Gujarat High Court
Sanjivkumar Pravinkumar Shah & vs State Of Gujarat & 5 on 4 April, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/3544/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3544 of 2016
With
CIVIL APPLICATION NO. 2681 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3544 of 2016
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SANJIVKUMAR PRAVINKUMAR SHAH & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR DEVEN PARIKH, SENIOR ADVOCATE for MR SP MAJMUDAR, ADVOCATE for the
Petitioner(s) No. 1 2
MR. HJ KARATHIYA, ADVOCATE for the Petitioner(s) No. 1 2
MR V.R.JANI, AGP for the Respondent(s) No. 1
MR DEEP D VYAS, ADVOCATE for the Respondent(s) No. 2 3
NOTICE SERVED for the Respondent(s) No. 3 4
NOTICE UNSERVED for the Respondent(s) No. 6
MR MIHIR JOSHI, SENIOR ADVOCATE FOR SANDEEP SINGHI, ADVOCATE WITH MR.
SHAINIK BHATT, ADVOCATE SINGHI & CO, ADVOCATE for the Respondent No. 5
UNSERVEDREFUSED (N) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 04/04/2016
ORAL ORDER
1. Draft amendment is allowed.
2. Heard Mr. Deven Parikh, learned Senior advocate assisted by Mr.S.P.Majmudar, learned advocate for the petitioners, Mr.V.R.Jani, learned AGP for respondent State, Mr. Deep D. Vyas, learned advocate for respondent Nos. 2 and 3 and Mr. Mihir Joshi, learned senior advocate assisted by Mr. Saneep Singhi learned advocate for respondent No.5.
3. Having heard at length learned counsel appearing for the concerned parties, I am of the opinion that the matter requires Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER consideration. Hence, Rule returnable on 28.06.2016. Mr.V.R.Jani, learned AGP waives service of notice of Rule on behalf of respondent State, Mr.Deep Vyas, learned advocate waives service of notice of Rule on behalf of respondent Nos. 2 and 3 and Sandeep Singhi, learned advocate waives service of notice of Rule on behalf of respondent No.5.
4. As far as interim relief is concerned, I have heard learned counsel appearing for the respective parties, considered the documentary evidence produced on record as well as the affidavitinreply filed by the concerned respondents.
5. The brief facts arise from the record are as under:
That the petitioners, who had purchased two flats in the apartment known as 'Ratnamani Apartment" in the society namely the Democratic Cooperative Housing Society Ltd. respondent No. 6 (hereinafter referred to as 'the Democratic Society') in the year 2005 from the original owner. The said democratic society was constructed at Jodhpur (Vejalpur Sim Survey No. 217), Old Survey No. 123, T.P.Plot No. 5, Final Plot No. 21, Ahmedabad.
6. It is the case of the petitioners that the respondent No. 5 the Mahalaxmi Cooperative Housing Society (hereinafter referred to as 'the Mahalaxmi Society') is the owner of the Final Plot No.19 of the same area intended the purchase the entire society i.e. the Democratic Society. Since the petitioners had objections against the selling of this property, the Mahalaxmi Society in connivance with other members of the Democratic Society, purchased the said property from those persons, who were never owner of the said two flats since the petitioners had never sold the flats to the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER anybody through any power of attorney holder, as claimed by the Mahalaxmi society. It is also the case of the petitioners that a resolution was passed by the Democratic Society on 11.09.2013 behind the back of the petitioners that they have agreed to sell the property. Having come to know that their properties as alleged to have been purchased by the Mahalaxmi Society, the petitioners inquired and it was found that one Sejalben Gopalbhai Shah has created a forged and bogus power of attorney of the petitioners and in turn, sold the property to the Mahalaxmi Society.
7. Having come to know about the said aspect, the petitioners preferred Special Civil Suit Nos. 750 of 2013 and 751 of 2013 in the Court of learned Senior Civil Judge, Ahmedabad (Rural) and has prayed that the decree may be passed that the sale deed is bogus one and the said transaction having taken place at the instance of the said power of attorney holder is illegal and void. The petitioners have also filed an FIR being C.R.No.I 17 of 2014 with Satellite Police Station, Ahmedabad on 17.1.2014 against the said persons namely Sejalben Gopalbhai Shah and her relatives. Initially, stay was granted by the Civil Court, which was continued. Meanwhile, the petitioners also requested the Ahmedabad Municipal Corporation not to enter the name of anybody in the record of the Corporation. It is also the case of the petitioners that though the stay was granted, the Ahmedabad Municipal Corporation issued Rajachitthi (development permission) on 30.7.2014 as if the Final Plot Nos. 19 and 21 were amalgamated. The petitioners made several representations to the Ahmedabad Municipal Corporation, however, the same came to be ignored. Hence, the petitioners preferred a wrti petition being Special Civil Application No. 15900 of 2015 before this Court, Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER which came to be disposed of by oral order dated 14.10.2014 directing the Corporation that petitioners shall make representation to the authority and accordingly, the petitioners made representation dated 25.11.2014 to the Ahmedabad Municipal Corporation, which has been rejected by the Ahmedabad Municipal Corporation. Meanwhile, the authority considered the objections and did not grant additional FSI as far as 440 sq. mtrs. which belongs to the Democratic Society is concerned, upon which the petitioners were having two flats in the Ratnamani apartment.
8. Meanwhile, the Ahmedabad Municipal Corporation has granted revised plan submitted by the Mahalaxmi Society by oral order dated 23.09.2015, by which the said society was permitted to construct two additional floors.
9. It is also the case of the petitioners that in high handed manner, the respondent demolished the entire building i.e. Ratnamani Apartments which belong to the Democratic Society. Therefore, the petitioners filed another suit in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) being Special Civil Suit No. 179 of 2015 and 180 of 2015 against the said Sejalben Gopalbhai Shah as well as respondent No. 5 the Mahalaxmi Society.
10. The trial Court passed order dated 09.10.2015 below application Exh. 5 under Section 39 of the Code for interim relief restraining the Authorities not to pass any plan as far as Final Plot No. 21 which belongs to the Democratic Society is concerned. The said decision was challenged by way of filing Appeal from Order Nos. 295 of 2015 and 296 of 2015.
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11. It is also the case of the petitioners that though there are orders of the different Courts including this Court, the respondent authority has granted permission to construct additional two floors as if the Final Plot Nos. 19 and 21 are amalgamated and therefore, the permission granted by the Ahmedabad Municipal Corporation is required to be quashed and set aside. During pendency of this petition, the Mahalaxmi Society may not be permitted to construct further i.e. 5th Floor since initially the permission granted by the authority was upto five floors only. Since the stay order has been granted subsequent to scheme having been sanctioned, the construction has been carried out upto 5th floor.
12. The respondent society filed its affidavitinreply and has opposed any grant of relief as prayed for by the petitioners. The Ahmedabad Municipal Corporation has also filed affidavitin reply.
13. Mr.Deven Parikh, learned senior advocate assisted by Mr.S.P.Majmudar, learned advocate appearing for the petitioners would submit that the petitioners are the owners of two flats in the Ratnamani Apartment situated in the Democratic Society and they have never shown any interest in selling the property to anybody and therefore they have not consented to sell or transfer their flats. He would further submit that the Mahalaxmi Society as well as the Democratic Society in connivance with each other has created certain documents by which they have tried to establish that the property was sold by the present petitioners through their power of attorney, which is a fake one and the petitioners have already filed a criminal case as well as civil suit. He would further submit that a resolution dated 11.09.2013 Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER passed by the Democratic Society has been passed as if all the members have agreed to sell the property to the Mahalaxmi Society. He would further submit that though the Ahmedabad Municipal Corporation was fully aware about the objections raised by the petitioners as well as stay granted by the Court, the Ahmedabad Municipal Corporation ought not to have granted 'Rajachithhi' dated 23.09.2015 and subsequently dated 03.02.2016. He would further submit that the plans put up by the Mahalaxmi Society and approved by the Ahmedabad Municipal Corporation are on the surmises that both the plots have been amalgamated, which, in fact, is contrary to facts and the petitioners had never sold their flats to any other persons. He would further submit that the authority has included plot of 440 Sq. mtrs. which belongs to the Democratic Society and while passing plan, a common plot has been shown, which is required to be maintained under GDCR, is of the Democratic Society and therefore, the authority ought not to have approved plan permitting construction of additional two floors.
14. On the other hand, Mr.Mihir Joshi, learned senior advocate assisted by Mr. Sandeep Singhi learned advocate for the Democratic Society, has vehemently opposed this petition and submitted that the petitioners have challenged 'Rajachitthi' granted in favour of the society, which has been approved by the authority in accordance with law as well as the orders passed by the Civil Courts as well as by this Court. He would further submit that the Mahalaxmi Society is the owner of the Final Plot No. 19 admeasuring 8789 Sq. mtrs. while the Democratic Society is the owner of Final Plot No. 21 admeasuring 440 Sq. mtrs. He would further submit that all the members of the Democratic Society had Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER agreed to sell their properties and accordingly, several sale deeds were executed. He would further submit that the property have been purchased by the Mahalaxmi Society from the owner in whose favour the said sale deed was executed. He would further submit that the sale deeds are subject to challenge before the competent Civil Court and therefore, at this stage, the entire construction which is otherwise legal, cannot be stopped. He would further submit that initially the permissible FSI was granted @ 1:1.8, which was enhanced to FSI @ 4. However, the authority kept the whole additional FSI of Final Plot No. 21 admeasuring 440 Sq. mtrs in suspension. Therefore, he would submit that the authority has not committed any illegality as alleged by the petitioners. He would further submit that the Ahmedabad Municiapl Corporation has taken into consideration of all these factual aspects while permitting the society to construct additional two floors, which does not call for any interference. He would further submit that no construction is being made and has not been permitted by the Corporation on the disputed Final Plot No. 21 admeasuring 440 Sq. mtrs as well as no additional FSI has been granted qua the same area and accordingly, the plan have been sanctioned and therefore, the same does not call for any interference. He would further submit that the interim relief is required to be refused.
15. Mr. Deep Vyas, learned advocate for the Corporation would submit that the authority has not permitted the Mahalaxmi Society to construct anything on the Final Plot No. 21 which belongs to the Democratic Society and has further restrained the the democratic society keeping on hold admeasuring 440 Sq. mtrs the FSI @ 4. Hence, the authority is aware about pendency of the Civil Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER Suit between the parties and therefore, the authority has not committed any illegality in granting any permission for raising two additional floors since the respondents were entitled for FSI as per the Government notification.
16. In view of the above back ground, certain aspects emerges from the record are as under:
[i] That the two flats in 'Ratnamani Aparment' for which the petitioners claimed their ownership are already demolished and 5 storey building as per earlier sanctioned plan has already been constructed.
[ii] The Civil Suits are pending before the Civil Court and in my opinion that the Civil Court would decide the right, title and interest of the petitioners. I have also considered that the Corporation has directed the private respondent society to keep Final Plot No. 21 admeasuring 440 Sq. mtrs. open and upon the said piece of land, has not granted FSI @ 4. Additional two floors are granted and are measured as per the size of Final Plot No. 19 which belongs to the Mahalaxmi Society admeasuring 8798 Sq. mtrs. As far as the order dated 5.11.2015 passed in Appeal From Order Nos. 295 of 2015 and 296 of 2015 is concerned, this Court has confirmed the order passed by the trial Court, by which it was directed that the respondent authority shall not pass any plan as far as Final Plot No. 21 is concerned, upon which the Democratic Society has constructed 'Ratnamani' Apartment. Therefore, primafacie, in my opinion that the authority has not granted any permission to construct anything on Final Plot No. 21 which belongs the Democratic Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Apr 23 02:12:08 IST 2016 C/SCA/3544/2016 ORDER Society wherein the petitioners had two flats in Ratnamani Apartment admeasuring in all 140 Sq. mtrs, which have already been demolished.
17. However, without going into detail at this stage, in my opinion that the following order would meet the ends of justice:
[i] Till the final hearing of the present petition, the private respondent shall not construct any structure or alienate or hand over the possession to the third persons or create any right over of a piece of land Final Plot No. 19 admeasuring 440 Sq.mtrs.
[ii] Further construction made by the respondent shall be subject to the result of this petition.
[iii] Interim relief granted by oral order dated 03.03.2016 is hereby modified.
[iv] If respondent No. 5 creates third party interest in the newly constructed plot, they shall inform in writing that their rights would be subject to the outcome of the present petition.
18. A request to stay this order is hereby refused.
19. In view of the order passed in main matter being Special Civil Application No. 3544 of 2016, the present civil application does not survive and accordingly stands disposed of.
Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
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