Gujarat High Court
Kavita K Bhojwani & vs Narayandas Sugnomal Maherchandnani & 2 on 23 June, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/3326/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3326 of 2014
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KAVITA K BHOJWANI & 1....Petitioner(s)
Versus
NARAYANDAS SUGNOMAL MAHERCHANDNANI & 2....Respondent(s)
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Appearance:
MR GAURAV K MEHTA, ADVOCATE for the Petitioner(s) No. 1 - 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 1 - 3
GOVERNMENT PLEADER for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 23/06/2014
ORAL ORDER
Heard Mr. D.P.Sanchela, learned advocate for the petitioner and Ms. S.K.Vishen, learned advocate for the respondent No.3 and learned AGP for respondent No.2.
2. In this petition, the petitioner has prayed, inter alia, that:-
"7(B) Your Lordships may be pleased to issue appropriate writ order or direction upon the respondent no.2 and 3 for not taking any action for demolishing the construction of flats D 2 and D 4 purchased by the petitioners.
(C) Your Lordships may be pleased to issue appropriate writ, order or direction directing the Page 1 C/SCA/3326/2014 ORDER concerned respondent authorities to issue notice to the petitioners, being directly affecting parties of any of the actions which may be taken by them and also to provide opportunity of hearing."
3. The petitioner is aggrieved by the proposed action by the respondents to demolish the illegal and unauthorized construction.
4. It appears that in a scheme of residential apartments named Shri Laxmi Balaji Status, the petitioner has purchased two apartments. The respondent authorities have, on inspection, found that certain construction put up by the developer (from whom the petitioner purchased the two apartments i.e. respondent No.1) is illegal and unauthorized and contrary to applicable building regulations. It further appears that the respondents, therefore, served notice to present respondent No.1 to remove illegal and unauthorized construction and in the event of failure, such construction would be demolished. It is against such proposed action that the Page 2 C/SCA/3326/2014 ORDER petitioner has taken out present petition.
5. Before proceeding further, it is necessary and appropriate to mention that the concerned developer (i.e. present respondent No.1) also has, in connection with the action proposed to be taken by the respondents, preferred two writ petitions, being Special Civil Application No.3245 of 2014 and Special Civil Application No.2925 of 2014. The said two petitions have been disposed of by way of two separate orders. It appears that present petition is taken out in aid of and to support the said two writ petitions.
6. So far as facts involved in present petition are concerned, the petitioner has averred, inter alia, that:-
"2. By way of this petition, the petitioners seeks to invoke extraordinary jurisdiction of the Hon'ble High Court of Gujarat vested under Article 226 of the Constitution of India and thereby prays to issue appropriate writ order or direction upon the respondent no.2 and 3 directing them for not taking any steps with regard to the demolition of block D of the Shri Laxmibalaji Status situated at Page 3 C/SCA/3326/2014 ORDER Adalaj, Dist: Gandhinagar. As a matter of fact, the petitioners are bonafide purchaseer of the residential flat bearing flat no.D-2 and D-4 of Shri Laxmi Balaji Status, Adalaj, Dist:
Gandhinagar and the same are purchased from the respondent no.1 herein. The petitioners have verify certain relevant documents like original Sale Deed of the land etc and thereafter purchased the said flat of Block D from the respondent no.1. It is submitted that recently on 19-2-2014, petitioners visited the said premises and they came to know that the electric connection of the said scheme is disconnected and furthermore, they came to know through a security person on the said scheme and therefore, after proper and detailed inquiry, petitioners came to know that there is some dispute amongst respondent nos.1, 2 and 3 with regard to impact fees. and therefore, petitioners humbly prays that as they are the bonafide purchaser of the flats bearing D-2 and D- 4 respectively and in view of that the total consideration of sale amount is already paid to the respondent no.1, they may not be punished by any of the Act of demolishing the flats of the said scheme without there being any fault/mistake part of the petitioners. Therefore, in view of this it is humbly pray that appropriate writ, order or direction upon the respondent no.2 and 3 for not demolishing block D of the said scheme.
3.2 It is stated and submitted that the petitioners have made full payment of the total sale amount of the said flats against which the respondent no.1 to issue receipts and allotment Page 4 C/SCA/3326/2014 ORDER letter also. Annexed hereto and marked as ANNEXURE
- A (colly) are copies of receipts and allotment letters given by the respondent no.1.
3.4 It is stated and submitted that, on 19-2-2014 itself, petitioners visited to see the development stage of their flats but shockingly and surprisingly they came to know that the electricity connection of the said scheme has been disconnected by the electricity company and further petitioners came to know from one security guard at the sight and upon inquiry, petitioners came to know that there is some dispute between respondent no.1, 2 and 3. It is further submitted that thereafter, the petitioners approached the respondent no.1 and came to know that there is a dispute regarding impact fee. Moreover, the respondent no.1 instructed petitioners to pay the impact fee before the competent authority and shown his readiness to execute the sale deed in favour of the petitioners after the payment of impact fee by the petitioners to the competent authority.
3.5 It is respectfully stated and submitted that in the agreement dated 19.02.2014 it is admitted by the respondent no.1 that a total amount of sale consideration is received by him and in view of this, petitioners are not ready to pay the impact fee. It is further submitted that, upon detailed inquiry and due investigation and after legal advice received from the advocate petitioners came to know that the respondent no.1 has filed writ petition in the Hon'ble High Court of Gujarat.
Page 5 C/SCA/3326/2014 ORDER Annexed hereto and marked as ANNEXURE - C is the copy of the status of the petition being SCA No.3245 of 2014. It is further submitted that the Hon'ble High Court (Coram: Hon'ble Mr. Justice A.J.Desai) was pleased to pass an order dated 26.02.2014. Annexed hereto and marked as ANNEXURE
- D is the copy of the order dated 26.02.2014 passed by this Hon'ble Court in SCA No.3245 of 2014.
3.7 It is respectfully stated and submitted that the petitioners had purchased said flats in good faith after verifying certain documents. It is further submitted that without there being any fault from the part of the petitioner, they may not be penalized by demolishing flats purchased by the petitioners in good faith and therefore also, the respondent no.2 and 3 may be directed not to take any steps with regard to demolition of said flats of block D of the said scheme constructed by the respondent no.1. It is further submitted that, as far as the impact fees are concerned it may be directed to respondent no.1 to pay the same before the competent authority in view of the facts that total amount of sale consideration is already paid to the respondent no.1 and the same is admitted by the respondent no.1 in agreement dated 19.02.2014 executed by the respondent no.1 in favour of the petitioners."
7. The above averments in the petition provide reason to believe or infer that present petition Page 6 C/SCA/3326/2014 ORDER is filed to support the above mentioned two writ petitions. The subject matter of present petition is the same scheme of residential apartments and the same proposed action, which are the subject matter of said two petitions. The difference between this petition and the said two petitions is that the said two petitions are filed by the developer whereas present petition is filed by one of the purchasers who seems to have purchased apartments in the said scheme.
8. Since the disputed scheme of residential apartments in both the schemes is the same, at this stage, it would not be out of place to take into account the details with reference to the alleged illegal construction mentioned in the reply affidavit filed by the respondent authorities in Special Civil Application No.3245 of 2014. In paragraph Nos.6 to 11, 13 and 14, the said reply affidavit in Special Civil Application No.3245 of 2014, the respondents have averred that:-
Page 7 C/SCA/3326/2014 ORDER "6. Adverting to the merits of the case, few dates are relevant to substantiate the controversy as regards the unauthorized development which has been undertaken by the petitioner. I respectfully say that the petitioner purchased the land vide an agreement to sale in the month of November 2009, followed by the registered sale deed executed on 7.8.2010 for land bearing survey No.829/paiki, sub-plot No.54/1/1 of final plot no.54/1, admeasuring 2372 sq. mtrs. The petitioner submitted an application seeking development permission for developing the aforesaid plot, exclusively for residential purpose.
In this behalf, the petitioner also submitted an undertaking dated 31.8.2010 inter-alia declaring that the petitioner will not carry out any construction in the common plot. Annexed hereto and marked as Annexure-I is a copy of the undertaking dated 31.8.2010 filed by the petitioner before the authorities along with the necessary plan.
7. I respectfully say that the petitioner was granted necessary development permission for residential purpose on 26.7.2011 in Form D, Rule 10 under the provisions of section 29 read with section 49 of Gujarat Town Planning and Development Act, 1976 ('the Act of 1976' for short). Pertinently, even the development permission was granted to the petitioner after the cut off date of 28.3.2011 as provided by virtue of the provisions of sub-section (4) of section 8 of the Act and thus, there arises no question of any protection available to the petitioner under the provisions of the Act. The said permission was limited to the construction, via.:
(i) Hollow plinth (for parking purpose),
(ii) Ground floor, first floor and second floor each consisting of 14 residential units,
(iii) Stair cabin.
It is pertinent to note that as per the condition No.35 of the development permission, the petitioner was not Page 8 C/SCA/3326/2014 ORDER supposed to effect any construction (i) in the common plot, (ii) in the open space including margin, and (iii) beyond the control building line. However, the petitioner in contravention of the development permission has effected construction in the common plot, has not left any margin and constructed shops in hollow plinth area reserved for parking.
8. It is respectfully stated that the petitioner, addressed a letter dated NIL which was accepted by the respondent No.3 on 30.8.2012 whereby, the petitioner had made certain grievance against the owners of adjacent plot. The respondent No.3, in response to the aforesaid grievance of the petitioner, pointed out that it has been noticed by the respondent No.3 that the construction was not as per the development permission that he may restrict his construction in accordance with the development permission, failing which, necessary action will be taken. Annexed hereto and marked as Annexure-II is a copy of the letter dated 4.9.2012.
9. It is pertinent to note that as aforesaid, the petitioner was granted development permission only for constructing 42 residential units but unfortunately, on site inspection, it came to the notice of the respondent no.3 that the petitioner, in violation of the provisions of the conditions incorporated in the development permission and in utter defiance of the undertaking dated 31.8.2010, carried out the illegal construction as under:
(i) Constructed one whole block in common plot, consisting of hollow plinth, ground floor, first floor and second floor,
(ii) Constructed shops in the frontage of the main road in the hollow plinth in Block-A, sanctioned for parking space, and
(iii) left zero metre side-margin, thereby Page 9 C/SCA/3326/2014 ORDER encroaching upon 12 metre T.P. Road. (The petitioner, as per the development permission, was obliged to leave 3 metre side margin) Annexed hereto and collectively marked as Annexure-III (colly.) are the copies of the photographs of the frontage and of the 12 metre T.P. Road side along with the map.
10. It is respectfully stated that no sooner the aforesaid illegal construction came to the notice of the respondent No.3 than notice dated 5.10.2012 came to be issued under the provisions of the Act of 1976 calling upon the petitioner to remove the unauthorized construction carried out against the sanctioned pllan. The petitioner neither reply to the said notice nor complied with the same as a result of which, a further notice dated 26.11.2012 through registered post A.D. came to be issued under the provisions of section 36 of the Act of 1976 reiterating the request of removing the unauthorized construction. Annexed hereto and collectively marked as Annexure-IV (colly.) are the copies of the notices dated 5.10.2012 and 26.11.2012. Thereafter, the petitioner submitted a reply dated 29.12.2012,inter-alia justifying that no illegal construction has been carried out on the site. In the meantime, a complaint was received by Shri Ram Corporation on 20.11.2012 and accordingly, the respondent no.3, thereafter, inspected the site on 3.12.2012 and necessary report was prepared. The said issue as such is not directly in issue and thus I deem it proper not to deal with the same, reserving right to deal with the same, if need be. Annexed hereto and marked as Annexure-V is the copy of inspection report dated 3.12.2012.
11. the petitioner, filed a Regular Civil Suit no.21/2013 before the court of Principal Senior Civil Judge, Gandhinagar for temporary injunction against the Page 10 C/SCA/3326/2014 ORDER respondent no.3 inter-alia requesting that the notice be declared as not enforceable. Annexed hereto and marked as Annexure-VI is a copy of the Regular Civil Suit No.21/2013 filed by the petitioner. It was expected of the petitioner to have stated in the petition about the filing of the suit for the identical relief prayed for but unfortunately, the petitioner has not set out the facts in the petition, but has produced it alongwith the appeal which was filed under the provisions of the Act.
13. The respondent no.3, passed an order dated 4.9.2013 rejecting the application on the ground that the provisions of the Act are not applicable to the case of the petitioner inasmuch as the construction is post 28.3.2011 and the provisions of the Act are applicable only to the constructions carried out prior to 28.3.2011. Annexed hereto and marked as Annexure-VIII is the copy of the order date 4.9.2013 passed by the respondent no.3. Being aggrieved and dissatisfied by the aforesaid order dated 4.9.2013, the petitioner preferred an appeal under the provisions of section 12 of the Act before the competent authority alongwith the stay application.
14. Even after the rejection of the application dated 2.7.2013 of the petitioner for regularization and reportedly, in absence there being any stay granted in favour of the petitioner, the petitioner had, continued the illegal construction and thus, the respondent No.3 had to request Uttar Gujarat Vij Company Ltd. to discontinue the electricity supply. I respectfully say that apparently the petitioner has carried out illegal construction as is substantiated by his application for regularization of the unauthorized construction and thus,the captioned petition deserves to be dismissed without grant of any relief. Annexed hereto and collectively marked as Annexure-IX (colly.) are copies of the maps indicating the illegal construction by the Page 11 C/SCA/3326/2014 ORDER petitioner."
9. At this stage, it is also relevant to mention that the learned advocate who has appeared for the petitioner in present petition is the same advocate who has appeared for the petitioner - developer in the said two petitions. Since, present petition is also listed for hearing along with the said two petitions, the learned counsel for the petitioner has, having regard to the fact that the subject matter of this petition and other two petitions are same and the respondents are also same, made common submissions in respect of all matters and requested that present petition may also be decided alongwith the said two petitions. Likewise, learned counsel for the respondents have also relied on the same affidavit, which is filed in Special Civil Application No.3245 of 2014, and made common submissions.
10. Learned Counsel for the petitioner Page 12 C/SCA/3326/2014 ORDER additionally submitted that the petitioner is bonafide purchaser and when the petitioner purchased the property, he was informed by the respondent No.1 that the entire scheme is in accordance with applicable rules and there are no illegalities or defects and that therefore, relying on the assurance by respondent No.1, she purchased the property and being bonafide purchaser, the petitioner should not be made to suffer for irregularities committed by the respondent No.1. Learned counsel for the petitioner submitted that the respondent No.1 may be directed to pay the impact fee as per the provisions under the Gujarat Regularization of Unauthorized Development Act, 2011 [hereinafter referred to as the "GRUDA Act"]. Learned counsel for the petitioner heavily relied on the above referred two petitions and the contentions raised in the said two petitions.
11. Per contra, learned counsel for the respondents cited facts from the affidavit in Page 13 C/SCA/3326/2014 ORDER Special Civil Application No.3245 of 2014 and submitted that certain part of the construction is illegal and unauthorized and contrary to applicable regulations. It is also submitted that in view of the facts of the case and the fact that any notice before the relevant date was not issued and in view of the fact that the disputed construction is put up after the relevant date, the provisions under said Act, i.e. GRUDA, are not attracted. It is also submitted that the developer has taken out two suit proceedings which are pending in civil court.
12. Having regard to the fact that according to the respondent No.1, since appeal filed under the provisions of the said Act is pending, any directions as prayed for by the petitioner herein does not deserve to be granted.
The said appeal would be heard and decided in accordance with law. Besides this, the petitioner has no right or locus to claim direction against the respondent authorities that they should Page 14 C/SCA/3326/2014 ORDER direct the respondent No.1 to pay impact fee. In present petition, the petitioner has averred and claimed, inter alia, that :-
"3.7 ...It is further submitted that, as far as the impact fees are concerned it may be directed to respondent no.1 to pay the same before the competent authority in view of the facts that total amount of sale consideration is already paid to the respondent no.1..."
13. The issue as to whether the provisions of the Act are applicable in this case of alleged illegal and unauthorized construction will be decided in the appeal proceedings.
At this stage, the Court cannot pass such directions as prayed for by the petitioner when the issue about applicability of the Act is pending before the appellate authority. Besides this, the petitioner has averred in the petition that, "3.7 ...without there being any fault from the part of the petitioner, they may not be penalized by demolishing flats purchased by the petitioners Page 15 C/SCA/3326/2014 ORDER in good faith and therefore also, the respondent no.2 and 3 may be directed not to take any steps with regard to demolition of said flats of block D of the said scheme..."
14. If the disputed construction is illegal and unauthorized then the Court cannot pass such restraint order against respondents, as prayed for by the petitioner, more so when the provisions of the Act are, as claimed by the respondents, not attracted in case of the disputed construction put up by respondent No.1.
Merely because the respondent No.1, as claimed and alleged by the petitioner, informed the petitioner that the constructions and the scheme are legal and in accordance with the regulations, it does not confer any right on the petitioner to claim that the respondent authorities should not take any action even though the constructions in question is found to be illegal and unauthorized.
15. When two substantive suit proceedings wherein Page 16 C/SCA/3326/2014 ORDER the issue related to the proposed action by the respondent is in question and when an appeal under the provisions of the Act, wherein the issue related to the applicability of the Act to the disputed construction is in question, this Court would refrain from making any observation with regard to the legality or otherwise of the construction in question or about the applicability of the Act or with reference to the action proposed to be taken by the respondents.
Suffice to say that if the construction in question is illegal and unauthorized as claimed by the respondent authorities and/or if the construction is contrary to or in violation of applicable regulations then any preemptive direction against the respondents to not demolish such construction cannot be passed.
If such direction is passed by the Court, it would amount to restraining the respondents from discharging their duties and restraining them from taking action which they are obliged to take by virtue of mandate of the Act.
Page 17 C/SCA/3326/2014 ORDER In the facts of the case, the appellate authority or the learned trial Court will, after hearing the concerned parties and after taking into account the facts and relevant evidence, pass appropriate directions in accordance with law and applicable rules.
However, the relief prayed for by the petitioner does not deserve to be granted.
In the facts of the case, the respondent authorities cannot be directed to direct the respondent No.1 to pay impact fee.
Any directions, even by way of interim relief, to not take any action in pursuance of the notices issued by them also cannot be granted in the facts of the case.
16. The petitioner has failed to make out any case for the relief prayed for in the petition.
Any ground to grant the relief prayed for is not made out.
For the foregoing reasons and also for the reasons recorded in the orders passed in above Page 18 C/SCA/3326/2014 ORDER referred two petitions, the petition fails and does not deserve to be entertained. Therefore, the petitioner is hereby rejected. Notice is discharged. If any, interim relief is in operation, stands vacated.
(K.M.THAKER, J.) kdc Page 19