Gujarat High Court
Bhavesh Chandubhai Thakrar & vs Mansinhbhai Kishabhai Chavda & 5 on 4 May, 2015
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/CA/4289/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 4289 of 2015
(FOR VACATING INTERIM RELIEF)
In
SPECIAL CIVIL APPLICATION NO. 3899 of 2015
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BHAVESH CHANDUBHAI THAKRAR & 1....Applicant(s)
Versus
MANSINHBHAI KISHABHAI CHAVDA & 5....Respondent(s)
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Appearance:
SR. ADVOCATE MR. SHALIN MEHTA with MR VIMAL A PUROHIT,
ADVOCATE for the Applicant(s) No. 1 2
MR AMAR D MITHANI, ADVOCATE for the Respondent(s) No. 5
MR ASHISH H SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 06/05/2015
ORAL ORDER
1. Rule. Learned Advocate Shri Ashish Shah waives service of notice of Rule for the Opponent No.1 and Learned Advocate Shri Amar Mithani waives service of notice of Rule for the Opponent No.5.
2. Present application is filed by the applicants original Respondent Nos.6 and 7 for vacating the interim relief granted by this Court vide order dated 10.03.2015 under Articles 226 and 227 of the Constitution of India on the grounds stated in the application, inter alia, that the petition suffers from vice of suppretio veri Page 1 of 12 C/CA/4289/2015 ORDER and suggesti falsi.
3. It is also contended that the petitioner has not stated the facts and in fact the petitioner has no locus standi to prefer this petition under Article 226 of the Constitution of India. The details have been stated with regard to the nature or the tenure of the land, the description with regard to the zone like residential zone and the nature of construction permissible under the law.
4. It is specifically contended that the petition under Article 226 is in the nature of Public Interest Litigation (hereinafter referred to as 'PIL' for short) and therefore considering the nature of averments and the prayers, the petition would not lie and if he desires to agitate his grievance, it may lie before the PIL Bench but not the petition under Article 226 of the Constitution of India.
5. The affidavitinreply is filed by the original petitioner opposing the Civil Application contending, inter alia, that there is no alternative efficacious remedy and in any case the alternative remedy always would not be a bar to file petition under Article 226 of the Constitution of India. The contentions have also been made with regard to the merits of the Page 2 of 12 C/CA/4289/2015 ORDER matter referring the nature of the zone or the tenure of the land.
6. Heard learned Senior Counsel Shri Shalin Mehta appearing with learned Advocate Shri Vimal Purohit for the applicants and learned Advocate Shri Ashish Shah for the Respondent No.1 and learned Advocate Shri Amar Mithani for the Opponent No.5.
7. Learned Senior Counsel Shri Shalin Mehta referred to the papers and submitted that the petition is not maintainable under Article 226 of the Constitution of India as there is efficacious alternative remedy available to challenge the impugned orders passed while exercising the powers under Section 6(B) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Development Act' for short). He pointedly referred to the provision of Section 6(B) of the Development Act. Learned Senior Counsel Shri Shalin Mehta also referred to the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others reported in 1998 (8) SCC 1. He further submitted that as observed in this judgment, if the petition falls in any of the criteria then the petition would be maintainable under Article 226 of the Page 3 of 12 C/CA/4289/2015 ORDER Constitution of India. He submitted that there would not be a bar for maintainability of the petition under Article 226 of the Constitution of India in spite of the alternative remedy. However, learned Senior Counsel Shri Mehta submitted that the petition does not fall in any of the criteria referred in the case of Whirlpool Corporation (Supra) viz:
(a) there is violation of fundamental rights,
(b) there is violation of rules of natural justice and/or
(c) the order is without jurisdiction.
8. Therefore, Learned Senior Counsel Shri Shalin Mehta further submitted that the order cannot be said to be without jurisdiction. He submitted that both the orders are appealable and therefore writ would not lie, as there is alternative remedy.
He referred to the background of the facts and submitted that in fact the locus of the petitioner to file petition under Article 226 of the Constitution of India is required to be examined, as he does not have any locus to file such petition. Learned Senior Counsel Shri Shalin Mehta submitted that the petition is more in the nature of PIL. He submitted that where a person may claim a locus standi as a public spirited person, then it will be Page 4 of 12 C/CA/4289/2015 ORDER treated as PIL and therefore the petition in the present form is not maintainable. He pointedly referred to page No.13 of the application and submitted that such a application/petition is not maintainable. He further submitted that perusal of the contentions itself would demonstrate the locus of the petitioner.
9. Learned Senior Counsel Shri Mehta also referred to the papers and particularly Government Resolution dated 07.06.2008 and also the nature of the land, which are produced on the record at AnnexureA and submitted that the tenure of the land is 'A' revenue free by custom. He also submitted that foot note describes 'A' as the Gamtal land. He pointedly referred to the Government Resolution dated 17.06.2008 and submitted that it has been clarified that if there is discrepancy in the Development Act and the Land Revenue Code, then such a land could be considered as Gamtal land. He submitted that the contentions which are raised by the petitioner are based on distorted facts and the interim relief may be vacated. Learned Senior Counsel Shri Mehta also referred to the fact that necessary permission has been granted. He submitted that it is not in dispute that not only a permission is granted by the Municipality, but the Town Planning Officer has also not raised any objection and he has also Page 5 of 12 C/CA/4289/2015 ORDER not disputed with regard to the tenure of the land. He, therefore, submitted that the interim relief may be vacated.
10. Per contra, learned Counsel Shri Ashish Shah appearing for the Opponent No.1 Original petitioner has referred to the background of the facts and tried to submit that the alternative remedy as provided under Section 6(B) of the Development Act cannot be said to be efficacious remedy. He also referred to the affidavitinreply filed to the Civil Application. Learned Counsel Shri Shah submitted that as stated in the Government Resolution dated 17.06.2008 even it is shown as Gamtal in the revenue record or the record of the Municipality. As per the provisions of the Development Act and GDCR it has to be examined and since the land in question is of the tenureA, no such commercial permission could have been granted. Learned Counsel Shri Shah has submitted that admittedly as stated in the application, the permission is sought for commercial development in the residential zone. He submitted that it is also not in dispute that it is in the residential zone and therefore, the matter requires consideration and the interim relief granted earlier, may not be vacated.
Page 6 of 12 C/CA/4289/2015 ORDER11. Learned Counsel Shri Shah further submitted that contentions with regard to locus standi can be examined in light of the observations made in the judgment of the Hon'ble Supreme Court reported in 2011 (3) GLH 335 in the case of Keshabhai Panabhai Solanki Vs. Dahyaji Babaji Thakor and Ors. Learned Counsel Shri Shah submitted that it is not merely pecuniary or personal injury, which would entitle a person to file the petition and therefore, the petitioner would be entitled to file the petition. He therefore submitted that interim relief may not be vacated.
12. In view of these rival submissions, whether the present application for vacating the interim relief under Article 226 of the Constitution of India can be entertained or not.
13. As could be seen from the background of the facts and the nature of the avernments, the petitioner has not been able to show any personal injury and it appears primafacie the petition is more in the nature of PIL. In any view of the matter, it is well accepted that normally the Court would decline to exercise the discretion under Article 226 when there is alternative remedy provided. Again alternative remedy always be a bar to exercise of Page 7 of 12 C/CA/4289/2015 ORDER discretion under Article 226, but nevertheless the broad guidelines/proposition has been laid down by the Hon'ble Apex Court that when the alternative remedy is available, the Court would decline to exercise such discretionary jurisdiction under Article 226 of the Constitution of India. The petitioner is claiming cancellation of permission granted under the Development Act. Further, the Authority concerned may examine the issue in background of the facts on proper scrutiny of the papers, both with regard to the tenure of the land showing permissible construction and the nature of construction for which the permission is applied.
14. It is in this context, a close look at the papers also requires when the application made by the Respondent No.1 and 7 for the commercial construction and the land is Gamtal, the regulations for the development produced on record at AnnexureE page 63, clearly provides that if the tenure of land is Gamtal, the nature of construction permissible would be as provided in Column No.2 and 3 for the residential zone. Column No.2 and 3 for residential zone refers the nature of construction permissible which includes the construction or the development of a commercial nature. Admittedly, permission has been granted Page 8 of 12 C/CA/4289/2015 ORDER by the authority. Therefore, as it was pointed out, initially when the Court has entertained the petition that commercial nature of construction is sought to be made in the residential zone, the clear picture has not been brought to the notice of the Court. Again, as rightly emphasized as referring to the case of Whirlpool Corporation (Supra), the alternative remedy is one aspect, which is required to be considered. It was submitted that it is a Rule or the guideline broadly evolved as Rule of Prudence rather than a matter of jurisdiction. Therefore, when the statutory remedy is available, the Court would relegate the parties to such remedy.
15. Further, a useful reference can also be made to the observations made in a judgment reported in (2014) 1 SCC 603 in the case of Commissioner of Income Tax & Ors. Vs. Chhabil Das Agrawal, wherein it has been also observed referring to the earlier judgment that if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance, then writ petition would not be entertained dehorse such statutory provisions.
16. Another facet of the submissions is with regard Page 9 of 12 C/CA/4289/2015 ORDER to the locus standi also requires to be considered. Though, the learned Counsel Shri Shah has tried to emphasize referring to the judgment reported in 2011 (3) GLH 335 in the case of Keshabhai Panabhai Solanki Vs. Dahyaji Babaji Thakor and Ors, that it may not be a personal injury when a person can file a petition. However, it is also required to be considered that whether the petitioner can be said to be a person aggrieved. Learned Counsel Shri Shah also tried to submit that even though he may not be a person affected directly but still he can be aggrieved person and therefore the petition would be maintainable, is required to be considered in background of the nature of relief prayed and the locus standi visavis the issue involved.
17. It is well settled that the concept of the PIL has been evolved with a much wider canvass. Any person aggrieved with regard to breach or violation of any statutory duty or statutory provision, any one can resort to such PIL. On the other hand if the proceedings are not in the nature of PIL for any group of action, then a individual has to show how he can be said to be aggrieved or affected party. If he is a aggrieved or affected party he can approach the Court by way of writ petition. Therefore, while examining such a issue of locus standi for Page 10 of 12 C/CA/4289/2015 ORDER petition under Article 226, it has to be considered as to whether he is a relevant party or affected by the decision or action of the Authority. However, if that is not so, then a person can file PIL for and on behalf of the aggrieved persons or for making the authority answerable to discharge the statutory duties. Again, therefore the concept of locus standi in PIL and in the writ petition would stand on a different footing. Therefore, it appears that the petitioner has not been able to show directly how he is aggrieved or affected party. Therefore, prima facie, it appears that the petition is in the nature of PIL.
18. It is in this background considering the broad guideline for grant of interim relief or the injunction on the basis of the broad principles like injury or the comparative hardship. In the opinion of this Court, the interim relief would have an adverse impact by granting the relief. Therefore, present Civil Application deserves to be allowed and accordingly stands allowed. Interim relief, which has been granted earlier, deserves to be vacated and accordingly stands vacated. Rule is made absolute.
19. Main matter is ordered to be listed for hearing in the first week of August, 2015.
Page 11 of 12 C/CA/4289/2015 ORDER(RAJESH H.SHUKLA, J.) FURDER ORDER After the order was pronounced, learned Advocate Shri P. S. Champaneri on behalf of learned Advocate Shri Ashish Shah requested for stay of the operation of the order vacating the interim relief, which is declined in the facts and circumstances. Therefore, the request is refused.
(RAJESH H.SHUKLA, J.) Tuvar Page 12 of 12