Gujarat High Court
Anilkumar Hiralal Patel vs State Of Gujarat Through Chief ... on 13 April, 2018
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.Y. Kogje
C/FA/4167/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4167 of 2009
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ANILKUMAR HIRALAL PATEL
Versus
STATE OF GUJARAT THROUGH CHIEF SECRETARY
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1,2
MR. JAINISH P SHAH(7033) for the PETITIONER(s) No. 1,2
MR SH GOHIL, AGP (1) for the RESPONDENT(s) No. 3
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,4,5,6
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Page 1 of 18
C/FA/4167/2009 CAV JUDGMENT
Date : 13/04/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. This appeal under Section 96 of the Civil Procedure Code is preferred against the judgment and order dated 04.04.2009 passed by Principal Senior Civil Judge, Gandhinagar in Special Civil Suit No.110 of 1996. Under the said suit, the appellant had sought recovery of an amount of Rs.73,56,415/- under the head of compensation /damages suffered by him. The said suit came to be dismissed under the impugned order and hence, the original plaintiff is in appeal.
2. The facts in nutshell are that the appellant had purchased agricultural plot of land with intention to start business of running a restaurant. For the said purpose, the appellant approached various Government authorities seeking necessary permissions /sanctions for setting up the restaurant on the agricultural land. Such permissions /sanctions included permission to convert the land into non-agricultural land, permission from local authorities to run business, sanction of plans for putting up construction from the local bodies, etc. It is the case of the appellant that all these authorities, who are defendants, have not attended to the application made by the appellant in time, thereby preventing the Page 2 of 18 C/FA/4167/2009 CAV JUDGMENT appellant from starting his business of running a restaurant in time and thereby causing him loss of business for which the appellant has sought damages. 2.1 The appellant further contended that for the purpose of seeking necessary permissions /sanctions, the appellant has incurred expenditure and as all the efforts and expenditure of the appellant has not resulted on account of indifference of the defendants, he has claimed compensation. He has also claimed compensation for the purpose of mental harassment which he had to undergo in the process.
3. The appellant, who appeared in person, submitted that the appellant is the owner and occupier of survey No.516/1 admeasuring 1113 sq. mtrs., which is situated in the limits of village Chandkheda, Dist. Gandhinagar. He had purchased the land from the original owner. However, on account of certain statutory restrictions, permission qua 380 sq. mtr. of land out of 1113 sq. mtrs. of land was not given as the same fell in the margin area adjacent to the national highway for which the land was required to be kept open. The, therefore, proceeded further in connection with the remaining 733 sq. mtr. of land.
3.1 It is submitted that due to deliberate, Page 3 of 18 C/FA/4167/2009 CAV JUDGMENT arbitrary and malafide inaction on the part of the defendants, who are functioning as Government officers, of the respondent authorities, the appellant was unable to commence his hotel business and thereby depriving him of earnings from the proposed hotel business. It is submitted that not only this but in his efforts to start the business, the appellant had incurred many unavoidable expenditure which has also gone waste. It is submitted that when the permissions from the defendants were sought, which was in the year 1985, the cost of construction was much lesser, but now, if at all, the appellant is required to undertake construction of the hotel, the construction cost has increased manifold and therefore, the appellant was entitled to damages and compensation.
3.2 The Party-in-Person has challenged the impugned judgment and order on the ground that the Civil Judge has failed to appreciate that the appellant had a title to the suit land and was therefore entitled to get his name mutated in the revenue record. He was also entitled to necessary permissions under the law for commencing construction of hotel on the suit land. The Civil Judge ought to have appreciated that as the authorities have not acted as per their respective duties, has led to loss of future income, business and waste of expenditure Page 4 of 18 C/FA/4167/2009 CAV JUDGMENT incurred.
3.3 It is submitted that the trial Court has erroneously proceeded consider various objections with regard to land belonging to original owner under the provisions of the Urban Land Ceiling Act, where all such objections were pertaining to survey No.517/2 whereas survey number of the appellant, though belonging to the same original owner, was survey No.516/1. 3.4 The Civil Judge has committed an error in not appreciating the fact that had the respective authorities acted in accordance with law and performed their duties in diligent manner then the appellant would have undertaken construction of the hotel on the suit land in the year 1991 itself. It is submitted that failure on the part of the authorities in not permitting the construction had enhanced the cost of construction for the period between 1991 to 1996.
3.5 It is submitted that the Civil Judge has committed an error in not believing the case of the appellant that by running business of hotel, the appellant would have easily earned income of Rs.40,000/- per month. It is submitted that the Civil Judge has failed to appreciate that in the instant case where the defendants have failed to file written statement and if Page 5 of 18 C/FA/4167/2009 CAV JUDGMENT the written statement is filed, the same is very evasive and general denials, the Civil Judge ought to have believed the case of the appellant.
3.6 It is submitted that the Civil Judge has failed to consider an important aspect that the defendant authorities had sided the builder who was owner and occupier of survey No.517/2, the land belonging to the same original owner adjacent to the suit land and disposed of by the original owner to a builder though the same was declared surplus under the Urban Land Ceiling Act. It is submitted that though survey No.517/2 was declared surplus, the defendant authorities proceeded to grant all sanctions and permissions only because the current owner of survey No.517/2 was a builder whereas the adjacent land survey No.516/1 of the appellant, though was not in dispute in connection with the Urban Land Ceiling Act, the authorities failed to grant any permission. It is strongly alleged by the appellant that the only reason why the appellant was discriminated and not supported by the authorities to commence his business of running a hotel was that the appellant did not enter into under-table dealings with such authorities. 3.7 The appellant-Party-in-Person has referred to and relied upon the judgment of the Apex Court in the case of Kumari Vs. State of Tamil Nadu, reported in 1992 Page 6 of 18 C/FA/4167/2009 CAV JUDGMENT (2) SCC, 223 in support of his claim for compensation from the State. He then relied upon decision of the Apex Court in the case of Lucknow Development Authority Vs. M.K.Gupta, reported in 1994 (1) GLH, 306, in support of his contention that liability of the State to pay compensation for loss or injury caused to a citizen on account of its arbitrary action. Party-in-Person thereafter relied upon decision of the Apex Court in the case of Common Cause, a registered Society Vs. Union of India, reported in 1996 (6) SCC, 530. He then relied upon decision of the Apex Court in the case of Bangalore Medical Trust Vs. B.S.Muddappa, reported in 1991 (4) SCC, 54, in support of his contention of accountability of administrative action, where the Apex Court has held that the administrative action is to be tested on the anvil of rule of law and fairness and justice, particularly if the competing interest of the members of the society is involved. He has then relied upon an unreported judgment of the Apex Court in the case of M/s.Atma Ram Builders P. Ltd. Vs. A.K.Tuli & Ors., in Contempt Petition (C) Nos.140-144 of 2011 dated 10.05.2011, in support of his contention that subordinate judiciary, i.e. Senior Civil Judge in the present case has not conducted the matter in proper manner, but has conducted the trial in a callas and irresponsible manner. He has also produced on record a newspaper cutting in this regard.
Page 7 of 18 C/FA/4167/2009 CAV JUDGMENT
4. As against this, learned AGP has submitted that the application is moved before the authority for the purpose of permissions converting the tenure to the land for none agricultural purpose during the pendency of proceedings under ULC Act as a power of attorney holder in respect of land situated in the limits of village Chandkheda District Gandhinagar being Survey No. 516/1 admeasuring 1113 sq. mtrs. and land is transferred by agreement to sale which is contrary to provision of ULC Act, 1976. It is pertinent to note that as per the contention raised the land was transferred by original land owner in the year 1983.
4.1 He submitted that pendency of litigation before the different forum cannot be termed as delay on the part of any authority. It is also required to be taken into consideration the locus of present applicant, as he has moved application for permission on the basis of agreement to sale during the pendency of proceedings under ULC Act.
4.2 It is submitted that suit is filed in the year 1996 and ULC Act is repealed in the year 1999 during that period the proceeding under ULC Act was pending and petition was also pending till 1999 filed by original land owner.
Page 8 of 18 C/FA/4167/2009 CAV JUDGMENT 4.3 It is submitted that as per the averment raised in civil suit about monthly earning of Rs. 40,000 is without any evidence on record therefore, the contention without any documentary and evidentiary proof unless otherwise it is supported by oral evidenced. 4.4 It is submitted that the issues which are raised in the present proceedings were not at all raised before the Ld. Trial Court cannot be taken at this stage on that ground also appeal is required to be rejected. 4.5 It is submitted that at Ex-52 specifically mention about the construction of hotel to Shivabhai Jethabhai Patel on 18.07.1991 for Survey No. 516/1 therefore, the appellant herein cannot complain that permission was not accorded by the authority. 4.6 It is submitted that it is important to mention that the application is not the original land owner and given exemption under Section 20 is also not accorded to the original land owner it is the part of record at Ex- 108 09.01.1987 as per the record petitioner has purchased the land in the year 1991 sale deed is dated 23.10.1991. 4.7 It is submitted that even issuance of notice and institution of Civil Suit must be within a period of limitation as the applicant has contended as per the Page 9 of 18 C/FA/4167/2009 CAV JUDGMENT contention raised by the appellant herein from 1987 till filling of the suit in the year 1996 he could have earned Rs. 44,88,000.
4.8 It is submitted that with reference to para B it is submitted that deposition of Chief Officer of Chandkheda Nagarpalika is just and proper it is pertinent to note that till year 1999 proceedings under ULC Act were pending which cannot be denied by the appellant. As the deposition of Chief Officer is with regard to permission only. Other contention raised in the para are denied into.
4.9 It is submitted that with reference to para D it is submitted that facts of the case reported in cased of 1991 4 SCC 54 is not applicable to the facts of this case. It is with reference to para 2, 3 and 4 it is submitted that till year 1999 proceedings by original land owner and it is admitted position that the petitioner came into the possession of land in the year 1982-83 through power of attorney in the year 1991 land was purchased by registered sale deed.
5. Heard Party-in-Person and learned AGP for the respondents. At the outset, the Court deprecates the practice of producing on record newspaper cutting purportedly expressing opinion of the Hon'ble Judges of Page 10 of 18 C/FA/4167/2009 CAV JUDGMENT the Supreme Court, more particularly for the purpose of imputing against the trial Judge. In absence of anything on record before the trial Judge, when no such objections were raised before the trial Court, after due completion of the trial, casting aspersions and that too without any basis in a civil case of this nature, is completely unwarranted. However, though previously the appellant was represented by an Advocate, but now the party has chosen to represent his case in person, the Court is refraining from entering deeper into this issue and giving benefit of doubt to the appellant-Party-in-Person only because earlier, the appellant was represented by an Advocate.
6. The facts which are emerging on record are that the dispute is pertaining to originally an agricultural land admeasuring 1113 sq. mtr., bearing survey No.516/1 of village Chandkheda, Dist. Gandhinagar, which belonged to one late Gangaram Jenabhai and his family members, who were original owners of survey No.516/1 and other adjacent lands. This land was purchased by the appellant by making payment of consideration of Rs.50,578/- to the original owner from 22.09.1980 to 17.01.1983 and took possession of the land on 17.01.1983.
7. The first application for converting the land from agriculture to non-agriculture was not considered Page 11 of 18 C/FA/4167/2009 CAV JUDGMENT favourably by the Additional District Development Officer (officer of defendant No.5-District Panchayat) on the ground that portion of the land survey No.516/1 is adjacent to national highway and hence, no construction permission can be given on the portion of land adjacent to the national highway. It appears that thereafter, the appellant restricted his sale deed to 733 sq. mtr. of land deducting 380 sq. mtr. of land which was adjacent to the national highway and produced the sale deed for necessary mutation in revenue record before Chandkheda Panchayat-defendant No.6. The process of mutation was undertaken by the Talati of the defendant No.6 by issuing notice under Section 135D of the Bombay Land Revenue Code and after passing through various stages, the entries were mutated for 733 sq. mtr. in survey No.516/1. Such entries were mutated in the year 1985.
8. In a suit for damages and compensation, the case of the plaintiff has to stand on its own, on the basis of pleadings and the evidence established on record. The plaintiff cannot succeed on the weakness of the defendants or inability of the defendants to reply to the pleadings or failure on the part of the defendants to prove their case contrary to the claim of the plaintiff. With this principle, the Court would proceed to examine the documents on record.
Page 12 of 18 C/FA/4167/2009 CAV JUDGMENT
9. The Power of Attorney Exh.136 is dated 24.04.1989, which is on Rs.65 stamp paper and refers to survey No.516/1 of village Chandkheda, admeasuring 1113 sq. mtr., for which Power of Attorney is given to the plaintiff. Exh.137 is the sale deed dated 23.10.1991, which pertains to the aforesaid land executed in favour of the plaintiff and his minor son. The document is executed for a consideration of Rs.50,846.86. Exh.41 is an order dated 22.11.1989 passed by the Competent Authority and Additional Collector of Urban Land Ceiling, Ahmedabad. This order is pertaining to survey No.516/1, wherein, the original owners-Shivabhai, Pashabhai and Gangaram had filed an application under Section 26 of the ULC Act seeking permission for sale, which came to be rejected. It appears that Exh.42 is the communication to the original owners regarding conditional permission to sale the land and such condition prescribes minimum amount of consideration for the sale deed and pertains to survey No.516/1.
10. It appears that the application for converting the land to non-agriculture use and for the purpose of putting up restaurant was made in the name of the original owner and under order dated 25.04.1990, objections to the application for converting to non- agriculture use were communicated. Thereafter, by order Page 13 of 18 C/FA/4167/2009 CAV JUDGMENT dated 18.07.1991 (Exh.19) by the Executive Committee of the District Panchayat, conditional permission for non- agriculture activity was granted for survey No.516/1. One of the important conditions at clause-8 was to commence construction activity as per the sanctioned plan within a period of 6 months and to conclude within a period of 7 months. The non-agriculture permission was also running in the name of original owner. It appears that on the strength of the Power of Attorney and such non-agriculture permission, plan for building and construction for restaurant was submitted which was approved on 03.02.1990. Therefore, the aforementioned documents indicate that there were no impediments for the appellant to put up the construction on survey No.516/1. However, no such construction was put up by the appellant, as a result of which, there was breach of condition of grant of non-agriculture permission, which would amount to cancellation of such non-agriculture permission. This was provided in the order of non- agriculture permission itself (Exh.19, page No.167 of the R&P). The authorities were therefore justified in not permitting mutation as the appellant or the original owner were in breach of the non-agriculture permission. The consequential action on the part of the authorities cannot be considered as a malafide action. In fact, the appellant has failed in his pleadings as well as on Page 14 of 18 C/FA/4167/2009 CAV JUDGMENT evidence to establish a valid reason for not proceeding ahead with the construction of restaurant permitted as appearing on record. Therefore, the appellant has not been able to prove on record that the inability to carry out construction by the appellant was in any way attributable to the malafide actions of the defendant authorities.
11. The evidence reflects that all the permissions and sanctions were running in the name of the original land owners. The appellant has failed to examine any of the original owners in whose favour permission and sanctioned plan were approved to substantiate his claim. There is no evidence on record to establish the expenditure incurred by the appellant for the purpose of hiring a lawyer to get NA-NOC and conduct his appeal before the ULC authority. The documents on record indicate that the NA-NOC permission as well as appeal before the ULC authority was running in the name of the original owners. Whether such proceedings were persuaded by the appellant himself or the original owners is not clearly established on record in absence of the evidence of the original owner and therefore, such contention merely continued to be an averment of the appellant without sufficient proof.
12. Mark-133/1 is a sale deed of survey No.516/1 Page 15 of 18 C/FA/4167/2009 CAV JUDGMENT (land in question) executed by the appellant and his son in favour of Anmol Cooperative Housing Society Ltd. for a consideration of Rs.3,15,360/- for 733 sq. mtr. out of 1113 sq. mtr. of land of survey No.516/1 of Chandkheda. The comparison of price at which the appellant had purchased in the year 1991 and document of sale by the appellant to one Anmol Cooperative Housing Society Ltd. in the year 1996 clearly indicates that the appellant has sold this land and has earned profit. Therefore, the appellant has not incurred any loss. Over and above this, documents at page Nos.1637, 1639 and 1641 are the documents to indicate that son of the appellant is allotted flat No.G-1 on the first floor of same Anmol Cooperative Housing Society Ltd. in whose favour the sale deed is executed by the appellant.
13. In view of the aforesaid discussion, this Court is of the view that the appellant has failed to establish by cogent evidence on record the loss or damage caused to him on account of the inaction, negligence or malafide intention on the part of the officers of the respondent authorities. In absence of any specific averments, let alone the evidence about deliberate inaction, non- cooperation or corrupt practice against particular officer of the respondent authorities, omnibus averments of general nature cannot be accepted as proof and base a Page 16 of 18 C/FA/4167/2009 CAV JUDGMENT claim of compensation or damage on it.
14. Over and above this, the quantification arrived at by the appellant is also more of figment of imagination. This Court cannot support the contention of the appellant about the claim of the appellant of Rs.21 lakhs on the ground that because of delay in procedures by the respondent authorities, the construction price prevailing in the year 1989 when the appellant intended to start the project and in the year 1996 had gone up. This figure is imaginary, more particularly when admittedly, no construction of the restaurant had ever commenced or taken place. There is nothing on record to prove that the appellant has indeed incurred expenditure of construction of restaurant on the suit land. Such imaginary claim cannot be allowed in a Court of law.
15. Similarly, the Court also cannot uphold the claim of the appellant of loss of income as the appellant was not able to start the restaurant in time. The figure of Rs.44,80,000/- averred in the plaint is totally unsubstantiated. Except for the deposition by the plaintiff himself, no other evidence is produced on record for the Court to conclude that had business of restaurant started in the area were the restaurant was planned by the appellant, the appellant would have earned an amount of Rs.40,000/- per month.
Page 17 of 18 C/FA/4167/2009 CAV JUDGMENT
16. With the aforementioned findings, independent of the findings recorded by the Civil Court in the impugned judgment, this Court is not inclined to interfere with the impugned judgment and order dated 04.04.2009. The appeal is therefore dismissed.
17. In view of the order passed in the main appeal, Civil Application does not survive. Disposed of accordingly.
R & P be transmitted to the concerned trial Court.
Sd/-
(S.R.BRAHMBHATT, J.) Sd/-
(A.Y. KOGJE, J.) SHITOLE Page 18 of 18