Gujarat High Court
Laxmanbhai Rambhai Jalu vs Surat Municipal Corporation Of The City ... on 5 January, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5315 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 5315 of 2020
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 5315 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 4824 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 544 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LAXMANBHAI RAMBHAI JALU
Versus
SURAT MUNICIPAL CORPORATION OF THE CITY OF SURAT
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Appearance:
MR. SHALIN MEHTA, SENIOR COUNSEL WITH MR SAURIN A
MEHTA(470) for the Petitioner(s) No. 1
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1,2
MR. I.H.SYED, SENIOR COUNSEL WITH MR. PRITHU PARIMAL, for the
Petitioner(s) in S.CR.A NO. 4824 of 2019 and S.CR.A No. 544 of 2019.
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/01/2022
CAV JUDGMENT
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C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 Since all these matters are connected, they are being decided by this common judgment.
SPECIAL CIVIL APPLICATION NO. 5315 of 2020 1 The prayer in the petition, reads as under:
"8(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of Mandamus, or any other appropriate writ, order quashing and setting aside the impugned Orders bearing No. TDO/6653 dated 24.02.2020 passed by the In-charge Town Development Officer, Surat Mahanagar Palika - Respondent No.2 and Orders bearing Nos. TDO/ 6649 - 6652 all dated 24.02.2020 passed by In-charge Town Development Officer, Surat Mahanagar Palika - Respondent No.2 and further direct the Respondents to grant Building Use permission for towers "B-1" and "B-2" of "Parishram Park" situated on Final Plot No. 56A (New Final Plot No.57)."
2 The facts in brief are as under:
2.1 The facts relate to land being Revenue Survey No.76/2, Block No. 127 admeasuring 16,188 sq mtrs situated at Jahangirpura, Taluka : Adajan, District: Surat.
The land was originally owned by one Dayakorben Maganbhai Patel. The original owner had sought development permission for Final Plot Nos. 56-A and 56-B on 18.08.2004. The development permission was granted on 20.08.2004. N.A permission was granted on Page 2 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 24.08.2005.
2.2 It appears that the petitioner on 18.03.2004 purchased the land in question from the original owner through a registered sale deed. Final Plot no. 56-A admeasuring 6,264 sq mtrs is the land which is under consideration in this petition.
2.3 In order to construct high rise top residential buildings on the land in question, Final Plot No. 56-A, the petitioner applied for development permission on 05.04.2012. This was for construction of four towers, "A", "B-1", "B-2" and "C". The petitioner was required to file an affidavit regarding pendency of any litigations and therefore on 25.05.2012, he filed an affidavit stating that there was a pending litigation between between the petitioner and one Babubhai Govindbhai Nadiyadra (applicant of Civil Application No. 2 of 2020 and applicant of Special Criminal Application No. 544 of 2019). 2.4 Babubhai Govindbhai Nadiyadra, had filed a Special Civil Suit No. 15/2004 for specific performance against the original owner Dayakorben Maganbhai Patel, on the ground that an Agreement to Sell was entered into Page 3 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 between them on 13.08.1999 for the land in question, including the present land admeasuring 6,264 sq mtrs. The suit was dismissed on 18.04.2011.
2.5 Aggrieved by the dismissal of the suit, Babubhai Nadiyadra instituted First Appeal No. 1643 of 2011. By a judgment dated 24.09.2013, the High Court did not grant the prayer of specific performance but awarded damages to the appellant - original plaintiff Babubhai Nadiyadra to the tune of Rs.1,47,72,349/-.
2.6 The judgment and order of the High Court is a subject matter of Special Leave Petitions filed before the Hon'ble Supreme Court, one by the original plaintiff / appellant, present petitioner and the original owner. After having granted leave on 27.01.2014, on an interim application filed by Babubhai Nadiyadra, it is the case of the petitioner that no stay was operating against the issuance of B.U.Permission as is clear from the order dated 12.09.2014 passed by the Hon'ble Supreme Court. 2.7 By the impugned orders dated 24.02.2020 passed by the Surat Municipal Corporation, B.U.Permission for towers B-1 and B-2 have been refused to the petitioner on the Page 4 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 ground that litigations are pending before the Hon'ble Supreme Court and also Special Criminal Application No. 544 of 2019 is pending. These orders are under challenge. 3 Mr.Shalin Mehta, learned Senior Advocate, has appeared with Mr.Saurin Mehta, learned advocate for the petitioner. He made the following submissions:
3.1 He would submit that the original owner was granted development permission in 2004. The petitioner was granted revised development permission on 05.04.2012 for construction of four towers. N.A was granted for the land in question on 24.08.2005 and revised development permission was granted on 21.03.2013. Taking the Court through this revised development permission, Mr.Mehta, learned Senior Advocate, would submit that such granting of the revised development permission was not challenged by the respondent - appellant of the First Appeal and the petitioner of Special Criminal Application No. 544 of 2019.
Reading the development permission at page 64 of the paper book, Mr.Mehta, learned Senior Advocate, would submit that the development permission essentially Page 5 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 condition No. 6 categorically stated that the permission is granted subject to final judgment of all the litigations pending in the Court. The Surat Municipal Corporation, therefore, having granted such development permission and particularly when B.U.Permission for towers A and C were granted on 08.12.2008, it was illegal for the Corporation to not grant such permission for Towers "B-1"
and "B-2".
3.2 Mr.Shalin Mehta, learned Senior Advocate, would submit that the respondent - Corporation was a statutory authority and not a quasi judicial authority. Inviting the Court's attention to Clauses 7.1.1 to 7.1.4 of the Comprehensive General Development Control Regulations, 2017, ( hereinafter referred to as "CGDCR"), Mr.Mehta, learned Senior Advocate, would submit that on reading the affidavit dated 21.05.2012 filed for the purposes of getting revised development permission, nothing misleading was stated in the affidavit. In support of his submissions, Mr.Mehta, would invite the attention of the Court to the orders, esentially the interim order passed by this Court in First Appeal. Referring to the order dated Page 6 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 23.12.2011 passed in Civil Application No. 5828 of 2011 in First Appeal No. 1643 of 2011, Mr.Mehta, would submit that as per the order so passed, there was an unconditional order of injunction in respect of vacant portion of the land (now on which towers B-1 and B-2 are constructed) which was operative only till 31.01.2012. The order was conditional upon Babubhai Nadiyadra depositing a sum of Rs.1 crore or give a bank guarantee to the extent of Rs.3 crores. The same expired on 31.01.2012 as Babubhai Nadiyadra failed to deposit the said amount. The only modification that the Hon'ble Supreme Court granted by its order dated 27.04.2012 was to reduce the amount of bank guarantee from Rs. 3 crores to Rs. 1 crore.
3.3 In support of his submissions he would read the order of Hon'ble Supreme Court dated 27.04.2012 and submit that the bank guarantee was given by the appellant - Babubhai only on 25.05.2012.
3.4 Mr.Shalin Mehtra, learned Senior Advocate, would further submit that once the First Appeal was finally decided on 24.09.2013, the interim order merged with the Page 7 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 judgment, by which the appeal was dismissed. No false statement, therefore, can be attributed to the petitioner. 3.5 Mr.Shalin Mehta, learned Senior Advocate, would also rely upon the provisions of Section 263 (2)(b) of the Gujarat Provincial Municipal Corporation Act (GPMC Act), 2019. He would submit that if the Commissioner failed to intimate his refusal for building permission within 21 days, the building permission is deemed to have been granted. He would submit that the building permission was applied for on 20.12.2018 and in absence of rejection within 21 days the order which was impugned was beyond a period of 21 days and on that count alone it was bad. 3.6 Mr.Shalin Mehta, learned Senior Advocate, places reliance on paragraph 56 of the decision in the First Appeal, namely, First Appeal No. 1643 of 2011 to submit that the conduct of the present petitioner who was defendant No.5 was though deprecated, the same culminated into levying a penalty as is evident from reading paragraph 65(c) of the decision where the petitioner together with the other defendants were directed to deposit an amount of Rs.1 lakh for the Gujarat Page 8 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 State Legal Aid Authority.
3.7 Mr.Shalin Mehta, learned Senior Advocate, would submit that the observation in the impugned order with regard to the pendency of the Hon'ble Supreme Court proceedings is misplaced in view of the fact that Babubhai Nadiyadra failed to obtain a decree of specific performance in the civil suit as well as in the First Appeal before this Court. Both Courts concurrently denied specific performance of the agreement to Babubhai Nadiyadra. Therefore, denying B.U.Permission and let the subsequent purchaser occupy their flats merely because of the pending Civil Appeals before the Hon'ble Supreme Court is misconceived.
3.8 With regard to the prayers made in Special Criminal Application No. 544 of 2019 and 4824 of 2019, Mr. Shalin Mehta, learned Senior Advocate, would rely on the reply filed in the Civil Application for joining party by Babubhai Nadiyadra (petitioner of Special Criminal Application No. 544 of 2019) and submit that the Jahangirpura Police Station has already investigated on the representations / complaints and a report has been filed on 13.12.2018 Page 9 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 holding that no offence has been made out. Even the reports of the Vigilance Commission are on record. Since Special Criminal Application No. 544 of 2019 was also heard, Mr.Shalin Mehta, learned Senior Advocate, would adopt the submissions made in context of the Special Civil Application and submit that once the representations made by the petitioner of Special Criminal Application No. 544 of 2019 have been rejected by the Corporation and even when RERA has rejected the complaint, there is no merit in the Special Criminal Applications and the prayers made therein. In support of his submissions, Mr.Mehta, learned Senior Advocate, would rely on the following decisions which are in context of N.A permission. The decisions relied upon by Mr.Shalin Mehta, learned Senior Advocate, for holding that the Collector could not have considered that the pendency of civil suits while denying N.A.Permissions. He would rely on the following decisions:
3.8.1Special Civil Application No. 5924 of 2019 in the case of Dhansukhbhai Somabhai Ahir vs. State of Gujarat & Anr. He would rely on paragraphs 6.3 and 7 thereof.
Drawing support, he would submit that even in the Page 10 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 present case, Building Use Permission adopting the same analogy as is done in the case of N.A.Permission ought to be granted.
3.8.2Mr.Shalin Mehta, learned Senior Advocate, would then rely on decision in the case of Tusharbhai Harjibhai Ghelani & Anr vs. State of Gujarat & Ors., reported in 2019 (4) GLR 2578. Reliance was placed on paras 38 to 40 thereof. He would submit that the Collector while granting the N.A.Permission is to see whether there is the name of the concerned occupier in the revenue record. It is nowhere stated that the applicant should have a title or ownership over the land for which N.A.Permission is sought. He would draw the same analogy for the purposes of granting B.U.Permission.
4 Mr.I.H.Syed, learned Senior Advocate has appeared with Mr. Prithu Parimal, learned advocate for the applicant of Civil Application No. 2 of 2020, who is also the petitioner of Special Criminal Application No. 544 of 2019 and Special Criminal Application No. 4824 of 2019. Civil Application No. 2 of 2020 has been filed by the applicant Page 11 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 for being joined as party respondent in the Special Civil Application. Special Criminal Application No. 544 of 2019 has been filed with the following prayers:
"8(B) This Hon'ble Court be pleased to issue a writ of mandamus, and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction, directing the Respondents herein to act upon the representations of the Petitioner herein dated 14.09.2018, 01.10.2018 and 29.11.2018 and prefer complaints against the persons mentioned therein for offences under Section 181 and 182 of the Indian Penal Code, in accordance with Section 195(1) of the Code of Criminal Procedure."
4.1 In Special Criminal Application No. 4824 of 2019, the prayer of the applicant is as under:
" 8(B) This Hon'ble Court be pleased to issue a writ of mandamus, and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction, directing the Respondent No.2 to decide the representation of the Petitioner dated 20.02.2019, conduct an inquiry pursuant to the same and take appropriate steps towards initiation of criminal proceedings in accordance with law."
4.2 For the purposes of brevity, arguments of Shri I.H.Syed, learned Senior Advocate, as is evident from reading the memo of the civil application are considered for the purposes of deciding both, his civil application as well as the Special Criminal Applications referred to Page 12 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 hereinabove.
4.3 Mr.I.H.Syed, learned Senior Advocate, would submit that the original owner - Dayakorben Maganbhai Patel, was obliged to honour the agreement to sell dated 13.08.1999 entered into by and between the applicant and Dayakorben Maganbhai Patel, original owner. The applicant had filed a civil suit on 17.01.2004 being Special Civil Suit No. 15/2004 before the learned Additional Senior Civil Judge, Surat, seeking specific performance of agreement to sell dated 13.08.1999. On 23.01.2004, the applicant had got registered a lis pendens under Section 52 of the Transfer of Property Act. With a view to defeat the proceedings, on 18.03.2004, the original owners alienated the suit land by a registered sale deed in favour of the petitioner of Special Civil Application No. 5315 of 2020. Pending the suit, interim injunction to the applicant was refused. However, between the year 2004 and 2012, when the suit was dismissed, development permissions were sought for the Final Plot No. 56-A, the plot in question and 56-B. On 23.12.2011, after the dismissal of the suit, when the First Appeal was preferred by the Page 13 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 applicant herein, this Court by an order of 23.12.2011, granted injunction to the applicant in respect of the vacant portion of land where the present towers were not constructed on the condition of the applicant depositing 1 crore and furnishing a bank guarantee of 3 crores. On a Special Leave Petition being preferred on 27.04.2012, the Hon'ble Supreme Court was pleased to reduce the amount from 3 crores to 1 crore and the injunction granted on 23.12.2011 which was up to 31.01.2012 was extended while extending the time to furnish bank guarantee by four weeks'. The first appeal though was dismissed on 24.09.2013, Special Leave Petitions were filed, wherein, these orders were passed. The applicant deposited the bank guarantee amount on 24.05.2012.
4.4 Despite there being an injunction by the Hon'ble Supreme Court, wherein there was a specific mention as in the order of the first appeal, the petitioner of Special Civil Application No. 5315 of 2020 Laxmanbhai Jalu, applied for revised development permission wherein an affidavit on 21.05.2012 was filed making a false statement declaring that there was no order of stay / status quo operating Page 14 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 upon the lands in question. He would rely on pages 148 to 152 of Special Criminal Application No. 544 of 2019 and read the contents of the affidavit so filed. This false declaration, therefore, not only made by the petitioner of Special Civil Application No. 5315 of 2020 Laxmanbhai Jalu was incorrect and relying on this false affidavit, development permission was granted on 21.03.2013. The First Appeal was partly allowed on 24.09.2013. 4.5 On a challenge made to the order of the First Appeal by the applicant as well as by the petitioner of Special Civil Application No. 5315 of 2020 on 12.09.2014, the Hon'ble Supreme Court was pleased to record a statement on behalf of the developer Laxmanbhai Jalu that no more construction is to be made on the subject land and as regards B-1 and B-2 although construction is completed, finishing work is to be done. He would submit that in view of the material misrepresentation made by the petitioner, not only did the Corporation grant development permission, but rightly rejected the request for Building Use Permission because Building Use Permission if granted, would amount to permit third party purchasers of Page 15 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 the flats in question to occupy the same creating equities in their favour who were third parties even to the pending Special Leave Petition in the Hon'ble Supreme Court. 4.6 Mr.I.H.Syed, learned Senior Advocate, would submit that the judgments relied upon by Mr.Shalin Mehta, learned Senior Advocate, in context of N.A.Permission with regard to the provisions of Section 65 of the Gujarat Land Revenue Code whereas in context of development permission and Building Use Permission if granted, would amount to creation of third party rights / interests and would be counter productive to Section 263 of the G.P.M.C Act by permitting the occupants to occupy the flats on completion of construction when the dispute pertaining to the land itself is at large before the Hon'ble Supreme Court.
4.7 Mr.I.H.Syed, learned Senior Advocate, would therefore press for the prayers in the Special Criminal Application with regard to a direction being sought to the Surat Municipal Corporation to prefer complaints against the petitioner of Special Civil Application No. 5315 of 2020 in accordance with Section 195(1) of the Criminal Page 16 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 Procedure Code.
5 Mr. Kaushal Pandya, learned advocate appearing for the Surat Municipal Corporation would support the orders of denying Building Use Permission to the petitioner (of Special Civil Application No. 5315 of 2020) on the following grounds. He would submit as under:
5.1 He would submit that though the original owner had applied for and granted development permission and also the petitioner had applied for and had been granted revised development permissions on the basis of application made by the petitioner through his engineer and architect, it was so granted on an undertaking filed by the petitioner on 05.04.2012 that no litigations were pending or no interim relief was granted in the litigations.
It is in this context that the communication relied for the development permissions by Mr.Shalin Mehta, learned Senior Advocate, has to be read.
5.2 Mr. Kaushal Pandya, learned advocate, would submit that the deeming approval relied upon by Mr.Shalin Mehta, learned Senior Advocate, under sub-section 2(b) of Section Page 17 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 263 of the Act will not be applicable. He would invite the attention of the Court to page 88 of the petition to submit that on 03.01.2019, Building Use Permission was specifically rejected. In fact, despite such rejection, the petitioner continued to alienate the flats of towers B-1 on and B-2 to the occupiers as a result of which notices had to be issued on 25.07.2019. Flats were sealed in exercise of powers under Section 268 on 31.12.2019 which was a subject matter of challenge in Special Civil Application No. 194 of 2020 and Special Civil Application No. 4943 of 2020 which petitions have been withdrawn. Despite the rejection of the Building Use Permission on 03.01.2019, it was found by the Corporation that in the pending litigations before the Hon'ble Supreme Court which are related to the land upon which the buildings are constructed, the petitioner had made misrepresentations to the Corporation and it was on this count that the impugned order dated 24.02.2020 had been passed by the Corporation. The Corporation was not a party to this proceedings, which was, however, brought to the notice of the Corporation by the Special Criminal applicant. Page 18 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022
C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 5.3 The petitioner was fully aware of the pendency of the litigations and the injunctions, despite which he sought to alienate the flats and created third party rights. 5.4 Mr.Kaushal Pandya, learned advocate, would rely on the decision of the Hon'ble Supreme Court in the case of Chanda C Kadam vs. Additional Collector & Competent Authority, reported in 2013 (16) SCC 371. Granting of Building Use Permission would amount to creating third party rights without they being in knowledge of the pending litigation, and therefore, the Building Use Permission has rightly been refused.
6 Having considered the submissions made by the learned advocates for the respective parties and the facts narrated hereinabove, it would evidently make it clear that the Final Plot No. 56-A in question is embroiled in a web of litigations. It would be in the fitness of things to reiterate the history of litigations with the relevant dates which are as under:
6.1 The original owner of the land was one Dayakorben Maganbhai Patel of Final Plots Nos. 56-A and 56-B. These Page 19 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 plots were sold, or atleast an agreement to sell was entered into by Babubhai Nadiyadra an applicant of Civil Application No. 2 of 2020 in SCA No. 5315 of 2020 and Special Criminal Application No. 544 of 2019 on 13.08.1999. Aggrieved by the dishonoring of this agreement to sell, Babubhai Nadiyadra had filed a Special Civil Suit No. 15/2004 before the learned Additional Senior Civil Judge, Surat, seeking specific performance of agreement to sell. Despite the pending litigation and registration of lis pendens by Babubhai on 23.01.2004, the original owner applied for development permissions for constructing tenaments on 18.08.2004 which was granted on 20.08.2004. In the interregnum, it appears that the original owner sold plot No.56-A to the petitioner on 18.03.2004 through a registered sale deed. The subsequent owner of the plots, applied for development permission to construct high rise buildings, which were granted in the year 2006-2007 respectively. Building Use Permission for Tower 'C' was granted on 08.12.2008. In order to undertake constructions of Towers "B-1" and "B-
2", the subject matter of the present petitions, the Page 20 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 petitioner applied for revised development permission on 05.04.2012. Though interim injunctions were refused pending the civil suit at the hands of Babubhai Nadiyadra, on an Appeal From Order filed by him before this Court, where the petitioner was a party, it was the case of the petitioner that so far as Final Plot No. 56-A is concerned, it was only Tower-"C" that was constructed, Tower "A" was only up to the second floor. There was no construction with respect to the Tower "B-1" and Tower "B-2". It was under these circumstances, that a broad consensus was arrived at in the Appeal from Order and the Appeal from Order was disposed of. It will be relevant to reproduce paras 3 to 5 of the order as under:
"3. It is an admitted position that the remaining portion of Final Plot No.56-A is concerned, the same is open land inclusive of there is no construction with respect to construction of Tower B/1 and Tower B/2. There is a broad consensus between the learned advocates appearing on behalf of the respective parties more particularly appellants herein and the respondent No.5 purchaser that let the third and fourth floor of Tower-A be permitted to be completed by the respondent No.5 purchaser and there shall not be any further construction on the Tower-A as well as Tower B/1 and Tower B/2, and that any further transfer with respect to flats in Tower-C, the intending purchaser shall be informed by the respondent No.5 with respect to the pending proceedings/suit, and that any further transaction Page 21 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 would be subject to the ultimate outcome of the suit in question. It is also agreed between the respective parties that there shall not be any transfer in any manner whatsoever any of the construction/flats of Tower-A. It is also further agreed by the parties that there shall not be any further transfer of plots so far as Final Plot No.56- B is concerned if there are any plots yet to be sold. Respondent No.5 who is personally present in the Court has filed an undertaking to the aforesaid effect.
4. Shri B.S.Patel, learned advocate appearing on behalf of the appellants has stated under the instructions from his client that he is agreeable to the above.
5. Under the circumstances, the present appeal from order is disposed of and the respondent No.5 is directed to act as per the undertaking dated 22.10.2008 which is directed to be taken on record. The impugned order passed by the learned 2nd Additional Senior Civil Judge, Surat passed below Exh.5 in Special Civil Suit No.15 of 2004 is hereby modified to the aforesaid extent. On furnishing the list of the transferees of the plots in Final Plot No.56- B as well as transferees of flat owners of Tower-C, it will be open for the appellants-original plaintiffs to submit the application before the learned trial court for joining them as party defendants in the suit and/or other applications for consequential relief, the same shall be considered by the learned trial court. It is observed that the aforesaid order is passed considering the broad consensus between the respective parties and their learned advocates and this Court has not considered the matter on merits of the case.
In the facts and circumstances of the case, the learned trial court is directed to decide and dispose of the suit, as expeditiously as possible, but not later than 31st March, 2010. The parties to complete the pleadings within a period of three months from Page 22 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 today. All concerned are directed to cooperate the learned trial court in early disposal of the suit within the stipulated time as stated above."
6.2 Admittedly, therefore, the present petitioner was conscious of the fact of the pending proceedings esentially in context of Towers "B-1" and "B-2". There was no construction to be made as recorded. 6.3 Though the civil suit of the plaintiff Babubhai Nadiyadra was dismissed on 18.04.2011, on First Appeal being filed being First Appeal No. 1643 of 2011, an interim order was passed by this Court, which is being interpreted by both the parties according to their perception. Reading of the order, particularly relevant portion at paras 16 to 19 reads as under:
"16. So far the vacant land is concerned, which is not in possession of the defendant Nos.6 to 71, we are of the view that the defendants should be restrained from changing the nature and character of the same during the pendency of the appeal, however, on condition that the plaintiffs will either deposit a sum of Rs.1 crore with the learned Registrar General of this Court or in the alternative, will give a Bank Guarantee of Rs.3 crore and will keep the said Bank Guarantee alive during the pendency of the appeal. If the plaintiffs decide to avail of the first option given to them, i.e., the deposit of money, the learned Registrar General will deposit the Page 23 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 said amount of Rs.1 crore in any nationalised bank in a short term deposit and will go on renewing the same until further order of the Court.
17. In view of above deposit or security, if this appeal is ultimately dismissed, this Court may decide to pay compensation for the delay suffered by the defendants for this injunction order in the matter of construction over vacant land out of the aforesaid amount or the security that would be deposited by the appellant.
18. Let there be an unconditional order of injunction in respect of vacant portion of land as indicated above for a period till January 31, 2012. If within the aforesaid period, the plaintiffs either deposit a sum of Rs.1 crore or give a Bank Guarantee to the extent of Rs.3 crore, the interim order will continue in respect of vacant land subject to the above observations.
19. Let the hearing of the appeal be expedited. The appellants are directed to prepare eight copies of the informal paper-book containing all relevant papers used before the lower Court within four weeks from the date of service of notice of arrival of the lower Court record upon the learned advocate for the appellants. In default of filing of such paper-books within the aforesaid period, this appeal will stand dismissed. Parties are at liberty to mention for early hearing of the appeal.
Rule is made absolute accordingly. There shall be, however, no order as to costs."
6.4 Though the injunction on the land, i.e. vacant portion on which now the Towers "B-1" and "B-2" are Page 24 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 constructed was operating till 31.01.2012, which the petitioner would want the Court to read, when a challenge was made to this interim order by the applicant of Civil Application No.2 of 2020 Shri Babubhai Nadiyadra, the Hon'ble Supreme Court on 27.04.2012, passed the following order:
" We have heard Mr.Ashok H. Desai, learned senior counsel for the petitioners and Mr.C.A.Sundaram, learned senior counsel for the respondent No.5. Special Leave Petition is dismissed. However, in paragraph 18 of the impugned order the expression "or give a Bank Guarantee to the extent of 3 crore" shall stand modified as "or give a Bank Guarantee to the extent of one crore".
Further time of four weeks is granted to the petitioners for compliance of the direction contained in paragraph 18 of the impugned order. The High Court is requested to expedite the hearing of the First Appeal."
6.5 Reading the aforesaid order would indicate that time to comply with the order and the directions contained in para 18 were extended for a period of four weeks. The stay, therefore, which according to the petitioner stood expired on 31.01.2012 was infact extended and the injunction operated.
6.6 Despite this, when an application for revised Page 25 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 permission was made, an affidavit dated 21.05.2012 was filed by Laxmanbhai Jalu, the petitioner, for development permission to construct Towers "B-1"
and "B-2". This was the construction which was sought to be made on the vacant land. Reading the affidavit dated 21.05.2012, (pages 148 to 152 of the Special Criminal Application No. 544 of 2019) would indicate that the petitioner had made a statement that there is no order of Stay / Status quo operating upon the land in question. Evidently this was a false statement. The injunction which was granted by the First Appellate Court on 23.12.2011 continued to operate till the Appeal were so dismissed on 24.09.2013. However, the interim order of the Hon'ble Supreme Court of 27.04.2012 which is reproduced hereinabove should have been disclosed as the injunction vide order dated 27.04.2012 was operating on the date of filing of the affidavit i.e. 21.05.2012.
6.7 The arguments of Mr.Shalin Mehta, learned Senior Advocate, that on the dismissal of the appeal, Page 26 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 the order dated 23.12.2011 would merge is misconceived.
6.8 On 12.09.2014 also when the matter was heard before the Hon'ble Supreme Court, the learned counsel for the present petitioner made a statement that the entire FSI of the subject plot has been consumed and now no more construction is to be made on the subject land as regards B-1 and B-2 Towers and although the construction is completed, finishing work is to be done. This was again a false statement made knowing fully well that the development permission itself was on the basis of a false affidavit.
6.9 Admittedly, the litigations before the Hon'ble Supreme Court in context of the lands in question, including Final Plot No. 56-A on which Towers "B-1"
and "B-2" are pending final adjudication. Even while not entertaining the First Appeal of Babubhai Nadiyadra, the Division Bench of this Court had strongly deprecated the conduct of the present petitioner.
Page 27 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 6.10 Mr.I.H.Syed, learned Senior Advocate, rightly pointed out this conduct by reading paragraph 56 of the judgment and order dated 24.09.2013 in First Appeal No. 1643 of 2011. It will be in the fitness of things to reproduce paragraph 56 thereof, which reads as under:
"56. We may now consider the aspect of conduct on the part of the defendants and more particularly defendants No.1 to 4 and defendant No.5, which will have the relevance in exercise of the discretion and also for exemplary damages and/or cost. Such circumstances, can be narrated as under:-
(a) Defendants No.1 to 4 prior to the expiry of the period of four years by non-discharge of statutory obligation, not only committed breach of the contract, but decided not to sell the land to the plaintiffs and entered into partnership deed with Shri Shankerbhai on 30.1.2001 by execution of the document at Exh. 264;
(b) The suit was filed by the plaintiffs against defendants No.1 to 4 on 17.1.2004 and the lis pendens to that effect for application of Section 52 of the Transfer of Properties Act was registered on 23.1.2004. Once the lis pendens was registered, the person, who is to purchase the property is put to notice about the pendency of the suit through a public document by registration thereof. It has further come on evidence that the public advertisement was also issued by the plaintiffs showing pendency of the suit and the rights being agitated based on the agreement to sell in the competent Court. In spite of the aforesaid lis pendens duly registered with the SubRegistrar and the Page 28 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 defendants No.1 to 4 and also defendant No.5, who is purchaser of the property duly put to notice through registration of the lis pendens by overreaching the judicial process sale deed dated 20.1.2004 has been executed by defendants No.1 to 4 in favour of the defendant No.5, so as to create not only obstacle or hindrance in the proceedings of the suit, which had already commenced but through sale deed on March 20, 2004, it has been attempted to frustrate the suit. The surprising aspect is that in the sale deed dated 20.3.2003 the sale consideration in favour of defendant No.5 is said to have been paid of Rs.4 lac. Whereas prior thereof, in another suit No.43 of 2004 filed by defendant No.5 against defendants No.1 to 4, a statement on oath has been made by defendant No.5, who was plaintiff therein, that the land is agreed to be purchased by him for the total consideration of Rs.77,63,661/-, out of which he has already paid the amount of Rs.60 lac until the date of the suit and the remaining amount of Rs.17,63,761/- is to be paid. If the consideration paid was of Rs.77,63,661/-, defendant No.1 to 4 could not have stated in the sale deed that the total consideration received by them is of Rs.4 lac only. This shows that the sale deed has been executed by the defendants No.1 to 4 and the sale deed is got executed by defendant No.5 to frustrate the rights of the plaintiffs in the land based on the agreement to sell between the plaintiffs and defendants No.1 to 4;
(c) The oral evidence led with documentary evidence produced by Defendant No.5 show that as per defendant No.5, total sale consideration paid is of Rs.77,63,611/-. This shows that a manipulation is made by defendant No.1 to 4 in collusion with defendant No.5 by declaring a consideration falsely of Rs.4 lac as against Rs.77,63,661/- before public Page 29 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 authority of Sub-Registrar.
(d) The agreement to sell between defendants No.1 to 4 and defendant No.5 has come on record at Exh. 264 and as per the said agreement to sell the last page shows the payment and the receipt thereof. As per the receipt up to 5.11.2003, the amount of Rs.60 lac was paid to defendants No.1 to 4 by defendant No.5 and the amount of Rs.6 lac on 10.12.2003, Rs.6 lac on 8.1.2004, Rs.5,63,761/- on 12.2.2004, total Rs.17,63,761/- was already paid by defendant No.5 to defendants No.1 to 4 on or before 12.2.2004, whereas a false statement is made in the proceedings of Special Civil Suit No.43/2004 preferred by the defendant No.5 against defendants No.1 to 4, on 20.2.2004, i.e. the date on which the suit is filed, that defendant No.5 is yet to pay the amount of Rs.17,63,761/-. A show is made that full consideration is not paid, though defendant No.5 had already paid the balance consideration to defendants No.1 to 4 as per Exh. 264. The most relevant and pertinent aspect is that not only false statement on oath has been made by defendant No.5 at paragraph 2 of the plaint as well as at paragraph 2 of the application for temporary injunction, but has made the said statement upon verification even in the record of proceedings of Special Civil Suit No.43 of 2004.
(e) The aforesaid shows that in the proceedings of Special Civil Suit No.43 of 2004 a show is made as if a dispute exists between defendant No.5 and defendants No.1 to 4 for specific performance of the contract and pending the suit the aforesaid sale deed is got executed by defendants No.1 to 4 in favour of defendant No.5, that too, by showing the bogus amount of Rs.4 lac as the sale consideration as against the real consideration of Rs.77,63,661/-. Page 30 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022
(f) In our view, the aforesaid circumstances clearly goes to show that the defendants No.1 to 4 and defendant No.5, in utter disregard to the seriousness of the Court proceedings, have taken the Court proceedings for a jolly ride, not only by frustrating the rights of the plaintiffs in the suit, but have created a situation, which results into frustrating the Court proceedings and that too, in open defiance to the law by making false declaration before the Court in the proceedings of Special Civil Suit No.43/2004 and also before a public authority, SubRegistrar when the aforesaid sale deed has been executed on 18.3.2004.
(g) Apart from the above, the agreement to sell between defendants No.1 to 4 and defendant No.5 has come on record at Exh.264 and in the original document, notary Kalpana C. Vyas has stated as signed before her on 7th September, 2003, whereas the plaintiffs' witness Kiritkumar Maganlal Patel, in his cross-examination dated 3.3.2011 in the present suit has stated on oath that the said agreement to sell was only signed and not notarized and he has specifically denied any incident of going before the notary had taken place. Either the statement on oath by Shri Kiritkumar Maganlal Patel - Exh. 224, witness on behalf of defendants No.1 to 4, in his crossexamination, is false or document produced at Exh. 264 for showing the notarization of signature before the notary is fabricated.
(h) In addition to the above, even if the matter is considered in light of the evidence produced by defendant No.5 at Exh. 262 and document produced in support thereof with the evidence of Harjibhai Muljibhai Gadiya on behalf of the remaining defendants at Exh. 342 - 349, the same is also in doubtful circumstances, Page 31 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 inasmuch as in September 2003, the T.P. Scheme was not finalized and it was at draft stage. Even if we consider the statement made at bar that the draft scheme was submitted to the State Government, the receipts for sale of the land of so-called Hardik Park specifically mentioned T.P. Scheme No.46, Final Plot No.56B. Such could not be printed until T.P. Scheme was finalized. If T.P. Scheme, in any case, was not finalized, it may mean that the receipts were prepared after the T.P. Schemes were finalized, but the same is back-dated. Not only that but there is over-writing in the year in the original receipt at Exh.342 and Exh. 349, which are stated to have been issued in favour of Maduben Hirjibhai Gadiya.
(i) The land in question is converted for nonagricultural use of residence as per the permission granted on 24.8.2005. The development permission is granted by Surat Municipal Corporation only on 28.12.2006 for construction of the plan on Plot No.56A. Part payment made of the flats as if the booking is already made prior to the date of the suit, in our view, are the circumstance which clearly go to show that all attempts are made in collusion with other remaining defendants, who are stated to be allottees of the plots or flats, as the case may be, to frustrate the present proceedings for specific performance of construction and irreversible situation is created."
6.11 Even paragraphs 57 and 58 also when read as reproduced under would indicate that the Court observed that the present petitioner - defendant No.5 in the suit had made false statements in the Page 32 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 Court proceedings and the principle of lis pendens should squarely apply. Paras 57 and 58 reads as under:
"57. Considering the matter in either way, we do find that the trial Court could not ignore the aforesaid important aspect and such conduct on the part of the defendant No.1 to 4 in collusion with defendant No.5 calls for appropriate penalty and also action against the person concerned.
58.We do find that if the aforesaid facts and circumstances are considered, it can be said that after the suit was filed defendants No.1 to 4 in collusion with defendant No.5 and remaining defendants have undertaken all actions to frustrate the Court proceedings so as to render them infructuous. Not only that but defendants No.1 to 4 as well as defendant No.5 have made false statement in the proceedings of the Court as well has have gone to the extent of producing the fabricated record of a notarized document before this Court. We find that the principle of lis pendens should squarely apply as provided under Section 52 of the Transfer of Properties Act, so as to make the property available for recovery the amount of compensation."
6.12 The judgments relied upon by the learned counsel for the petitioner are in context of N.A. Permission under Section 65 of the Gujarat Land Revenue Code. They would not be applicable to the facts of the case. Admittedly, by making a false Page 33 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 declaration not only were the flats constructed for which development permission was sought and a revised one on the basis of a false affidavit dated 21.05.2012 granted stating that no stay or injunction operated, when in fact, reading the order dated 27.04.2012 of the Hon'ble Supreme Court makes it clear that the injunction which was initially granted pending the First Appeal operated and was still in force. Despite the Building Use Permission having been rejected in the first round of January 2019, the petitioner alienated flats in favour of third party occupiers as a result of which the Corporation had to issue Notice on 25.07.2019 and take action of sealing the building on 31.12.2019. This had prompted the owners to come forth and file Special Civil Application No. 194 of 2020 and 4943 of 2020 which have subsequently been withdrawn. 6.13 Disputes regarding title and interests qua the land upon which the subject premises i.e. Towers "B-1" and "B-2" are constructed is pending before the Hon'ble Supreme Court. N.A.Permissions Page 34 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 which were the subject matter of the decisions relied upon by Mr.Shalin Mehta, learned Senior Advocate, cannot be relied upon in the context of Building Use Permissions because such permissions / occupancy certificates would tantamount to give the occupiers right to occupy flats and create third party interests in properties by purchasers who may be unknowingly made parties without their knowledge about the litigation pending before the Hon'ble Supreme Court. The Corporation being a statutory authority, therefore, acted in public interest in denying Building Use Permission to the petitioner by the impugned order dated 24.02.2020.
7 Special Civil Application No. 5315 of 2020 is accordingly dismissed. Now, we, therefore, are concerned with the prayers made by the petitioner of Special Criminal Application No. 544 of 2019 and 4824 of 2019. In the earlier part of the decision, the prayers have been reproduced. The Jahangirpura Page 35 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 Police on a request made by the Corporation carried out investigation and a report has been filed by the Jahangirpura Police on 13.12.2018 which is a part of the affidavit-in-reply filed by the petitioner to the civil application for joining party. Reading of the report would indicate that the Police Inspector after carrying out necessary investigation came to the conclusion that the nature of the allegations in the complaint are of civil nature and the proceedings are pending before the parties in the Hon'ble Supreme Court. Even the Real Estate Regulating Authority (RERA) has dismissed the application of the petitioner on 06.02.2020. The Vigilance Commission has also accordingly passed an order on 20.12.2018.
8 Having considered the factual narratives on behalf of the applicant of the Special Criminal Application and based on report of the Police Inspector and the events subsequent thereto, the Criminal Applications are not entertained and are Page 36 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022 C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022 accordingly dismissed.
In view of dismissal of the main matters, civil applications also do not survive and stand disposed of, accordingly. Interim relief, if any, stands vacated.
(BIREN VAISHNAV, J) Bimal FURTHER ORDER After the pronouncement of judgment, Mr.Shalin Mehta, learned Senior Counsel, requested that interim relief granted earlier, may be extended. The said request is rejected.
(BIREN VAISHNAV, J) Bimal Page 37 of 37 Downloaded on : Wed Jan 12 17:07:59 IST 2022