Gujarat High Court
Devbaug Sanskar Mandal vs Vijayrajsinhji Virbhadrasinhjigohil ... on 26 October, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/LPA/1246/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1246 of 2014
In
SPECIAL CIVIL APPLICATION NO. 14843 of 2005
With
SPECIAL CIVIL APPLICATION NO. 14843 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DEVBAUG SANSKAR MANDAL....Appellant(s)
Versus
VIJAYRAJSINHJI VIRBHADRASINHJIGOHIL & 3....Respondent(s)
================================================================
Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Appellant(s) No. 1
MR DHAWAN M JAYSWAL, AGP, for the Respondent(s) No. 3
MR A J PATEL, ADVOCATE for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 1 - 4
================================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
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C/LPA/1246/2014 JUDGMENT
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 26/10/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is filed by original respondent No.3 to challenge the judgment of learned single Judge dated 16.10.2014. This litigation has a long history. Briefly stated, the facts are as under:
2. The predecessor-in-title of respondent Nos.1 & 2 herein, original petitioners, the ex-ruler of Bhavnagar State, was the owner of a parcel of land situated in City Survey No.2271 of Bhavnagar. The land owner desired to convert this land to non-agricultural use and sell individual plots for residential purpose. He, therefore, presented a plan along with a detailed map to the Collector of Bhavnagar for granting non-agricultural use permission. The non-agricultural plan was passed on 29.11.1960 by the Collector granting such permission to change the user of the land. As per the plan, the land was allowed to be plotted as several residential plots, which would include common roads and common plot admeasuring 8619 sq. yds. The land owner thereafter sold several parcels of these plots to individual owners. A copy of one such sale deed dated 27.11.1961 is produced as Annexure R-1 to the main petition. About detailed terms and conditions of the sale, we will make reference at a later stage.
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C/LPA/1246/2014 JUDGMENT
3. Sometime in the year 1971, the land owner again approached the Collector for a revised development plan to be passed. This was on the premise that, according to GDCR, only 5% of the land had to be set apart for common plot. According to the land owner, area of 3691 sq. yds. of the common plot was in excess of such minimum requirement. An application was, therefore, filed to plot out 3220 sq. yds. of this common plot into individual residential plots and to permit the land owner to sell the same as was done in case of other plots. Collector, Bhavnagar on 08.12.1971 granted such permission and allowed the land owner to sell additional 3220 sq. yds. of the land out of 8619 sq. yds of common plot.
3.1 The present appellant representing the purchasers of individual plots who had formed a proposed society objected to any such permission being granted by the Collector. Such objections were, however, not accepted.
3.2 Nothing happened thereafter for nearly 20 years. Some time in the year 1992, the Collector imposed an order of status quo against the owner of the land utilizing such additional land in any manner. Such order was not challenged by the owner and few years had passed by when the Collector issued a show cause notice dated Page 3 of 10 HC-NIC Page 3 of 10 Created On Fri Oct 30 00:37:53 IST 2015 C/LPA/1246/2014 JUDGMENT 10.04.2000 calling upon the original petitioners why the permission dated 08.12.1971 should not be cancelled. The petitioners strongly opposed any such move. The Collector, Bhavnagar, however, passed order dated 12.06.2001 and recalled the earlier order dated 08.12.1971, inter alia, on the ground that no part of the common ground could have been sold or allowed to be sold to the detriment of the interest of the individual plot owners.
4. The petitioners challenged such order of Deputy Collector, however, unsuccessfully before SSRD who dismissed the revision petition by order dated 19.02.2005. The petitioners thereafter filed a writ petition which came to be allowed by learned single Judge on the ground that the present appellant was only an unregistered society and had no right over the plots in question.
5. The individual plot owners have challenged this order by filing this LPA. The appeal is pursued by one Dev Baug Sanskar Mandal which is not, admittedly, a registered society, but claims to be an association of plot owners of the said scheme. In any case, Shri Ranjitsinh Ravubha Jadeja, who is shown to be President of this Mandal, himself is the owner of plot No.36/C of Dev Baug Estate. According to the appellant, the Collector could not have granted permission to the erstwhile owner once the entire plot was sub- divided into various plots providing internal roads and common plot as presented in the plan. Counsel for the appellant submitted that, Page 4 of 10 HC-NIC Page 4 of 10 Created On Fri Oct 30 00:37:53 IST 2015 C/LPA/1246/2014 JUDGMENT upon sale of the plots, the original owner divested himself of any right, title or interest over such common area and his application for further development could not have been accepted.
6. On the other hand, learned counsel Mr.A.J.Patel submitted that Collector exercised his power after gross delay. The GDCR required setting apart 5% of the total area towards common plot. Even after discarding the area of 3220 sq. yds., the remaining common plot would satisfy such requirement. Learned single Judge, therefore, did not commit any error.
7. The short question before us is, whether, after the original land owner sold individual plots from out of large plot area which was bifurcated as per non-agricultural permission granted by the Collector, did he retain any title over the common land ? In other words, the question is, once when a large plot is sub-divided into smaller residential plots on the basis of non-agricultural permission granted by the Collector which envisages common roads and common plot, would the erstwhile owner have any right, title or interest remaining on the common plot land ?
8. This question is to be answered in the background of the various sale deeds executed by the owner with the land purchasers. As noted, a copy of one such sale deed is produced at Annexure R-1 in which the purchaser under sale deed dated 27.11.1961 was sold a Page 5 of 10 HC-NIC Page 5 of 10 Created On Fri Oct 30 00:37:53 IST 2015 C/LPA/1246/2014 JUDGMENT residential plot admeasuring 816 sq. yds for a sale consideration calculated at Rs.6/- per sq. yd which comes to Rs.4896/-. The sale was subject to certain conditions. The relevant conditions were that, before carrying out any construction over the plot in question, the owner would obtain necessary permission from the Municipality and would carry out development subject to the conditions imposed by the Collector in his order dated 29.11.1960 for non-agricultural use. The sale deed also provided that around the plot under sale, there are common roads which would be for use of the plot owner and his successor-in-title. Condition No.7 provided that revenue for non- agricultural use would have to be paid by the purchaser for the land in question as also for the proportionate area of the common roads and the common plot falling within his share. It was specified that the plot in question admeasures 816 sq. yds and the additional area of 321 sq yds falling within the share of the purchaser out of the common roads and the common plot would make the total of 1137 sq yds. The purchaser would pay yearly revenue of Rs.23.69 falling in his share of the total land. This the purchaser is liable to pay to the government. If there is any change in the revenue in future, the seller would not be responsible for the same. Condition No.9 of the sale deed further provided that maintenance of the common roads and the common plot would be made by the individual plot owners jointly. If in future there is any need for laying down drainage or electricity lines through the common plot, the plot owners would not object to the same. The expenditure for such purpose would be borne jointly by Page 6 of 10 HC-NIC Page 6 of 10 Created On Fri Oct 30 00:37:53 IST 2015 C/LPA/1246/2014 JUDGMENT them.
9. From the above sale deed, the conditions of which, we are informed, were identical in all such sale deeds, it becomes clear that the original owner of the land, after plotting out a large chunk of the land in question into different small residential plots, did not retain any right, title or interest over any part of the entire land. Providing for common roads and common plot was part of the condition for grant of non-agricultural permission. Each owner would pay land revenue for non-agricultural use not only for the area of the land being actually sold to him, he would also pay revenue to the extent the portion of the common roads and the common plot falling within his share. It was specified that maintenance of common roads and common plot would be done commonly and jointly by the plot holders. In future if there was any need for laying down drainage or electricity, it would be done by such plot owners at their cost and nobody would object.
10. Once the plots were thus sold, each plot purchaser became the actual owner in possession of the area of the land sold to him and also would jointly own and possess his share of the common roads and the common plot. Under no circumstance, the land owner who plotted out his land and sold individual parcels of such land to individual purchasers can claim to retain his right, title or interest over the common plot. Any such conclusion which would be plainly Page 7 of 10 HC-NIC Page 7 of 10 Created On Fri Oct 30 00:37:53 IST 2015 C/LPA/1246/2014 JUDGMENT opposed to the sale deed noted above, also would lead to a highly anomalous situation. The concept of retention, possession and ownership would not be confined only to common plot but also to common roads. If the plot owners either shrink the width of the road or simply sell away the entire common plot, there will be little that the plot purchasers generally could object to. This was not the intention emerging from the sale deeds executed by the original land owner in favour of individual purchasers nor flows from the non- agricultural use permission granted by the Collector pursuant to which the land was sub-divided into small residential plots.
11. When the original petitioners thus had no right, title or interest over the land or any portion thereof after selling individual plots to individual purchasers, there was no question of granting any further permission to development of any part of the common plot. Merely because the GDCR in the impugned order has modified later on that only 5% of the land area was required to be set apart would not mean that the original land owner could claim any further permission from the Collector to develop the same, because he had already divested his title from the entire parcel of land in favour of plot purchasers. Merely because it was lawful for anyone to reduce the common plot area does not mean that Collector was duty bound to grant such permission to the petitioners since by the time he applied, they had divested the title from the entire land. When the purchasers had no title over the land, the Collector could not have Page 8 of 10 HC-NIC Page 8 of 10 Created On Fri Oct 30 00:37:53 IST 2015 C/LPA/1246/2014 JUDGMENT granted any permission for developing such land in the order dated 08.12.1971 passed by the Collector. This aspect was not examined at all. In absence of title over the land in question, the petitioners' request for passing revised plan was wrongly entertained and accepted by the Collector. No such permission by the Collector would vest any title in the purchasers since such source of title would be outside the order of the Collector. It is true that such order of the Collector survived for a long time. However, the petitioners did not act on such order by the time the Collector issued show cause notice. Admittedly, there was no development on the spot. Under such circumstance and in the background of peculiar facts of the case, we would not allow the delay to defeat the rights of the parties. The petitioners cannot claim any right over the land in question merely by virtue of delay, if they did not have any title over the land in question. In our opinion, learned single Judge committed an error in not recognizing these aspects of the matter and instead proceeding only on the premise that the society not being registered could not have objected, or that the order of the Collector was belated. In our opinion, registration of the society or otherwise would have no beaing on the present issue. Even if the society was a mere proposed society, the individual plot owners would jointly represent a certain common interest which cannot be defeated by the erstwhile land owner claiming title over the land that he had divested by virtue of piecemeal sale of the plots.
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10. In the result, the LPA is allowed. The judgment of learned single Judge is reversed. The writ petition is dismissed.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) KMGThilake) Page 10 of 10 HC-NIC Page 10 of 10 Created On Fri Oct 30 00:37:53 IST 2015