Gujarat High Court
M/S Shreeji Developers vs State Of Gujarat on 13 October, 2022
C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9584 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S SHREEJI DEVELOPERS & 1 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
RUSHABH H SHAH(7594) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
JENIL M SHAH(7840) for the Respondent(s) No. 4
MR NILESH A PANDYA(549) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/10/2022
CAV JUDGMENT
1. The present petition, under Article 226 of the Constitution of India, is filed by the petitioners Page 1 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 challenging the order dated 29.04.2022 passed by the Deputy Town Development Officer, Vadodara - respondent No.3 herein, whereby the respondent authority has put on hold the development permission (Rajachitthi) dated 18.02.2022.
2.1 Brief facts of the case are as such that; one Koyabhai Melabhai Rathodiya was holding the land bearing Survey Nos.5, 265, 268, 566, 583, 286, 37 & 99 situated at Village Vadsar, Taluka and District Vadodara. 2.2 Since, said Koyabhai Melabhal was unable to render service to the State because of his old age, an order dated 05.12.1958 was passed bearing Taluka Vatan No.1967 of 1958 mutating the name of his son - Mohanbhai Koyabhai Rathodiya in respect of said lands held by Koyabhai Melabhai on the condition that he will not be entitled to mortgage, sell or gift the land and on further condition that he continues to provide service which was being provided by his father Koyabhai Page 2 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 Melabhai.
In view of the above order dated 15.09.1958, the effect was given in the revenue record vide mutation entry No.513 and the same was later certified on 24.01.1962.
In or around the year 1961, Koyabhai Melabhai passed away and his name was deleted pursuant to mutation entry No.513, but, i.e. Mohanbhai Koyabhai Rathodiya, Ramabhai Koyabhai Rathodiya & others names of legal heirs of Koyabhai Melabhai were not brought on record.
2.3 In view of Government Notification No.V.1.W.1061 dated 31.07.1962, the persons in service were relieved, therefore, the name of the State was mutated in the revenue record in respect of the aforesaid survey numbers, as first name in first record of right (Pahela Hak ma') and the name of Mohanbhai Koyabhai Rathodiya was retained as second name in second record Page 3 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 of right ('Bija Hak ma') below the line. The relevant mutation entry in respect of the above notification was passed on 21.09.1962 being Entry No.656. 2.4 On 12.07.1988, Mohanbhai Koyabhai Rathodiya died, and thereafter, names of his legal heirs i.e. Shantilal Mohanbhai, Arvindbhai Mohanbhai, Janaben Mohanbhai, Savitaben Mohanbhai, Shardaben Mohanbhai and Laxmiben Mohanbhai were entered into the revenue record vide mutation entry No.1832 on 10.08.1988 as joint occupants and the entry No.1832 was mutated and certified on 30.11.1988.
2.5 Thereafter, one Ramanbhai Ramabhai Rathodiya, son of Ramabhai Koyabhai Rathodiya preferred revenue proceedings before the Deputy Collector, Vadodara by challenging Entry No.1832.
The Deputy Collector, vide its order dated 30.04.1993, rejected the revision application. Page 4 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022
C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 The said order came to be challenged by Ramanbhai Rathodiya by filing RTS Appeal before the Collector, Vadodara, which also came to be rejected by the Collector, Vadodara vide order dated 08.09.1993.
Being aggrieved by the said order, Ramanbhai Rathodiya preferred revision application before the Special Secretary, Revenue Department, which also came to be rejected vide order dated 12.09.2001. 2.6 Said Ramanbhai Ramabhai Rathodiya filed Special Civil Suit No. 12 of 1992 before the Court of Civil Judge (S.D.), Vadodara against Shantilal Mohanbhai Rathodiya, other legal heirs of Mohanbhai Koyabhai Rathodiya, Bhaijibhai Koyabhai Rathodiya and others. In the said proceedings, it appears that pursuant to the consent terms purportedly arrived at between the parties, a consent decree was passed in the said suit on 16.07.1993.
Page 5 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 As per the consent terms, 1/3rd share in the said properties comes to Bhaijibhai Koyabhai Rathodiya, 1/3rd share comes to heirs of Mohanbhai Koyabhai Rathodiya and remaining 1/3rd share comes to the heirs of Ramanbhai Koyabhai Rathodiya.
Further, on basis of the above referred consent decree, mutation entry no. 2570 was mutated in the revenue record on 20.12.1996.
This mutation entry was, however, rejected on the ground that the land was of new tenure and no permission of competent authority, as stipulated under Section 5 of the Act, was sought for before partition of the said parcels of land.
2.7 In view of the above, the property in question continued to remain in the revenue records only in the name of heirs of Mohanbhai Koyabhai Rathodiya. Page 6 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 2.8 On death of Shantilal Mohanbhai Rathodiya on 17.01.1997, mutation entry No.2949 was recorded in the revenue records for bringing his legal heirs on record as joint holders of the aforesaid properties. 2.9 On 04.03.2014, again on basis of the purported consent decree dated 16.07.1993 in Special Civil Suit No.12 of 1992, mutation entry bearing No.3788 was mutated in the revenue record in respect of the aforesaid lands.
While certifying, however, it was stated that pursuant to the notice under section 135D, it was mentioned that some of the persons to whom notice was issued had not agreed to the mutation entry and accordingly the said mutation entry was certified only to record the same in the column of other rights. 2.10 Thereafter, an application is filed by one Arvindbhai Mohanbhai Rathodiya and others before the Page 7 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 Collector, Vadodara, and the Collector passed an order on 23/27.10.2015 granting permission for converting the land bearing survey No.99 situated at Village Vadsar, Taluka and District Vadodara admeasuring 4148 Sq. Meters (now included in TP Scheme No. 32 of Vadsar and bearing Final Plot No. 37 admeasuring 2489 Sq. Metres) to old tenure for non-agricultural residential purpose to enable the owners to sell the same to Hemesh Natubhai Patel and Nilesh Jashbhai Patel, subject to various conditions imposed in that order.
Prior to passing of the above order, an amount of Rs. 59,73,600/- was deposited towards premium on 03.09.2015 and in view of the above, that order was given effect in the revenue record vide Entry No.3782 on 05.11.2015 which was certified on 17.12.2015. 2.11 Accordingly, legal heirs of Mohanbhai Koyabhai Rathodiya executed a registered sale deed on 05.11.2015 in favour of Hemesh Natubhai Patel and Nilesh Jashbhai Page 8 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 Patel in respect of land bearing survey no. 99 admeasuring 4148 Sq. Meters.
The names of the purchasers i.e. Hemesh Natubhai Patel and Nilesh Jashbhai Patel were entered in the revenue record vide mutation entry no. 3873 dated 05.11.2015, which came to be certified on 28.12.2015. 2.12 Thereafter, the Collector, Vadodara vide order dated 05.08.2016 granted non-agricultural permission to the purchasers and mutation entry No.3911 to that effect was entered in the revenue record on 27.09.2016, which was certified on 07.11.2016.
2.13 Pursuant thereto, Hemesh Natubhai Patel and Nilesh Jashbhai Patel applied for development permission and on 12.08.2016 the same was granted by the Respondent No.2 - Authority.
2.14 The order dated 05.08.2016 passed by the Page 9 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 Collector came to be challenged by one Zaverbhai Bhaijibhai Rathodiya by way of filing Revision Application before the Special Secretary, Revenue Department, which came to be rejected vide order dated 07.06.2018.
The mutation entry No.3995 to that effect was entered in the revenue record, which was certified on 23.07.2018.
2.15.1 Mutation entry No.3873, which was qua sale in favour of Hemesh Natubhai Patel and Nilesh Jashbhai Patel was challenged by the legal heirs of other two branches of deceased Koyabhai i.e. Bhaijibhai Koyabhai (deceased) and Ramabhai Koyabhai (deceased) before the Deputy Collector by way of Appeal Nos.4 of 2016 and 87 of 2016.
The Deputy Collector rejected the said appeals vide its order dated 13.03.2019.
Page 10 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 Effect of the same was given in the revenue record vide mutation entry no. 4037 dated 16.03.2019. 2.15.2 Further, order of Deputy Collector was challenged by way of filing revision application before the Collector, which was rejected vide order dated 30.12.2019, and effect of which was given in the revenue record vide mutation entry No.4114 dated 19.01.2020. 2.15.3 Being aggrieved by the above order dated 30.12.2019 passed by the Collector, Vadodara, preferred Revision Application bearing No.HKP/VDD/184/2020 before the Special Secretary, Revenue Department which is pending adjudication.
2.15.4 It is noted that the heirs of Bhaijibhai Rathodiya and Ramabhai Rathodiya were aware of the sale executed in favour of Hemesh Natubhai Patel and Nilesh Jashbhai Patel since prior to the year 2016. Page 11 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 2.16 In the interregnum period, the subject property came to be purchased by petitioner No.1 - Shreeji Developers from its erstwhile owners Hemesh Natubhai Patel and Nilesh Jashbhai Patel by executing a registered sale deed dated 12.09.2016.
Pursuant to which, name of Shreeji Developers was entered into the revenue record vide mutation entry No.15878 dated 28.10.2016.
2.17 The plaintiffs of Special Civil Suit No.12 of 1992 made an application at Exh.39 before the competent Civil Court to pass final decree for partition in terms of preliminary decree dated 16.07.1993.
The competent Civil Court disposed of the said application vide order dated 22.03.2019. 2.18 Pursuant to the above, the plaintiffs preferred Page 12 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 an application before the Competent Authority to mutate their names in the revenue record and accordingly their names were mutated vide entry No.4050.
Prior to certifying the above referred entry, no mandatory notice under section 135-D was served.
Pursuant to that, several other heirship entries bearing nos. 4165, 4166, 4167, 4168 and 4169 came to be mutated in the revenue record.
2.19.1 Thereafter, the legal heirs of Mohanbhai Koyabhai Rathodiya - Shantilal Mohanbhai Rathodiya, being aggrieved by the order dated 22.03.2019 passed in Special Civil Sulit No.12 of 1992 has preferred a Special Civil Application No.9505 of 2019 before this Court against the legal heirs of deceased - Ramanbhal Ramabhai Rathod and legal heirs of deceased Bhaijibhal Koyabhai Rathod, which is pending for adjudication; Page 13 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 2.19.2 Further, he has preferred RTS Appeal/Delay Case No. 20/2019 before the Deputy Collector challenging mutation entry Nos.3788 and 4041.
The said delay application came to be rejected by the Deputy Collector vide order dated 20.08.2020. 2.19.3 Being aggrieved and dissatisfied by the above order, he has preferred RTS Appeal along with delay condonation application bearing No.RTS Appeal/Delay No.91/2022, which is still pending for adjudication; 2.20 Further, the other legal heirs of deceased Mohanbhai Koyabhai Rathodiya also preferred RTS Appeal before the Deputy Collector, Vadodara for setting aside mutation entry No.4050 and heirship entries Nos.4165, 4166, 4167, 4168, 4169. Since there was a delay in preferring RTS Appeal, legal heirs of deceased - Mohanbhai Koyabhai Rathodiya has also preferred an application for condonation of delay being RTS Page 14 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 Appeal/Delay No.14/2022, which is pending for adjudication.
2.21 Thereafter, the petitioner No.1 applied for development permission for residential cum commercial purpose before the competent authority and paid requisite fees of Rs. 67,07,590/-. After conducting necessary inquiry, the petitioner No.1 was granted development permission vide Rajachhithi No.Ward-4/HB/87/2021-2022 dated 18.02.2022.
2.22.1 Further, though petitioner No.1 initiated steps to develop the subject land and invested considerable amount, he was served with a notice issued by respondent No.3 dated 22.04.2022, whereby the petitioner No.1 was informed that with reference to the development permission dated 18.02.2022, objection has been received from Manjulaben D/o Ramanbhai Rathodiya and petitioner No.1 was asked not to carry out construction work and was further asked to produce Page 15 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 relevant documents within a period of 3 days, despite the fact that the petitioner No.1 had already submitted all the relevant documents on 23.02.2022. 2.22.2 Upon such notice being served, petitioner No.1 immediately approached the concerned authority and requested for copy of the objections submitted by Manjulaben, however copy of the same was not provided to the petitioner.
Further, petitioner No.1 also pointed out that on 23.02.2022, the relevant documents regarding ownership of petitioner No.1 have already been produced by petitioner No.1.
2.22.3 Despite the above and without considering the fact that no construction work was carried out by the petitioner, respondent No.3, without giving any opportunity of hearing to the petitioner, straight away, vide order dated 29.04.2022, stayed the development Page 16 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 permission granted to the petitioner.
2.22.4 Upon receiving the impugned order, petitioner No.1 immediately addressed a detailed communication to respondent No.3 by pointing out that petitioner No.1 is a bona fide purchaser of the property in question and documents pertain to the ownership of petitioner No.1 were already submitted on 23.02.2022 and in the interregnum, petitioner No.1 has executed registered sale deed on 29.04.2022 in favour of Shreeji Developers - petitioner No.2 herein for the subject land.
Further, prior to passing of the impugned order, copy of the so-called objections were also not provided to the petitioner.
Further, on 04.05.2022, the petitioner No.1 obtained copy of the purported objections and upon perusal of the purported objections, the present petitioners were shocked to notice that the purported objections are supposedly Page 17 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 submitted by Respondent No.4 on 24.02.2021 even prior to grant of Rajachitthi dated 18.02.2022. 2.23 It is this impugned order dated 29.04.2022, which is challenged by the petitioners before this Court.
3. Heard Mr. R.S. Sanjanwala, learned senior advocate with Mr. Rushabh H. Shah, learned advocate for the petitioners, Mr. Meet Thakkar, learned AGP for respondent No.1 - State Authorities, Mr. Nilesh Pandya, learned advocate for respondents No.2 and 3 and Mr. Mehul S. Shah, learned senior advocate with Mr. Jenil M. Shah, learned advocate for respondent No.4.
4. Rule. Learned advocates waive service of notice of rule on behalf of the respective respondents.
5. Initially, on 17.05.2022, this Court has issued notice and on 20.03.2022, interim relief was granted by this Court. Further, on 01.09.2022, the interim relief is Page 18 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 vacated in Civil Application No.1 of 2022 of Special Civil Application No.9584 of 2022. Thereafter, today, the present petition is heard for final disposal. 6.1 Learned Senior Advocate Mr. R.S. Sanjanwala for the petitioners has submitted that the subject land was re-granted under the Bombay Inferior Village Watans Abolition Act, 1958 to one Mohanbhai Koyabhai Rathodiya. Under Section 5(3) of the said Act mandates restriction on transfer or partition by metes and bound of the land re-granted without previous sanction of the Collector. He has further submitted that no claim has been made by the private respondents for grant under the provisions of the Bombay Inferior Village Watans Abolition Act, 1958. He has further submitted that after the demise of Mohanbhai Koyabhai Rathodiya, on 12.07.1988, the names of his legal heirs were entered in the revenue record vide mutation entry No.1832. He has further submitted that legal heirs of Bhaijibhai Rathodiya and others have also tried to mutate their names on Page 19 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 basis of the consent decree vide mutation entry No.2570 but the same came to be rejected on the ground that the land was of new tenure and no prior permission of competent authority was obtained. Even at that stage, appropriate proceedings were not instituted by legal heirs of Bhaijibhal Rathodlya.
6.2 He has further submitted that no further steps for obtaining requisite permission from the competent authority under the Bombay Inferior Village Watans Abolition Act, 1958 were taken and the land continued in the name of legal heirs of Mohanbhai Koyabhai Rathodiya. He has further submitted that the Collector vide its order dated 23/27.10.2015 granted permission to convert the subject land from new tenure to old tenure. He has further submitted that on 05.11.2015, by way of registered sale deed executed by legal heirs of Mohanbhai Koyabhai Rathodiya in favour of on Hemesh Patel & Nilesh Patel, the mutation entry No.3873 is also effected which was subsequently challenge by the legal Page 20 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 heirs of Bhaijibhai Rathodiya and the same was also rejected by Deputy Collector vide order dated 13.03.2019 and by Collector vide order dated 30.12.2019 and against that the revision is pending before learned S.S.R.D. He has further submitted that on 05.08.2016 the Collector granted non-agricultural use permission to the purchasers, which also came to be challenge by legal heir of Bhaijibhai Rathodiya before the SSRD and the same was also rejected vide order dated 07.06.2018. He has further submitted that on 12.08.2016 the Collector granted development permission to the purchasers and this is not subjected to any challenge.
6.3 He has further submitted that on 12.09.2016 subject property came to be purchased by petitioner No.1 by executing registered sale deed and thereafter, mutation entry No.15878. He has further submitted that the plaintiffs of Special Civil Suit No.12 of 1992 applied vide Exh.38 to the learned Civil Judge to grant final decree for partition in terms of preliminary decree dated Page 21 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 16.07.1993. He has further submitted that the learned Civil Judge disposed of the application by order dated 22.03.2019 which is also subjected to challenge by the legal heirs of Shantilal Mohanbhai Rathodiya by preferring Special Civil Application No.9505 of 2019 which is pending before this Hon'ble Court. He has further submitted that on 09.08.2019 the petitioner No.1 has applied for development permission after payment of requisite fees amounting to Rs.67,07,590/- from the authority. He has further submitted that on 24.02.2021 the respondent No.4 submitted objections before the authority concerned against grant of development permission. He has further submitted that on 18.02.2022 the petitioner was granted development permission and on 23.02.2022 the petitioner was called upon by the authorities to submit again all relevant documents and the petitioner submitted all the necessary documents evidencing ownership of petitioner No.1 over the subject property. He has further submitted that on 22.04.2022 since the fact that all relevant documents pertaining to Page 22 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 ownership were already provided by the petitioner, the petitioner was served with a show cause notice and was asked to produce relevant documents. He has further submitted that on 29.04.2022 the authorities straight away without affording any opportunity of hearing, suspended the development permission granted in favour of the petitioner.
6.4 He has further submitted that respondent No.4 has knowledge about the registered sale deed dated 05.11.2015 executed in favour of Hemesh Patel and Nilesh Patel and registered sale deed dated 12.09.2016 executed in favour of petitioner No.1 has not been challenged by filing appropriate proceedings by respondent No.4 or any other legal heirs of Bhaijibhai before any competent court. He has further submitted that in view of this background, the respondent No.4 has no locus to oppose the development permission of the present petitioners as the respondent No.4 cannot claim any right, title or interest by virtue of consent decree Page 23 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 dated 16.07.1993 as over these years, the so called consent decree has never been acted upon, and therefore, has now become unenforceable in the eyes of law. He has further submitted that the respondent authorities while granting the development permission under the provisions of Gujarat Town Planning and Urban Development Act, 1976 cannot decide or go into the question regarding title of the land in question and therefore, he has submitted that the powers which are exercised by the respondent authority under Section 29 of the Gujarat Town Planning and Urban Development Act, 1976 is similar to the powers exercised by the Collector under Section 65 of the Land Revenue Code for non-agriculture permission.
6.5.1 In support of his submissions, he has relied upon the judgments of the Honb'le Apex Court in the cases of (i) State of Punjab & Ors. versus Gurdev Singh & Ashok Kumar reported in AIR 1992 SC 111, (ii) Tulsan versus Pyare Lal reported in (2006) 10 SCC 782, Page 24 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022
(iii) Chanda C. Kadam versus Additional Collector & Competent Authority reported in (2013) 16 SCC 371 and
(iv) New India Cooperative Housing Society Limited versus Municipal Corporation of Greater Mumbai reported in (2008) 9 SCC 694.
6.5.2 Further, in support of his submissions, he has relied upon the judgments of this Court in the cases of
(i) Tusharbhai Harjibhai Ghelani versus State of Gujarat reported in 2019 (4) GLR 2578, more particularly para 22, 35 and 39 are relevant and (ii) Anil Developers versus State of Gujarat reported in 2016 JX (Guj.) 698. 6.6 He has further submitted that the respondent authority has also acknowledged in affidavit-in-reply that they do not have any powers to go into the question pertaining to title and Rule 3.3.1.1 of G.D.C.R. Rules, 2017 is relevant to refer for that very purpose. He has further submitted that the petitioners are bona fide purchasers for value and the petitioner has invested huge amount for purchasing the land in question and Page 25 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 pursuant to execution of registered sale deed, the petitioner has paid fees amounting Rs. 67,07,590/- for obtaining development permission and as the petitioner has invested huge amount in initiating steps for developing the subject land, the impugned order is causing great prejudice to the petitioners since the petitioners are incurring huge losses on day-to-day basis. He has referred the affidavit-in-reply filed by respondent No.4 and has submitted that in the affidavit-in-reply the respondent No.4 has narrated several irregularities committed by the petitioners while obtaining development permission which are in breach of G.D.C.R. Rules, 2017 and has submitted that such irregularities is raised first time before this Court and the same is not permissible under the law. He has further submitted that the points of law, which are raised by the respondents are answered by the aforesaid cited judgments, therefore, he prays to allow the present petition by exercising the power conferred under Article 226 of the Constitution of India by quashing and setting aside the impugned Page 26 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 communication passed by the respondent authority. 7.1 Per contra, learned Senior Advocate Mr. Mehul S. Shah appearing for respondent No.4 has submitted that the various proceedings is initiated as earlier stated by learned Senior Counsel for the petitioners. He has relied upon the consent pursis which is produced on record rd wherein, the 1/3 share is given pursuant to the consent pursis. He has further submitted that on the basis of that pursis, consent decreed and the decree remained challenged and attained the finality, and therefore, the right of respondent No.4 cannot be disturbed unless the decree is challenged by the petitioners. He has further relied upon the revenue entry and has submitted that the N.A. permission is granted for residential purpose which is sought by the petitioners. He has further submitted that the sale deed in favour of the petitioners is executed on 12.09.2016 and thereafter, the matter is proceeded further. Thereafter, the petitioners have applied for development permission and thereafter, the respondent Page 27 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 No.4 have approached the respondent corporation by filing objection against the development permission and thereafter, the respondent corporation has issued show cause notice to the petitioner and the petitioner was not satisfied with the query raised in the show cause notice by the respondent corporation, the respondent corporation has suspended such development permission by communication dated 29.04.2022.
7.2 He has further submitted that it is also relevant to note that though the respondent corporation has suspended such permission and meaning thereby, the petitioner cannot further develop the land in question and cannot enter into the transaction but on the very same day i.e. on 29.04.2022, the sale deed is executed by petitioner No.1 in favour of petitioner No.2 and this shows gross conduct of the petitioners which is with a view to define any legal proceedings.
7.3 He has further submitted that the affidavit-in-reply filed by the respondent corporation is also supporting the Page 28 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 case of the respondent No.4 to some extent. He has further submitted that it is the duty of the respondent corporation to take appropriate action but it is found from the reply to some extent that the corporation is shirking the responsibility to discharge its statutory duty in the present matter. He has further submitted that the void order is required to be declared.
7.4.1. In support of his submissions, he has relied upon the judgments of the Hon'ble Apex Court in the cases of (i) Gurdev Singh & Ashok Kumar (supra), more particularly para 5, 6 & 8 are relevant, (ii) Tulsan versus Pyare Lal reported in 2006 (0) AIJEL-SC-38029 and more particularly, para 13 & 16 are relevant, and has submitted that the consent decree is in favour of the predecessor entitled of respondent No.4. (iii) Chanda C. Kadam (supra), wherein the action is dehors under the provisions of law, (iv) New India Cooperative Housing Society Limited (supra).
7.4.2. In support of his submissions, he has relied on Page 29 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 the judgments of this Court in the cases of (i) Laxmanbhai Rambhai Jalu versus Surat Municipal Corporation of the City of Surat reported in 2022 JX (Guj.) 1 (ii) Anil Developers versus State of Gujarat reported in 2016 (0) AIJEL-HC-235505.
7.5 He has further submitted that since the conduct of the petitioners is against the provisions of law and if looking at the impugned communication by which the petitioner is aggrieved, it transpires that such communication dated 18.02.2022 is issued pursuant to objection raised by respondent No.4 and by asking to supply necessary documents and on non-supply of document, the communication dated 29.04.2022 is issued and therefore, there is no error committed by the respondent authority by suspending the development permission until otherwise irreversible situation will be created if the petitioner is permitted to develop the land in question and the rights of many persons will be jeopardized in future, if any order is passed against the petitioners and in the facts and circumstances of the Page 30 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 present case, the respondent authority has rightly considered the objection raised by respondent No.4 in proper perspective.
7.6 He has relied upon the allotment permission granted on 18.02.2022 wherein there is reference of application dated 09.08.2019 for obtaining such permission.
7.7 He has further submitted that there also, such permission is governed by the necessary Rules of G.D.C.R. Rules, 2017. He has also pointed out the order th passed by learned 11 Additional Civil Judge, Vadodara dated 22.03.2019 whereby the learned Court has disposed of the application on drawing the final decree as preliminary decree is already drawn. He has also pointed out from the consent pursis that the right is 1/3rd of the every stakeholder who has signed that consent decree and the said decree is never challenged by petitioners. 7.8 He has relied upon Rule 3.6.1 of G.D.C.R. Rules, Page 31 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 2017 and has submitted that said Rule expressly stipulated that the development permission is required to be withheld when the ownership changes after the development permission is granted until such time new owner is brought on record and revised development permission is granted by the respondent authority. He has further submitted that in the present case, on 29.04.2022 the petitioner No.1 has transferred the property in favour of petitioner No.2 and hence the present development permission in favour of petitioner No.1 is required to be withheld till the time the petitioner No.2 applies for a revised development permission and the same is granted by the concerned authority.
7.9 He has further relied upon Rule 3.6.2 of G.D.C.R. Rules, 2017 and has submitted that since there was no architect/engineer on record on the date of grant of development permission since the two architects/engineers of the petitioner No.1 - Anjali Associates and Mayur B. Patel had retired from the project on 12.03.2019 and Page 32 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 20.01.2022 respectively, hence the development permission is required to be withheld till the time, and the said irregularities are rectified as per the said Rule. He has further submitted that an architect/engineer is required for the very purpose.
7.10 He has further relied upon Rule 3.7 of GDCR Rules, 2017, and has submitted that the petitioners have made false statements and suppressed material facts while obtaining the said permission since the petitioner had intentionally suppressed the consent decree dated 16.07.1993 as well the final decree dated 22.03.2019 while applying for development permission and moreover, when the petitioner was called upon by the respondent No.3 at that point of time also, the petitioner has not disclosed the fact before respondent No.3 by producing relevant documentary evidence. Therefore, on 22.04.2022 the notice is issued by respondent No.3. He has further submitted that it is also coming on record that the abovementioned aspect is not mentioned even in communication dated 23.02.2022. He has further Page 33 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 submitted that the N.A. permission dated 05.08.2016 was granted to the predecessors of the petitioner only for residential purpose and He has further submitted that it is admitted fact that the land in question is being used for commercial use also and hence while issuing order for development permission, specific condition was imposed on the petitioners that the development permission would be issued only if the petitioners obtain a revised N.A. permission for commercial use, however, till date no such revised N.A. permission has been applied for by the petitioners.
7.11 He has further submitted that the conduct of the petitioners is also required to be considered as the petitioners were never served by notice issued by this Court by order 17.05.2022 and the respondent No.4 has refused by disclosing incorrect fact and therefore, on 20.05.2022, this court has passed order of status qua which is subsequently vacated in civil application by order dated 01.09.2022.
Page 34 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 7.12 He has prayed that considering the overall facts and aspect of the matter, the present petition is required to be dismissed with appropriate cost, as the petitioners are trying to abuse the process of law. 8.1 Learned advocate Mr. Nilesh Pandya appearing for the respondent Nos.2 & 3 has submitted that the respondent corporation has filed its affidavit and has initiated necessary action against the present petitioners, in accordance with law. He has drawn the attention of this Court towards affidavit-in-reply and has submitted that as per Rule 3.3.1.1. of G.D.C.R. Rules, 2017, the competent authority did not consider acceptance of correctness, confirmation, approval or endorsement of the title, ownership and easement right of the buildings is proposed and by considering this provision, the corporation has sanctioned the development permission to the petitioners.
8.2 He has further submitted that as per the averments made in the affidavit-in-reply and in view of the claim Page 35 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 made by respondent No.4, he has right, title or interest in the disputed property and has also filed a revision application against the order of Collector, Vadodara and the same is pending before learned S.S.R.D. under Rule 108(6) of Gujarat Land Revenue Rule, 1972, and therefore, the Town Development Department has informed the petitioner that TDO is going to obtain legal advice from the legal department and in the meantime, the petitioner may not construct or develop the property in question, however, in spite of the instruction given to the petitioners, the petitioner has continued the construction and therefore, the respondent No.4 has aggressively objected against the grant of development permission and in this circumstance, the corporation by letter dated 29.04.2022 has suspended the development permission which is under challenge. He has further submitted that ultimately it is a dispute between private parties i.e. petitioners and respondent No.4 with regard to the property in question. He has further submitted that now subsequently, the petitioner has also served Page 36 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 with the copy of the order passed by the learned S.S.R.D. dated 22.07.2022 by which the order of Collector is confirmed by learned S.S.R.D. and therefore, the respondent corporation will abide by the any order passed which may be passed by this Court in the facts and circumstance of this case.
9.1. I have heard learned advocates appearing for the respective parties. I have considered the averments made in the present petition. I have gone through the documents annexed with the present petition as well as affidavit-in-reply filed by the respective parties. 9.2 I am of the view that the present petition is essentially a dispute between the private parties i.e. petitioners and respondent No.4, which pertains to the property in question as well as various legal proceedings are connect with the matter under the provisions of the Bombay Inferior Village Watans Abolition Act, 1958, under the provisions of Land Revenue Code, under the provisions of Civil Procedure Code, 1908 as well as Page 37 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and it transpires that the petitioner No.1 is a bona fide purchasers, who has purchased the land from erstwhile owner and the thereafter recently respondent No.2 has purchased the land from the respondent No.1.
9.3 It also transpires from the record that the said development permission issued on 18.02.2022 is suspended by communication dated 29.04.2022 and respondent No.4 has raised serious objection against the granting of said development permission. It is also relevant to note that the provisions of Rules 3.3.1.1, 3.6.1 & 3.6.2 of G.D.C.R. Rule, 2017 are relevant to decide the present dispute in question, which reads as under:
"3.3.1. Grant of a Development Permission:-
3.3.1.1 Competent Authority does not constitute acceptance of correctness, confirmation, approval or endorsement of: a. Title, ownership, and easement rights of the Building‐unit for Page 38 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 which the building is proposed; b. Variation in area from recorded areas of a Building‐unit; c.
Location and boundary of Building‐unit; d. Workmanship, soundness of material and structural safety of the proposed building; e. Structural reports and structural drawings and shall not bind or render the Competent Authority liable in any way in regard to (a), (b),
(c) (d) and (e) above.
3.6 Procedures for Obtaining Development Permission:-
3.6.1 Application content, format and attachments:-
1. Application for Development Permission shall be made by the Owner of the Building units/land on which the building is proposed in the format prescribed in Form No. 5 for Buildings or for Sub‐division or for Amalgamation and Form No. 5A for Brick Kiln, Mining and Quarrying. The application shall be accompanied with, drawings, specifications and documents as prescribed in Schedule 2A for Building or for Sub‐division or/ and Amalgamation and Schedule 2B for Brick Kiln, Mining and Quarrying. The format for submission of drawings, specifications and documents is specified in Schedule 2C. The receipt Page 39 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 of the different payment leviable under the Act and the regulations shall also be attached with the application.
2. Any person intending to development single residential building of area up to 125 sq.mt, may be permitted to commence construction without seeking permission in the manner specified in 1 above. In such matters the owner shall see that:-
i. The person on record, appointed by the owner, shall ensures that the development commenced is in compliance with these regulations; ii. The plans and documents, in duplicate, for the construction are, within 30 days from the date of commencement, submitted to the competent authority. Such plans and documents shall be those which are prescribed to be submitted along with the application in Form 5. (Form No. C) iii. The competent authority shall handover the second copy of plan to the applicant duly acknowledged, which shall be kept for inspection on site.
Page 40 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 iv. The licensed Engineer/Architect along with the applicant shall submit an affidavit prescribed in Form - 17.
3. The Applicant, as per time to time directions by the competent authority or state government shall have to apply online.
4. The competent authority may as per time to time direction of the state government or otherwise adopt, for the scrutiny of development permission application, the automated scrutiny system.
3.6.2 Scrutiny Fees:-
Scrutiny Fees and other charges for obtaining a Development Permission shall be determined by the Competent Authority and are listed in Schedule 1."
9.4 It is also relevant to note that the ratio laid down in the judgments cited by the respective parties are binding to this Court but in the present case there is apparently non-compliance or breach of the said Rules of Page 41 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 the G.D.C.R. Rules, 2017. Though I am in agreement with the submissions made by learned advocate for the petitioners that the respondent corporation cannot decide the dispute about the title. However, corporation can certainly look into such objection raised on the basis of document of title and to avoid further complications of the subsequent third party purchasers, if the land is developed and sold by the developers and therefore, I am not in the agreement to the contention that the respondent corporation has no power to even consider such objection raised by the respondent No.4. It is also relevant to note that Municipal Corporation being statutory authority, has to perform its statutory duty at right time and in appropriate cases and one of the duty to permit and thenafter to keep track of the such development activity in accordance with law and in the present case the respondent corporation has acted promptly.
9.5 Further, I found that in view of the provisions of Page 42 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 G.D.C.R. Rules, 2017, the development permission which is granted by the corporation is suspended in pursuant to the dispute raised by the respondent No.4 and such action is within the authority of the respondent No.2 -
corporation. Though, the proper opportunity of hearing/making of representation is not given to the petitioners but since petitioner No.1 has further executed sale deed on 29.04.2022 in favour of the petitioner No.2, which speaks about conduct of the petitioners and therefore, the discretionary powers under Article 226 of the Constitution of India is required to be considered with more care and caution in present case, and I found that there is no perversity or illegality as the respondent corporation can exercise the powers in view of the fact that Authority who has granted permission can also suspend or cancel the permission and provisions of Section 27 to 37 of the Gujarat Town Planning and Urban Development Act, 1976 as well as in view of the provisions of G.D.C.R. Rules, 2017 and I found that there is no illegality or impropriety committed by the Page 43 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 respondent corporation in issuing communication dated 29.04.2022, and I found that ends of justice would meet as the dispute is substantially between the petitioners and respondent No.4 about the title in the property which cannot be decided by corporation but issue pertains to the said development permission, which is issued to the petitioners is required to be considered afresh after giving opportunity to respective parties to present their case before Authority.
9.6 It is appropriate in the interest of justice to direct the respondent No.2 - Corporation to give appropriate opportunity to represent their case to the petitioners and respondent No.4, by accepting their submissions in writing and shall take fresh decision, in accordance with law. It is clarified that the earlier communication dated 29.04.2022 will not come in way of either of the parties.
10. In view of above observation, the following order is Page 44 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 passed.
10.1 It is always open for the petitioners to file appropriate application for revised N.A. permission or development permission, if it is permissible under the law.
10.2 The respondent No.2 - Corporation shall hear the present petitioners as well as respondent No.4, within a period of 3 weeks from today, after providing proper opportunity by calling them to submit their submission by way of written submissions within reasonable time period, and will take fresh decision by considering the submissions made by both the parties, in accordance with law, by keeping in mind the provisions of law and G.D.C.R. Rules, 2017, Gujarat Town Planning and Urban Development Act, 1976, etc. and by considering the relevant materials available on record with the corporation and decide independently without being influenced by the earlier communication issued by the respondent corporation or order passed by this Court. Page 45 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022 C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022 10.3 Thus, in view of the above stated directions the present petition is disposed of. Rule is discharged.
Direct service is permitted.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 46 of 46 Downloaded on : Fri Oct 14 01:13:35 IST 2022