Gujarat High Court
Adinath Sthankvasi Jain Religious ... vs Nalanda Co-Operative Hosg. Society Ltd on 23 September, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/LPA/1000/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1000 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 17008 of 2005
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 1000 of 2016
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 1000 of 2016
With
R/LETTERS PATENT APPEAL NO. 334 of 2018
In
SPECIAL CIVIL APPLICATION NO. 17008 of 2005
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 334 of 2018
In
SPECIAL CIVIL APPLICATION NO. 17008 of 2005
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ADINATH STHANKVASI JAIN RELIGIOUS TRUST
Versus
NALANDA CO-OPERATIVE HOSG. SOCIETY LTD & 2 other(s)
==========================================================
Appearance:
MR MIHIR H. JOSHI, SENIOR ADVOCATE WITH MR VIMAL PATEL,
ADVOCATE WITH SUREN B PATEL(8420) for the Appellant(s) No. 1
MR D C SEJPAL(1322) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 23/09/2019
COMMON ORAL ORDER
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C/LPA/1000/2016 ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This intracourt appeal under Clause15 of the Letters Patent Act is at the instance of the original respondent No.2 of a Special Civil Application under Article 226 of the Constitution of India, challenging the action of the respondent No.1-Corporation in resolving to sell 577.81 sq.mtrs. of land in favour of the appellant herein out of the total land reserved for public purpose, which the society claims to be of its ownership and is directed against the judgment and order passed by the learned Single Judge dated 23/06/2016 in the Special Civil Application No.17008 of 2005, whereby the learned Single Judge allowed the writ application preferred by the Society.
2. Having regard to the nature of the litigation and the dispute between the parties, we deem it appropriate to incorporate the entire impugned judgment of the learned Single Judge as under, as that would give a fair idea of the facts involved in the matter.
1. Petitioner of this petition has approached this Court challenging the action of respondent No.1Corporation in selling a piece of land to respondent No.2 i.e. 577.81 Sq.Mtrs. out of the total area of 1236.59 Sq.Mtrs. pertaining to the common plot belonging to the petitionerSociety with following prayers:
(A) Your Lordships be pleased to issue the writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned action of the respondent No.1 Corporation in resolving to sell 577.81 sq.mtrs. of land out of the reserved land for public purpose belonging to the petitioner society to the respondent No.2 trust by way of resolution No.217 dated 16.7.2005, in the interest of justice;
(B) Your Lordships be pleased to issue the stay the implementation, operation and execution of resolution No.217 dated 16.7.2005 by which the respondent No.1 Corporation has resolved to sell 577.81 sq.mtrs. of land out of the reserved land for Page 2 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER public purpose belonging to the petitioner society to the respondent No.2 trust and be pleased to restrain the respondent No.1, its agents, servants or officers from parting with possession of the subject land belonging to the plot for public purpose of the petitioner society, pending the admission, hearing and final disposal of this petition;
(C) Your Lordships be pleased to grant such other and further relief and/or order as deemed fit in the facts and circumstances of the case and in the interest of justice.
2. Brief facts of this case are that the petitioner is a Society constituted under the provisions of Gujarat Cooperative Societies Act, 1961 and is registered as per Section 9 thereof on 16.3.1972 with District Registrar, Cooperative Societies, Rajkot. Respondent No.3 (original owner) purchased a part of Survey No.443 of the revenue limits of Rajkot city adjoining Kalavad Road and developed the same. He obtained nonagriculture permission from the competent authority and approved plotting of the land for residential purposes. On 5.5.1971, Collector, Rajkot approved the lay out plan as well as building arrangement lay out plan of the land. Survey No.443 was divided into two parts i.e. 443A and 443B. Both the plans approved by the competent authority are part of the petition. The N.A. permission was granted on 18.12.1970 by the competent authority and thereafter, certain conditions were imposed for using the land by order dated 25.2.1971 by the Collector, Rajkot. The plot reserved for public purposes was surrounded by various plots which were alloted to the members of the society. The subject matter of this petition pertains to the common plot/land reserved for public purposes having total area of 1236 Sq.Mtrs. The respondent No.3 sold 63 plots and out of this 63 plot holders, 47 came together and formed a society while remaining 16 plot holders remained as individuals. It is case of the petitioner that after formation of the Society in the year 1972, the society felt that because of the poor financial condition, it was not possible for them to manage the roads and developed the common plot reserved for that purpose. Therefore, Society resolved that the common plot falling in Survey No.443A and 443B be handed over to the Corporation respondent No.1 for effective implementation of the object and conditions by which land was alloted to be developed. Since the land was vacant and remained unutilized by respondent No.1 Corporation for more than 20 years, petitionerSociety made a representation to the respondent No.1Corporation to handover the possession of the reserved land back to the petitionerSociety. Various communications between the petitionerSociety and the Corporation are placed on record. It is further case of the petitioner that respondent No.2Trust purchased the piece of land admeasuring 100 Sq.Mtrs. in Page 3 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER part of SubPlot No.15 out of the approved plan. The said area was adjoining to the reserved land which was handed over to the Corporation for development. In the year 1999, the respondent No.2 Trust moved an application to the Corporation to grant some land out of the reserved land to utilize the same for public purpose. Thereafter, application moved by respondentTrust was accepted by the Corporation and accordingly, piece of land admeasuring 300 Sq.Mtrs. vide resolution No.297 dated 1.12.2000 was granted to the Trust at the rate of Rs.6000/ per sq.mtr. The petitioner raised objections regarding the said sale to respondent No.2, however, they were not able to get any relief. Thereafter, respondent No.2Trust has once again applied to respondent No.1Corporation for further grant of 577.81 sq.mtrs. of land out of the land reserved for common purposes. Aggrieved from this development, petitionerSociety has approached this Court by way of present petition. It is also brought to my notice that apart from this petition, petitioner has also approached the Civil Court seeking relief for declaration that the entire land be handed over back to the Society, however, the said suit is still pending.
3. Learned counsel for the petitioner has submitted that petitioner Society was owner of the entire land which has been purchased by the individual plot holders and thereafter, formed the Society in the year 1972. The Society was having two common plots bearing Survey No.443A and 443B which were reserved for common purposes of the Society. As the Society was not in a position to develop this plot, these were handed over to the Corporation for development. It is submitted that Corporation was not within their right to sale the 300 Sq.Mtrs. of land to respondent No.2 out of the common plot. The proposed action of respondent No.1Corporation in selling out another plot ad measuring 577.81 Sq.Mtrs to respondent No.2 was against the law of land. It has been submitted that the stand of respondentCorporation that they were owner of the plot in view of Section 224 of the Bombay Provincial Municipal Corporation Act, 1949 was in fact misleading as this Section deals with the streets and roads which Corporation can use for the purposes of putting lights and other amenities. He has relied upon a decision of the Apex Court in the case of Pt.Chet Ram Vashist (dead) By LRs V/s. Municipal Corporation of Delhi reported in (1995) 1 SCC 47.
4. On the other hand, learned counsel representing the Corporation as well as respondent No.2 has replied to this submission by arguing that Municipal Corporation was within their rights to have sold 300 Sq.Mtrs. of land to respondent No.2. Further, the Corporation has invited objections from various plot holders and after inviting objections, the Corporation has proposed to sell plot ad measuring 577.81 sq.mtrs. out of the reserved land to respondent No.2 Page 4 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER as respondent No.2 has undertaken to develop this land for common purposes. He has referred to Section 224 of the Bombay Provincial Municipal Corporation Act and has submitted that the Corporation has become owner of this land and was within their rights to use the same for other purposes beneficial to the residents of that area.
5. This Court has considered the submissions of both the sides. The facts are not in dispute. The individual plot holders have formed the Society in the year 1972 and common plot Nos.443A and 443B were kept reserved for common amenities. The society handed over this plot to the Corporation for the purpose of development. Rather than developing this plot for the residents of the society, the Corporation has preferred to sell it to third party i.e. respondent No.2 for religious purposes. Though originally it was agreed that the land will be used for library but it is brought to my notice that none of the residents is allowed to enter that portion of the land which has been purchased by respondent No.2. This Court is in full agreement with the arguments of learned counsel for the petitioner that Section 224 of Bombay Provincial Municipal Corporation Act, 1949 will not be applicable to the facts of this case as it relates to the ownership of Corporation pertaining to streets and passages falling within the area of Corporation. Rather than the case of Pt.Chet Ram Vashist (dead) By LRs V/s. Municipal Corporation of Delhi (supra) is fully applicable to the facts of this case. In this case, it has been held that space reserved in the plan for the public purpose viz. Park, School, etc. cannot vest in the Corporation as it will amount to transfer of the ownership of society to the Corporation free of cost which is not permissible in law.
6. In view of the foregoing discussion, this petition is allowed. The action of the respondent No.1Corporation in resolving to sell 577.81 sq.mtr. of land out of the land reserved for public purposes belonging to the petitionersociety to respondent No.2 Trust by way of resolution No.217 dated 16.7.2005 is quashed and set aside. Rule is made absolute.
3. Having heard the learned counsel appearing for the parties and having gone through the materials on record, it appears that the dispute between the parties is with respect to a plot of land admeasuring approximately 1200 sq.mtrs. To put it briefly, it is the case of the society that the disputed land is a common plot and the case of the Corporation
- Rajkot Municipal Corporation is that this plot of land was reserved in the year 1971 for public purpose. It appears that some time in the year Page 5 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER 2000, out of 1200 sq.mtrs. of the disputed plot of land, the Corporation resolved to allot 300 sq.mtrs of land to the appellant-Trust. Such decision of the Corporation to allot 300 sq.mtrs. of land in favour of the appellant herein was opposed by the society. The opposition is on the premise that the plot is owned by the society and the Corporation has no right, title and interest over the same. The society apprehending that the resolution would be implemented and the land would be allotted to the appellant herein preferred a Regular Civil Suit No.466 of 2001 in the Court of the Civil Judge, Senior Division, Rajkot. It appears that the suit came to be instituted by the society after the resolution was passed by the corporation. In the civil suit instituted by the society, an application Exh.5 was also preferred and injunction was prayed for against the Corporation. To put it in other words, injunction was prayed that the Corporation be restrained from allotting 300 sq.mtrs. of land in favour of the appellant herein. The application Exh.5 came to be rejected. It is not in dispute that the order passed by the Civil Court rejecting the application Exh.5 was not challenged. In such circumstances, the Corporation proceeded to allot 300 sq.mtrs. of land in favour of the appellant and the appellant took over the possession of the land and as on date, as alleged by the Society, there is a Jain Derasar constructed on the area of 300 sq.mtrs. of land.
4. The facts which we shall narrate now triggered the second round of litigation. It appears that in 2005, the Corporation onceagain decided to allot 577.81 sq.mtrs. of land from the very same plot of land. The society instead of preferring a civil suit on the same line as instituted by them prior in point of time thought fit to come before this Court by filing the writapplication.
5. The learned Single Judge accepted the case put up by the writ Page 6 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER applicant. The learned Single Judge seems to have taken the view that the entire plot of land admeasuring 1200 sq.mtrs. and odd is owned by the society and it is the common plot of the society. In such circumstances, according to the learned Single Judge, the Corporation could not have passed any resolution for the allotment of the land in favour of the appellant herein. The learned Single Judge thought fit to allow the writapplication and quashed and set aside the resolution passed by the Corporation. In the impugned judgment of the learned Single Judge, there is also a reference of the fact that a civil suit is pending between the parties instituted prior in point of time. At this stage, we may take note of the issues, which have been framed by the Civil Court in the Regular Civil Suit No.466 of 2001 (1) Whether the plaintiff society proves that the plaintiff society is owner of nonagricultural land bearing Survey No.443 paiki with permission to construct paiki plot for public purpose admeasuring 1236.59 Sq.Yards? And as per provision of law the society plot holders only have right of usage?
(2) Whether plaintiff society proves that despite informing time and again to allot the public plot, the defendant No.1 illegally sold to defendant No.2 and therefore, it is entitled to the prayer prayed in Para 11 of the Suit?
(3) Whether the defendant proves that the plaintiff society in non agricultural land bearing Survey No.443 paiki purchased separate plot from different persons and is not the Khatedar of the disputed public plot and handed over possession to defendant No.1 by Rojkam dated 18.10.79 and the suit deserves to be dismissed as plaintiff society is not the owner?
(4) Whether the defendant No.1 proves that the defendant No.2 has legally sold the land by a Sale Deed to defendant No.2 for consideration of Rs.18,00,000/ pursuant to Resolution No.297 dated 08.12.2000 of Standing Committee of defendant No.2 and Resolution No.27 dated 20.12.2000 of General Board of defendant No.2 and therefore, suit deserves to be dismissed?
Page 7 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER(5) What order and decree?
6. We are not sure whether the issues had already been framed, at the time, when the judgment was delivered by the learned Single Judge or not. Be that as it may, primafacie, we are of the view that the writ application ought not to have been entertained for the simple reason that on the very same issues raised in the writapplication, the suit is already pending. Having regard to the issues, which have been framed by the Civil Court, the right, title and interest of the parties in the disputed plot of land would be decided accordingly. To put it in other words, whether the plot of land is a common plot owned by the society or is it a plot which could be said to be in possession of the Corporation, and reserved for the public purpose at the relevant point of time. Be that as it may, ultimately, the fact is that the writapplication came to be allowed and that is the reason, why the appellant in whose favour the further allotment is to be made is here before this Court.
We do not propose to go further into the legality and validity of the impugned order passed by the learned Single Judge. If the learned Single Judge has recorded a finding of fact that it is a common plot owned by the society, the same shall not be held as conclusive. We leave it for the Civil Court to decide the same on the basis of the oral as well as documentary evidence, which may be led by the parties. We are of the view that these are all questions of fact and will have to be decided on the basis of oral as well as the documentary evidence.
7. In such circumstances referred to above, we are of the view that the Civil Court should proceed further with the adjudication of the Regular Civil Suit No.466 of 2001 and decide the rights of the parties in accordance with law. The Civil Court shall decide whether the disputed Page 8 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER plot of land is a common plot of the society or is it a plot of land, which was reserved by the Corporation in the year 1971 for public purpose and the society has nothing to do with the same. We are taking this view because earlier 300 sq.mtrs. of land came to be allotted from the very same plot of land, which ultimately, led to the filing of the suit. From the very same land, now 577.81 of land is again proposed to be allotted by the Corporation in favour of the appellant.
8. Although, we are not convinced with the reasonings assigned by the learned Single Judge yet we are not disturbing the impugned order as a statement is being made by Mr. Buch, the learned counsel appearing for the Corporation that the impugned resolution of allotment of land shall not be given effect to and implemented till the disposal of the Regular Civil Suit No.466 of 2001. We would like to clarify further that ultimately, even if it is held in the suit that the society has nothing to do with the land in question, and the land is owned by the Corporation, we would not approve the allotment of land by the Corporation because we are of the firm view that the land, which is reserved for public purpose, even if it is to be allotted, should be by way of public auction only.
9. We remind the Corporation that State largess cannot be distributed as a bounty or charity to any private individual or a particular religious sect. The Corporation as a State within Article 12 of the Constitution of India is expected to adopt the criteria of fairness and equality as enshrined under Article 14 of the Constitution of India. The element of public law is the essence of State actions. For the time being, even if we believe that the Society has nothing to do with the land in question and the plot of land is owned by the Corporation, the Corporation should not forget that the land in question was reserved for public purpose. This is their own case. Public purpose ordinarily means Page 9 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019 C/LPA/1000/2016 ORDER town planning like widening of the road, laying of underground pipelines, drainage, etc. It is expected of the Corporation that the land even if it is believed to be reserved for public purpose, should be utilized for people at large in terms of town planning i.e. civic amenities. This country is full of religious shrines and State largess ordinarily cannot be distributed or granted in favour of any particular religious sect for any religious purpose on mere asking. This is the mandate issued by the Supreme Court in various of its decisions.
10. We clarify that the parties shall wait for the final outcome of the civil suit. The rights of the parties shall be determined by the judgment and decree, that may be passed by the Civil Court; subject to preferring an appeal by either of the parties.
11. With the above observations, this appeal is disposed of.
At this stage, Mr. Joshi, the learned senior counsel seeks to clarify that the 'Jain Derasar' is not constructed on the 300 sq.mtrs. of the disputed land, but it is on the land exclusively owned by the appellant. This is a question of fact, we would not like to go into such issues.
12. In view of the above, both the appeals are accordingly disposed of and the connected Civil Applications are also disposed of.
(J. B. PARDIWALA, J) (VIRESHKUMAR B. MAYANI, J) aruna Page 10 of 10 Downloaded on : Tue Sep 24 23:58:05 IST 2019