Gujarat High Court
Anant Gosalia Karta Of Anant Gosalia ... vs Chief Commissioner Of Income ... on 10 April, 2014
Bench: Akil Kureshi, Sonia Gokani
C/LPA/671/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No. 671 of 2012
In SPECIAL CIVIL APPLICATION No. 2483 of 2012
With
CIVIL APPLICATION No. 3990 of 2012
In
LETTERS PATENT APPEAL No. 671 of 2012
With
CIVIL APPLICATION No. 3954 of 2014
In
CIVIL APPLICATION No. 3990 of 2012
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ANANT GOSALIA KARTA OF ANANT GOSALIA (HUF) & 5....Appellant(s)
Versus
CHIEF COMMISSIONER OF INCOME TAXAHMEDABAD II & 2....Respondent(s)
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Appearance:
Mr PC KAVINA Sr Advocate with Mr DIPEN DESAI, ADVOCATE for the Appellants
Mr PAWAN A BAROT, ADVOCATE for the Respondent(s) No. 2 3
Mr NITIN K MEHTA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
10th April 2014
ORAL ORDER (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)
This Letters Patent Appeal is filed by the appellantsoriginal petitioners challenging the judgment of the learned Single Judge dated 1st March 2012.
Brief facts are that the petitioners had executed an agreement with the Page 1 of 6 C/LPA/671/2012 ORDER respondent no. 2 - a non trading association and the respondent no.3Sthapatya Shilp Builders. Under such agreement, the petitioners were to be allotted shops/offices in a commercial complex to be constructed by the said respondents on a land bearing Final Plot No. 711, 713 to 717, subplot no. 35, T.P.S No. 3 of Ahmedabad. This plot of land was purchased by the respondent no. 2 during an auction sale held by the respondent no.1 - Incometax Department. Construction as per the plans passed by the Municipal authorities was also carried out by the respondent nos. 2 & 3. It is the case of the petitioners that despite full payment, the shops/offices were not allotted to them by the said respondents. It also appears that the Incometax Department had not executed the sale deed in favour of the purchasers. All these issues were brought before this Court by the petitioners in the said petition, in which they prayed that the Court should issue a writ of mandamus to the respondent no.1 to execute the sale deed/conveyance deed for the said land in question in favour of the respondent no.2. It was further prayed that the respondent no.2 be thereafter directed to execute individual sale deeds/conveyance deeds in favour of the petitioners with respect to the offices/shops allotted to them. Rest were either interim or incidental prayers. These were the only two prayers made in the writ petition.
Learned single Judge by the impugned judgment held that writ petition Page 2 of 6 C/LPA/671/2012 ORDER was not maintainable. He gave his detailed reasons for coming to such a conclusion. He was of the opinion that the petitioners failed to point out what duty the respondent no. 1 had towards the petitioners, which he did not discharge. The petitioners had not indicated under which terms and conditions, the property was purchased nor could they point out under which provision of law, relief can be claimed against the respondents no. 2 & 3. The learned Judge also observed that the petitioners had not indicated the dates on which they entered upon the property, or what right would flow in their favour through the documents executed by them with the respondents no. 2 & 3.
During the pendency of this Letters Patent Appeal, interim orders came to be passed. During the course of such proceedings, it is an admitted position that the respondent no. 1Income Tax Department also executed sale deed in favour of the respondent no.2. To that extent, the grievance of the petitioners stand redressed. The only grievance therefore now that would survive is the action of the respondents no. 2 & 3 not executing the sale deeds in favour of the petitioners for the shops/offices allotted to them in the said scheme for construction of commercial complex.
Quite apart from the observations of the learned Single Judge, who found that the writ petition was not maintainable, in any view of the matter, at the present stage, no further order can be passed in Letters Patent Appeal. In Page 3 of 6 C/LPA/671/2012 ORDER the Letters Patent Appeal, we could pass such order as the learned Judge could have and ought to have passed. To the extent of directing the respondent no.1 Income Tax Department to execute the sale deed in favour of the respondent no. 2, the issue was debatable in law but maintainability of the writ petition would not be questionable. However, in the context of the second prayer and which now becomes the sole surviving prayer, in our opinion, the writ petition was simply not maintainable at the very outset. We may recall that such prayer was to direct the respondent no. 2 to execute individual conveyance deeds/sale deeds in favour of the petitioners and other office/shop owners of the complex with no extra cost to the petitioners and such other office/shop owners. Entire dispute was thus in the realm of private dispute between two individuals. The petitioners on one hand and the builders/developers on the other. In fact, for quite measure, the petitioners had also espoused the cause of other persons who had booked their offices and shops in the said complex. Admittedly, the respondents no. 2 & 3 are the private individuals and not the State within the meaning of Article 12 of the Constitution. The transaction between the petitioners and such respondents were even otherwise purely in the nature of private transactions with no element of public duty or discharging public functions. It was plain and simple contractual obligation arising out of private transaction between two individuals. Even if there was a breach on the part of Page 4 of 6 C/LPA/671/2012 ORDER one part or the other, the remedy would lie before the competent Civil Court. Writ petition under Article 226 of the Constitution would not be maintainable.
Learned counsel Shri Percy Kavina, however, submitted that the said respondents had given certain undertakings and this Court had passed interim orders giving directions to them to act in a particular manner. Appellants have therefore filed Civil Application No. 3954 of 2014 praying that the respondents no. 2 & 3 be directed to comply with the interim orders passed by the Division Bench of this Court and also to abide by the undertaking given by the respondent no. 2 on 17th July 2013.
If the said respondent or any of them have breached an undertaking given to this Court or not complied with the directions issued during the pendency of this Appeal, it would be open for the appellants to take a due contempt proceeding against them. However, when we find that the Letters Patent Appeal itself is not maintainable, we do not find it appropriate to examine such complaint of non compliance of the directions/undertaking, keeping the question of maintainability of the Letters Patent Appeal itself aside. Today, we have heard learned counsel for the appellants on this aspect of the matter and expressed our opinion in the earlier portion of this order.
To sum up, whether a writ petition as was originally filed should have been entertained or not and prayer directing the respondent no. 1 to execute the Page 5 of 6 C/LPA/671/2012 ORDER sale deed in favour of the respondent nos. 2 & 3 could have been granted or not are not germane any more in view of the developments pending this appeal whereby such prayer does not survive. However, when it comes to th sole surviving prayer of the appellantsoriginal petitioners, we are of the firm belief that the same cannot be entertained in a writ jurisdiction.
Resultantly, no further prayer can be granted in Letters Patent Appeal. The same is, therefore, dismissed.
Civil Applications are disposed of accordingly.
{Akil Kureshi, J.} {Ms. Sonia Gokani, J.} Prakash* Page 6 of 6