EXEMPTION FROM FILING ORIGINAL VAKALATNAMA/OTHER DOCUMENT, APPROPRIATE ORDERS/DIRECTIONS, CLARIFICATION/DIRECTION, EARLY HEARING APPLICATION, EXEMPTION FROM FILING AFFIDAVIT, EXEMPTION FROM FILING O.T., EXEMPTION FROM PAYING COURT FEE, INTERVENTION/IMPLEADMENT, PERMISSION TO APPEAR AND ARGUE IN PERSON, PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

WITH

SLP(C) No. 6381-6382/2021 (III)

(FOR ADMISSION and I.R. and IA No.55834/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.55832/2021-EXEMPTION FROM FILING O.T. and IA No.55837/2021-EXEMPTION FROM FILING AFFIDAVIT)

SLP(C) No. 7546/2021 (III) (FOR ADMISSION and I.R. and IA No.67199/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.67200/2021-EXEMPTION FROM FILING O.T., IA No. 82286/2021 - INTERVENTION APPLICATION, IA No. 82870/2021 - MODIFICATION OF COURT ORDER)

SLP(C) No. 7690/2021 (III) (FOR ADMISSION and I.R. and IA No.67482/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.67483/2021-EXEMPTION FROM FILING O.T. and IA No.67481/2021-PERMISSION TO FILE PETITION)

Date : 27-08-2021 These matters were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH

For Petitioner(s)

By Courts Motion, AOR

SLP 6381-82/2021	Mr. Dushyant Dave, Sr. Adv.<br>Ms. Aparna Bhat, AOR
	Ms. Karishma Maria, Adv.
	Ms. Neha Sangwan, Adv.
SLP 7690/2021	Mr. Ankur Saigal, Adv
	Mr. Mahesh Agarwal, Adv
	Mr. Keyur Gandhi, Adv
	Mr. Kunal Vyas, Adv

	Mr. Rishabh Parikh, Adv<br>Mr. E.C. Agrawala, AOR
SLP 7546/2021	Mr. Huzefa Ahmadi, Sr. Adv.<br>Mr. Mahesh Agarwal, Adv.<br>Mr. Keyur Gandhi, Adv.<br>Mr. Ankur Saigal, Adv.<br>Mr. Kunal Vyas, Adv.<br>Mr. Rishabh Parikh, Adv.<br>Mr. E. C. Agrawala, AOR
For Respondent(s)<br>UOI	Mr. Tushar Mehta, SG<br>Mr. K.M. Nataraj, ASG<br>Mr. Gurmeet Singh Makker, AOR<br>Mr. Rajat Nair, Adv.<br>Mr. Kanu Agrawal, Adv.<br>Mr. Saurabh Mishra, Adv.<br>Mr. Mohd. Akhil, Adv.<br>Mr. B. V. Balaram Das, AOR<br>Mr. Amrish Kumar, AOR<br>Mr. Prashant Singh 'B', Adv.
Andhra Pradesh	Mr. Mahfooz Ahsan Nazki, AOR<br>Mr. Polanki Gowtham, Adv.<br>Mr. Shaik Mohamad Haneef, Adv.<br>Mr. T. Vijaya Bhaskar Reddy, Adv.<br>Mr. Amitabh Sinha, Adv.<br>Mr. K.V. Girish Chowdary, Adv.
Arunachal<br>Pradesh	Mr. Abhimanyu Tewari, AOR<br>Ms. Eliza Bar, Adv.
Assam	Mr. Shuvodeep Roy, AOR<br>Mr. Kabir Shankar Bose, Adv.
Bihar	Mr. Azmat Hayat Amanullah, AOR
Goa	Mr. Arun Pedneker, Adv.<br>Mr. Sachin Patil, AOR
Gujarat	Mr. Tushar Mehta, SG<br>Ms. Manisha Lavkumar, Sr. Adv.<br>Mr. Aniruddha P. Mayee, AOR<br>Mr. Satyam Chaya, Adv.<br>Ms. Aastha Mehta, Adv.
Haryana	Mr. Anish Kumar Gupta, AOR<br>Ms. Archana Preeti Gupta, Adv.<br>Mr. Chandra Shekhar Suman, Adv.<br>Mr. Avdhesh Kumar Singh, Adv.<br>Ms. Rita Gupta, Adv.<br>Ms. Deepshikha Bharti, Adv.

	Dr. Monika Gusain, AOR
Himachal Pradesh	Mr. Himanshu Tyagi, AOR
Jharkhand	Mr. Kumar Anurag Singh, Adv.<br>Mr. Saurabh Jain, Adv.<br>Mr. Anando Mukherjee, AOR<br>Mr. Shwetank Singh, Adv.
Karnataka	Mr. Shubhranshu Padhi, AOR<br>Mr. Ashish Yadav, Adv.<br>Mr. Rakshit Jain, Adv.<br>Mr. Vishal Banshal, Adv.
Kerala	Mr. G. Prakash, AOR<br>Ms. Priyanka Prakash, Adv.<br>Ms. Beena Prakash, Adv.
Madhya Pradesh	Mr. Mirza Kayesh Begg, Adv.<br>Mr. Pashupati Nath Razdan, Adv.<br>Mr. Rohit K. Singh, Adv.<br>Ms. Maitreyee Jagat Joshi, Adv.
Maharashtra	Mr. Rahul Chitnis, Adv.<br>Mr. Sachin Patil, AOR<br>Mr. Aaditya A. Pande, Adv.<br>Mr. Geo Joseph, Adv.
Manipur	Mr. Pukhrambam Ramesh Kumar, AOR<br>Ms. Anupama Ngangom, Adv.<br>Mr. Karun Sharma, Adv.
Meghalaya	Mr. Amit Kumar, Adv. Gen.<br>Mr. Avijit Mani Tripathi, AOR<br>Mr. Aditya Shankar Pandey, Adv.
Mizoram	Mr. Siddhesh Kotwal, Adv.<br>Ms. Ana Upadhyay, Adv.<br>Ms. Manya Hasija, Adv.<br>Ms. Pragya Barssaiyan, Adv.<br>Mr. Nirnimesh Dube, AOR
Nagaland	Ms. K. Enatoli Sema, AOR<br>Mr. Amit Kumar Singh, Adv.<br>Ms. Chubalemla Chang, Adv.
Odisha	Mr. Shibashish Misra, AOR
Punjab	Mr. Atul Nanda, Sr. Adv.<br>Ms. Uttara Babbar, AOR<br>Mr. Manan Bansal, Adv.
Rajasthan	Dr. Manish Singhvi, Sr. Adv.

	Mr. Sandeep Kumar Jha, AOR
Sikkim	Mr. Raghvendra Kumar, Adv.<br>Mr. Anand Kumar Dubey, Adv.<br>Mr. Nishant Verma, Adv.<br>Mr. Narendra Kumar, AOR
Tamil Nadu	Dr. Joseph Aristotle S., AOR<br>Ms. Preeti Singh, Adv.<br>Ms. Ripul Swati Kumari, Adv.
	Mr. D. Kumanan, AOR<br>Mr. Sheikh Fakhrudeen Kalia, Adv.
Telangana	Mr. S. Udaya Kumar Sagar, AOR<br>Ms. Sweena Nair, Adv.
Tripura	Mr. Shuvodeep Roy, AOR<br>Mr. Kabir Shankar Bose, Adv.
Uttar Pradesh	Ms. Garima Prashad, Sr. Adv./AAG<br>Mr. Vishnu Shankar Jain, AOR
Uttarakhand	Mr. Atul Sharma, AOR
West Bengal	Mr. Suhaan Mukerji, Adv.<br>Mr. Vishal Prasad, Adv.<br>Mr. Nikhil Parikshith, Adv.<br>Mr. Abhishek Manchanda, Adv.<br>Mr. Sayandeep Pahari, Adv.<br>M/s. PLR Chambers & Co.
A&N Islands	Mr. K.V. Jagdishvaran, Adv.<br>Ms. G. Indira, AOR<br>Mr. M.K. Mondal, Adv.<br>Mr. P. Gandeepan, Adv.
Chandigarh	Mr. Gurinder Singh Gill, Sr. Adv.<br>Mr. P.P. Nayak,, Adv.<br>Mr. Kuldeep Singh Kuchaliya, Adv.<br>Ms. Aashna Gill, Adv.<br>Mr. Pratap Singh Gill, Adv.<br>Mr. Bhupinder, Adv.<br>Ms. Vandana Hooda, Adv.<br>Mr. Ajay Pal, AOR
NCT of Delhi	Mr. Chirag M. Shroff, AOR
Daman & Diu	Mr. Tushar Mehta, SG<br>Mr. Kanu Agarwal, Adv.<br>Mr. Rajat Nair, Adv.<br>Mr. Prashant Singh 'B', Adv.

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	Mr. Saurabh Mishra, Adv.<br>Mr. Raj Bahadur Yadav, AOR<br>Mr. Amrish Kumar, Adv.
J & K	Mr. G.M. Kawoosa, Adv.<br>Ms. Manjula Gupta, AOR
Puducherry	Mr. Aravindh S., AOR<br>Mr. A.Lakshminarayanan, Adv.
	Mr. Biju P Raman, AOR
	Mr. Pawanshree Agrawal, AOR
	Mr. Ashish Wad, Adv.<br>Mrs. Tamali Wad, Adv.<br>Mr. Sidharth Mahajan, Adv.<br>Ms. Sukriti Jaggi, Adv.<br>Mr. Ajeyo Sharma, Adv.<br>M/s. J S Wad & Co.
	Mr. Parijat Kishore, AOR
	Mr. M. Yogesh Kanna, AOR
	Mr. Manoj V George, Adv.<br>Mr. Saurabh Luthra, Adv.<br>Ms. Bhavika, Adv.<br>Mr. Ranjit Philip, Adv.<br>Ms. Shilpa Liza George, AOR
	Mr. Gaurav Agrawal, AOR
	Ms. Astha Sharma, AOR
	Mr. Ashok Kumar Singh, Adv.<br>Mr. Hussain Mueen Farooq, Adv.<br>Ms. B. Sudha, Adv.<br>Mr. Mohd. Kamran Khan, Adv.<br>Mr. Bikash Kumar Sinha, Adv.<br>Ms. Reeta, Adv.<br>Ms. Manju Jetley, AOR
	Mr. Talha Abdul Rahman, AOR
	Mr. Nalin Kohli, Adv.<br>Mr. Sidharth Sethi, AOR<br>Mr. Avinash Das, Adv.
	Mr. Rohit Anil Rathi, AOR
	Mr. Roshan Santhalia, AOR

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Mr. Pranjal Kishore, Adv. Mr. M.P. Vinod, AOR Ms. Aswathi M.K., AOR Applicant-in-person Mr. Awanish Sinha, AOR Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv. Ms. Pratima N. Lakra, AOR Ms. Taruna Ardhendumauli Prasad, AOR Mr. Parth Awasthi, Adv. Ms. Deepika Gupta, Adv.

UPON hearing the counsel the Court made the following O R D E R

1 On 8 July 2021, a notification has been issued by the Government of Gujarat in the Urban Development and Urban Housing Department. The notification which was issued purportedly in exercise of the power conferred by Section 122 of the Gujarat Town Planning and Urban Development Act 1976 contains the following directions:

"The buildings that do not have valid building use permission OR are in breach of building use permission OR have violated development control regulations such as change of use, margin, height restrictions etc., the owners/occupiers of such buildings shall immediately take corrective measures to comply with the development control regulations and shall comply with the same within a period starting from today till three months from the last day of applicability of the Gujarat Epidemic Diseases, COVID-19 Regulations, 2020. While all the Municipal Corporations/ Nagarpalikas/Urban Development Authorities/ Area Development Authorities shall take proactive appropriate measures to increase compliance of Building Use permission, however, no coercive action shall be taken against such buildings for breach of development control regulations from today till three months from the last day of applicability of the Gujarat Epidemic Diseases, COVID-19 Regulations, 2020."

2 Section 122 of the Gujarat Town Planning and Urban Development Act 1976,

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which has been invoked for issuing the notification, is in the following terms:

"122. Control by State Government. - (1) Every appropriate authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by any appropriate authority under this Act any dispute arises between the authority and the State Government, the decision of the State Government on such disputes shall be final."

• 3 The power which is vested in the State Government under Section 122 is to facilitate the efficient administration of the Town Planning and Urban Development Act. As a consequence of the notification dated 8 July 2021, the State Government has directed that:
  • (i) Buildings which do not have valid building use permission; or
  • (ii) Buildings which are in breach of building use permission; or
  • (iii) Buildings which have violated development control regulations, such as change of use, margins and height restrictions;

shall be exempt from the obligation to comply with the building control regulations for a period of three months from the last date of the applicability of the Gujarat Epidemic Diseases Covid-19 Regulations 2020. Though the notification states that in the meantime corrective measures shall be adopted to comply with the Regulations, within a period of three months, directions have been issued to all the local bodies in the State of Gujarat to take no coercive measures.

4 Prima facie, the notification dated 8 July 2021 is ultra vires the provisions of Section 122. Such an exemption from complying with the building control regulations which have been validly framed under the town planning legislation bears no nexus with the efficient administration of the Act. Granting exemptions from complying with development control regulations which are made in the public interest to promote the health, safety and welfare of citizens defeats the letter and purpose of the legislation. Condoning the gross irregularities in constructing buildings which do not have building use or, as the case may be, fire permissions, has resulted in violation of the law to the detriment to public health as is evident from the incidents of fire which have taken place both in Rajkot and Bharuch. The State of Gujarat shall take pro-active steps to ensure that the rule of law is observed. Consequently, pending further orders, the enforcement of the notification dated 8 July 2021 shall be held in abeyance by the State of Gujarat.

6 List the matters after three weeks.

SLP (C) No 7546 of 2021

• 1 We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution. The judgment of the High Court suffers from no error.
• 2 The Special Leave Petition is accordingly dismissed.
• 3 Interim order shall stand vacated.
• 4 Pending applications, including applications for intervention, stand disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER