Gujarat High Court
Sahjanand Palace Co-Operative Housing ... vs State Of Gujarat on 11 November, 2019
Equivalent citations: AIRONLINE 2019 GUJ 611
Author: A.J. Shastri
Bench: Vikram Nath, A.J. Shastri
C/LPA/1768/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1768 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 13578 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 1768 of 2019
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SAHJANAND PALACE CO-OPERATIVE HOUSING SERVICE SOCIETY
LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR DHARMESH V SHAH(1050) for the Appellant(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 1,2,5
MR BHARAT R PANDYA(543) for the Respondent(s) No. 4
MR RS SANJANWALA,SENIOR ADVOCATE, with MR SUNIL S
JOSHI(2925) for the Respondent(s) No. 3
RUSHI A BAROT(8993) for the Respondent(s) No. 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 11/11/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. Present Letters Patent Appeal is filed under Clause 15 of the Letters Patent by the appellants- original petitioners against the judgment and order passed by learned Single Judge dated 21.10.2019 in Special Civil Application No.13578 of 2019.
2. The background on which the present appeal has arisen is that the appellants- petitioners have filed the petition for challenging the legality and validity of the order passed by the respondent No.2 dated 17.7.2019 in purported exercise of the power under Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 ('the Act' for short). By invoking the Page 1 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER extraordinary jurisdiction, the appellants raised the grievance that originally, the development permission and layout plan were sanctioned for the Scheme of 50 residential tenements, proposed on the land bearing consolidated Final Plot No.2+6+ (12+13)/1 of the said Town Planning Scheme allotted in lieu of the land bearing Survey Nos.497/1, 498/P, 500/1, 500/2, 500/3 and 508/P of Village Thaltej, subject to submission of NA permission for the land bearing original plot under Section 65 of the Land Revenue Code. Sanctioned letter dated 18.2.2006 was attached to the petition. It was pointed out that NA permission was issued with respect to Survey Nos.500/1, 500/2, 500/3, over which the layout was also sanctioned and the development permission was issued originally to put up the construction of 13 tenements. Later on, upon revised layout plan being submitted, the authority had sanctioned 48 residential tenements proposed on the land bearing Final Plot, as indicated above, on condition that existing work to be removed. The said revised layout which was sanctioned dated 27.6.2011 is reflecting on compilation at page 49.
3. It was further the case of the appellants- petitioners that the members of the appellant society purchased tenements constructed on the land with NA permission of the said Scheme by registered sale documents in the year 2008 and became owner. It was also submitted that while sanctioning the revised layout plan for 48 residential tenements, proposed on land bearing the said final plot allotted in lieu of the said original plot with proportionate part of Final Plot No.2 allotted in lieu of the land bearing Survey Nos.498/P denoted as "land without NA", marked with hash and issued revised development permission for carrying out the construction of 25 tenements proposed on the land with NA permission with a special conditions that no development permission is granted for any construction in land marked with hash in the layout plan and secondly, the development permission is granted subject to removal Page 2 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER of construction of tenement No.B/1, B/28, B/29, B/30 and B/31 marked with 'existing work to be removed'. It was the case of the appellants- original petitioners that by way of registered sale deeds executed during 2011-2014, the appellants became co-owner of the common plot and are in possession thereof since the common plot has been vested in the appellant society. After sanction of the Draft Town Planning Scheme No.37/A (Thaltej), the Town Planning Officer (TPO) was appointed to sub-divide the Town Planning Scheme into preliminary scheme and a final scheme and thereafter process went on. Initially, within a period of 20 days, according to the appellants, no objections were received against the action of sub-division of Final Plot No.2, but then despite the fact that in view of Section 51 of the Act, there is no power to enlarge the time, still the objections which were received after 500 days almost, the authority processed the further steps but by that time, according to the appellants, 5 tenements, which are referred to above and which were sought to be removed, had been regularized under the provisions of GRUDA- 2011.
4. It is further the case of the appellants that despite the fact that the process of sub-division of Final Plot No.2 is not in consonance with the law prescribed, the Town Planning Officer had fraudulently proposed; (i) Sub-divide Final Plot No.32 admeasuring 2962 Sq. Mtrs. Into Final Plot Nos.32/1 and 32/2 admeasuring 790 and 2132 Sq. Mtrs. respectively, leaving access land of 40 Sq. Mtrs.,
(ii) sub-divide Final Plot No.2 admeasuring 7703 Sq. Mtrs. Into Final Plot Nos.2/1, 2/2/1 and 2/2/2 admeasuring 3286, 2287 and 2130 Sq. Mtrs. respectively and then (iii) to fraudulently, renumber the Final Plot No.2/2/2 admeasuring 2130 Sq. Mtrs. as Final Plot No.32/2 admeasuring 2132 Sq. Mtrs. and to renumber Final Plot No.32/2 admeasuring 2132 Sq. Mtrs. along with access land of 40 Sq. Mtrs. as Final Plot No.2/2/2 admeasuring 2173 Sq. Mtrs., wherein Final Plot Nos.2/1 and 32/2 are not in regular shape, violating the Page 3 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER condition No.4 of sanction notification of the Draft Town Planning Scheme No.37/A (Thaltej). Thus, according to the appellants, erroneously, the authority has processed the part of the land bearing Final Plot No.2 with common road, common plot and main gate of the petitioner society. To this proposal of the TPO, apparently, according to the appellants, condition No.4 of the sanction notification of the Draft Town Planning Scheme is violated. This has been submitted, as a result of which, not only there was a substantial variation without previous sanction of the respondent No.1 authority but seriously prejudicial to the appellants. Initially, a petition was moved by the appellants, being Special Civil Application No.14484 of 2016 and during pendency of the said petition, the respondent No.1 had sanctioned the preliminary scheme and then since the petition came to be dismissed, the appellants were constrained to prefer Letters Patent Appeal, being Letters Patent Appeal No.1508 of 2017, which was not pressed by the appellants with a view to move an appeal under Section 70 of the Act and thereafter, the authority had passed order on 15/17.7.2019 and the appellants- petitioners preferred a writ petition challenging the said order under Section 70 of the Act. Learned Single Judge after hearing at length on 21.10.2019 dismissed the Special Civil Application, which was numbered as 13578 of 2019, which is made the subject matter of the present Letters Patent Appeal before us.
5. Learned advocate Mr. Dharmesh Shah appearing on behalf of the appellants- petitioners has vehemently contended that the authority while passing the order under Section 70 has not appreciated the facts in right perspective and has on the contrary not taken note of a thing that the construction of 5 tenements which was to be removed was on the contrary regularized by the authority and it has further been submitted that had proper scrutiny been made by the authority, the impugned order would not have been passed. There is a substantial effect in not considering this, hence Page 4 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER since it was a well within the authority to exercise the jurisdiction under Section 70 of the Act, the order could not have been passed and learned Single Judge, according to learned advocate, has misdirected himself and substantially did not entertain the petition on the ground of suppression of material fact. According to learned advocate, on the contrary, there is no suppression of material fact at all and every document was attached with the Special Civil Application and particulars regarding the earlier petition were also averred in the memo of petition and therefore there is neither any suppression of material fact nor any attempt was made to misguide the Court and therefore, the order passed by learned Single Judge deserves to be corrected.
6. It has further been contended by learned advocate Mr. Shah that there is a serious prejudice likely to be caused to the legitimate enjoyment of the common plot, common gate of the society and based upon some collusive acts of the authority and the purchasers who are subsequently joined, the challenge is frustrated. In fact, there is a serious irregularity crept in sanctioning the Scheme, as such, it was well within the power of the authority to exercise the discretion. It has further been contended that the order passed by learned Single Judge is not based upon proper scrutiny of the material which is placed before the Court and therefore, the conclusion arrived at by learned Single Judge is not in consonance with the record, hence deserves to be corrected.
7. It has further been contended that the irregularity which has been apparently found in the preliminary Scheme due to non- consideration of the petitioners being owners and occupants of the land in question, as their names were not recorded in 7/12 extract but then in view of the evidence which was led before the authority, to reflect the ownership/ occupancy of the land, it was incumbent on the part of the authority to examine such evidence and that having not been done, the exercise of the jurisdiction is vitiated, which Page 5 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER aspect has not been properly considered by learned Single Judge.
8. Learned advocate Mr. Dharmesh Shah has further submitted that there was a clear non-compliance of Rule 26(1) and 26(3) of the Rules and though the objections were not well within the prescribed time, it was not open for the authority to consider, still on account of some unforeseen reasons, process went on and sanction is ultimately accorded to the preliminary Scheme. Learned Single Judge, according to the appellant, has misdirected himself on the circumstance that since the earlier writ petition came to be dismissed on merit and the Letters Patent Appeal is also not pressed, it was not open for the appellants to assail again but learned Single Judge, according to learned advocate Mr. Shah, has lost sight of the fact that it was with the permission of the Court, an application was submitted under Section 70 of the Act and the Letters Patent Appeal came to be withdrawn. As a result of this, the order passed by learned Single Judge deserves to be corrected. According to Mr. Shah, if this is not corrected, there will be serious prejudice to the legitimate rights of the appellants. Accordingly, the relief prayed for is requested to be granted. No other submissions have been made.
9. Learned senior counsel Mr. R.S. Sanjanwala appearing with learned advocate Mr. Sunil S. Joshi for the contesting respondent has vehement opposed the stand of the learned advocate for the appellants. Mr. Sanjanwala who led the defence of the contesting private respondent has vehemently submitted that there is a clear attempt made by the appellants to mislead the Hon'ble Court and even before this Division Bench also in the present appeal, true and correct facts are not being brought and therefore he has seriously contended to dismiss the appeal with heavy cost.
10. Mr. Sanjanwala has submitted that the conduct on the part of the appellants be taken serious note of since initially the petition Page 6 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER which was filed was based upon the suppression of material facts. In fact, it was not brought to the notice of the Court that during the pendency of the earlier petition, i.e. Special Civil Application No.14484 of 2016, which was essentially against the division of Final Plot No.2, preliminary Town Planning Scheme came to be approved by the State Government and which has become part of the Act. The said petition as such came to be dismissed by detailed order and therefore, now under the guise of fresh petition against the order under Section 70 may not be entertained by allowing fresh round of litigation. In the Letters Patent Appeal which was permitted to be withdrawn, being Letters Patent Appeal No.1508 of 2017, the Division Bench has not disturbed the order dated 25.7.2017, whereby the petition came to be dismissed on merit. It is only with a view to allow the appellants to move under Section 70, a chance was given, but that would not permit the appellants to carry out a fresh round of litigation. It has further been submitted that originally the respondents, who were directly affected to the outcome, have not been joined as party to the proceedings and it is only when the Civil Application for vacating interim relief was moved, the contesting respondents came to be joined and therefore, attempt was originally made to get order behind the back of the affected persons and as such also, the conduct was found to be questionable.
11. It has further been submitted that apart from this, another petition came to be filed, being Special Civil Application No.15251 of 2018, with a prayer to direct the respondent No.2 to stop the construction over the land bearing finer plot No.2/2/1, which petition came to be disposed of and as a consequent of it, these very petitioners have submitted Special Civil Suit No.94 of 19 before the Civil Court and this order was also concealed from the Court at the relevant point of time. So, there are several circumstances on the basis of which an attempt has been made by the appellants to Page 7 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER mislead the Hon'ble Court and only on this count, the appeal also deserves to be dismissed.
12. Mr. Sanjanwala has submitted that apart from this conduct, even on merit also, no case was found by learned Single Judge which has been dealt with on merit. The fact is also taken note of specifically that even in the proceedings under Section 70 of the Act also, sufficient opportunity is given to the appellants and thereafter reasoned order is passed. Additionally, it has also been projected before us that the petitioner society is a service Society of the members and independent member of the society has also not raised any grievance and therefore also, the challenge at the instance of the appellants does not deserve to be entertained. No doubt, irrespective of finalization of this Scheme, Section 70 of the Act can be pressed into service but, certain conditions which are engrafted in that provision will have to be satisfied, which has not been established. As a result of this, there is hardly any case made out by the appellants to entertain the appeal. In any case, according to learned senior counsel, once the challenge to the subdivision of the final plot is attaining finality, there is hardly any reason for the appellants to make any grievance indirectly upon the very same issue by challenging order under Section 70 of the Act. Accordingly, learned senior counsel has vehemently opposed the appeal.
13. Learned advocates appearing for the other respondents have adopted these very submissions and as such requested to pass appropriate order in the interest of justice.
14. Having heard learned advocates appearing for the respective parties and having gone through the order passed by learned Single Judge, we are prima facie satisfied that learned Single Judge has examined every issue which has been brought before the Court and we are also satisfied that irrespective of the questionable conduct of the appellants, even merit is also examined by learned Single Judge Page 8 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER and as such, the decision-making process of learned Single Judge, in our considered opinion, is just and proper. We have also noticed independently from the record which has been posed before us wherein the order dated 27.6.2011 reflecting on page 49 of the authority about the development permission has clearly engrafted the condition to remove the construction of the tenements which are mentioned therein and based upon this very conditional sanction, the development and the construction has taken place. So, on one hand, the appellants have secured the development permission even on condition to remove and then moved for regularization. This appears to be playing with the authority, which has rightly been appreciated by learned Single Judge and further candidly learned advocate Mr. Shah has admitted that the order dated 27.6.2011 was never subject matter of challenge at any point of time.
15. While examining the conduct of the appellants, we put a query before learned advocate and to justify, it was half-heartedly and laconically submitted that the earlier petition was referred to in the memo of petition and therefore cannot be said to be suppression of material fact. We are afraid to justify this explanation if a litigant in some corner of pleadings is by a sentence or two is referring circumstance and not bringing it to the notice of the judge at the relevant point of time of hearing, explicitly the Court is not expected to examine each and every line of the petition. In fact, it is the solemn duty of learned advocate to bring it to the notice of the Court. We are not satisfied with the explanation given by learned advocate for the appellants. On the contrary, from the reading of the order of learned Single Judge, we found that not only the order of dismissal of the petition was not attached with the petition in question, i.e. out of which the Letters Patent Appeal has arisen but even the same was originally not brought to the notice of the Court and obtained an injunction. It is only when the hearing took place, Page 9 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER the said fact was unearthed. It was also clearly revealed from the record by learned Single Judge that disposal of another petition, i.e. Special Civil Application No.15251 of 2018, was not brought to the notice of the Court nor the order thereof was produced on record and the fact of Special Civil Suit No.94 of 2019 was also not made known to the Court and it is only when the private respondents, i.e. the affected persons, came out for being joined as a party as directly affected, these facts have been noticed by the Court.
16. It was also found by learned Single Judge that originally, ad- interim relief was obtained without joining the private respondents as party to the proceedings who are directly to be affected and with a view to see that delay can take place further when Civil Application was filed by the private respondents for joining them and for vacating the interim relief, originally the same was vehemently objected to by the appellants and then later on, realising the situation, they were allowed to be joined. So this attempt is also clearly visualized by learned Single Judge and taken note of.
17. In our considered opinion, the conduct of a litigant is also playing a vital part in decision-making process by the Court and therefore when such is a conduct, it was justifiably refused by learned Single Judge to exercise the extraordinary jurisdiction. The Court, being the Court of equity, is completely justified to refuse the relief moment any suppression of material fact is found or attempt to misguide is visualized. Resultantly, we see no error committed by learned Single Judge. Even before us also, when other side brought the aforesaid conduct and thereby, a justification tried to be made, we deprecate such practice.
18. We further found from the record and the observations made by learned Single Judge that irrespective of the conduct on the part of the appellants, even on merits also, it was found by learned Page 10 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER Single Judge that the impugned order came to be passed after granting full opportunity by the authority and only thereafter, after assigning the reason, the discretion is exercised. In respect of the order impugned in the original petition, the observations made by learned Single Judge contained in paragraph 28 and 29, we deem it proper to reproduce hereinafter:-
28. Keeping in view the aforesaid decisions, upon which, the reliance is placed by the learned advocates appearing for the parties, if the facts and circumstances of the present case as discussed hereinabove are examined, it can be said that under Section 70 of the Act, powers are given to the authority to apply in writing to the State Government for variation of the scheme, if the appropriate authority considers that the scheme is defective on account of any error, irregularity or any informality. If ultimately, the appropriate authority considers that the scheme is defective on account of the reasons which are stated in Section 70 of the Act, then it is the appropriate authority who has to move an application for the purpose of variation of the scheme. The petitioners cannot as such pray for directing the authority to vary the scheme and hence, such a prayer considering the scheme of the Act cannot be granted.
At this stage, it is pertinent to note that the petitioners filed the petition being Special Civil Application No.14484 of 2016 challenging the action of the Town Planning Officer dividing Final Plot No.2 into different final plots. During the pendency of the said petition, the State Government sanctioned the preliminary town planning scheme approving the division of Final Plot No.2 made by the Town Planning Officer and, therefore, the petition was amended by petitioners whereby Notification issued by the State Government was also challenged. After considering the relevant aspects, this Court dismissed the petition vide order dated 25.07.2017. The said order is not set aside by the Division Bench of this Court. On the contrary, the petitioners had withdrawn the said appeal.
29. Thus, now on the ground of rejection of application filed under Section 70 of the Act on the grounds, which were also raised in the first round of litigation, the petitioners cannot be permitted to reagitate the same issue before this Court. Even on merits also, this Court has examined the reasoning recorded by respondent No.2 while rejecting the appeal filed by the petitioners under Section 70 of the Act. Respondent No.2 has in detail discussed each and every contentions raised by the petitioners and, thereafter, held that there is no illegality, impropriety and informality as alleged by the petitioners. Thus, in the facts and circumstances of the present case, no interference is required in the impugned decision taken by respondent No.2.
Page 11 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER19. In view of the aforesaid observations which are made by learned Single Judge, we are satisfied with the correctness of the order passed by learned Single Judge and we see no reason to entertain the appeal.
20. Additionally, we found from the record that an attempt was made by learned advocate for the appellants not to disclose certain relevant material going to the root of the matter. We also found such attempt and looking to the overall material on record and in view of the observations made by learned Single Judge, we are of the considered opinion not only to dismiss the Letters Patent Appeal but to discourage such kind of attempt being made before the Court, we deem it proper to impose cost upon the appellants for such attempt and the conduct. Time and again, the Apex Court has deprecated this kind of attempt and on the contrary, in one of the decisions delivered by the Apex Court, a serious view is suggested to be taken but with a view to see that some sense of responsibility to be taught to the litigant, we deem it proper to impose a cost of Rs.5 lac, which would meet the ends of Justice. Such amount of cost be deposited within a period of FOUR WEEKS from today before the Registry of this Court. We may refer some of the observations made by the Apex Court in this regard.
21. Hon'ble Apex Court in the case of Sciemed Overseas Inc. Vs. BOC India Limited and others reported in (2016)3 SCC 70, has held and observed in para 28 and 29 as under:-
29. In Suo Moto Proceedings against R. Karuppan, Advocate, this Court had observed that the sanctity of affidavits filed by parties has to be preserved and protected and at the same time the filing of irresponsible statements without any regard to accuracy has to be discouraged. It was observed by this Court as follows:
"13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for Page 12 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021 C/LPA/1768/2019 ORDER offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy."
31. Similarly, in Muthu Karuppan v. Parithi Ilamvazhuthi this Court expressed the view that the filing of a false affidavit should be effectively curbed with a strong hand. It is true that the observation was made in the context of contempt of Court proceedings, but the view expressed must be generally endorsed to preserve the purity of judicial proceedings. This is what was said:
"Giving false evidence by filing false affidavit is an evil which must be effectively curbed with a strong hand. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent, but there must be a prima facie case of "deliberate falsehood" on a matter of substance and the court should be satisfied that there is a reasonable foundation for the charge."
22. With these observations, having found no case on merit in favour of the appellants, we deem it proper to dismiss the appeal. Hence, the Letters Patent Appeal is dismissed with cost of Rs.5 lac.
23. Since the Letters Patent Appeal is dismissed, the Civil Application does not survive and same stands disposed of.
Sd/-
(VIKRAM NATH, CJ) Sd/-
(A.J. SHASTRI, J) OMKAR Page 13 of 13 Downloaded on : Fri Feb 12 09:03:20 IST 2021