Gujarat High Court
Chitralaya Co-Operative Housing ... vs Ahmedabad Municipal Corporation & 2 on 9 August, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/1279/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1279 of 2016
With
CIVIL APPLICATION NO. 2947 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1279 of 2016
With
CIVIL APPLICATION NO. 2948 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1279 of 2016
FOR APPROVAL AND SIGNATURE:
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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CHITRALAYA CO-OPERATIVE HOUSING SOCIETY LIMITED....Petitioner(s)
Versus
AHMEDABAD MUNICIPAL CORPORATION & 2....Respondent(s)
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Appearance:
MR. YATIN OZA, SR. ADVOCATE WITH MR JIT P PATEL, ADVOCATE for the
Petitioner(s) No. 1
MR PRASHANT DESAI, SR. ADVOCATE WITH MR SATYAM Y CHHAYA,
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HC-NIC Page 1 of 37 Created On Sun Aug 13 12:34:52 IST 2017
C/SCA/1279/2016 CAV JUDGMENT
ADVOCATE for the Respondent(s) No. 1
MR S.I.NANAVATI, SR. ADVOCATE WITH MRS VD NANAVATI, ADVOCATE
for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 09/08/2017
CAV JUDGMENT
1. With the consent of learned advocates appearing for the parties, this case is taken up for final hearing.
2. Rule. Learned advocate, Mr.Satyam Y.Chhaya, for respondent No.1-Ahmedabad Municipal Corporation waives service of rule and Mrs.V.D. Nanavati, learned counsel for respondent No.2 and 3 waives service of rule.
3. Through this petition under Article 226 of the Constitution of India, petitioner has challenged unauthorized construction by Respondent No.2 and encroaching of the approach road belonging to the petitioner-Society.
4. Petitioner is a registered cooperative housing society registered under the Gujarat Cooperative Societies Act, 1961. It is grievance of the petitioner that illegal and unauthorized construction of residential building is going on in full swing at the behest of respondent No.3 in plot belonging to respondent No.2 and in connivance with Page 2 of 37 HC-NIC Page 2 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT the Government and Semi Government officials of Ahmedabad Municipal Corporation (For short, 'AMC'). Petitioner- Society is a land locked society with entry and exit facilitated by an approach road. However, this approach road is being absorbed and encroached upon into the building as their margin area and development permission for construction of residential scheme has been granted in violation of building bye-laws and rules and regulations.
5. Brief facts leading to this petition as stated by the petitioner-Society are as under.
5.1 Petitioner-Society is in possession and owner of final plot No.605/A admeasuring 2578 Sq.Mtrs. and final plot No.605/C admeasuring 618 Sq.Mtrs situated mouje Kochrab in Ellisbridge Area, District: Ahmedabad. The said plots were purchased by the petitioner society and all the members of the petitioner-society reside peacefully in multi-storied tower since 1991. Respondent No.2 has divided the final plot No.605/C ad-measuring 1053 Sq.Mtrs. and 605/E ad-measuring 1923 Sq.Mtrs. and on the said plots, another residential cooperative society named as 'Tirthbhumi Co.Op.Soc.Ltd.' is constructed and its members are in occupation for the same. Some members of 'Tirthbhoomi Co.Op.Soc. Ltd.' also uses the same approach road which is being used by the petitioners. Respondent No.2 is the owner of the adjoining plots being Final Plot No.605/A ad-measuring 4621 Sq.Mtrs. and 605/B ad-measuring 2236 Sq.Mtrs. It is grievance of the petitioner that Page 3 of 37 HC-NIC Page 3 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT unauthorized construction of residential scheme is going on in full swing on the adjoining final plot No.605/A and 605/B under the name and style of "LE JARDIN". 5.2 Since 3.12.2009, the petitioner-Society had registered its grievance before the respondent-Corporation with regard to use of approach road and the rights to use the said road. However, respondent-Corporation in complete disregard of the objections and factual situation, have approved the building plans of Respondent No.2. The Chronological order of objection applications and letters to various authorities, have been annexed with the petition. It is further case of the petitioner-Society that it has no objection towards construction of residential premises if constructed in accordance with law and even earlier commercial complex of 10 storied was constructed on the said plot of the land. As the plans passed for this construction were against General Development and Control Regulations (For short, 'GDCR'), the said building named "RA TRADE CENTRE" was demolished by the respondent-Corporation itself without any indulgence or objection of the petitioner-Society. 5.3 The approach road, as per plan, is ad-measuring 9 Meters. However, as per petitioner, the said approach road is only 7.25 Meters wide. The petitioner will face grave difficulties and hardships if the said approach road is absorbed in margin of the respondent No.2's residential scheme as the petitioner-Society is land locked and its Page 4 of 37 HC-NIC Page 4 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT members can enter their society only via the approach road. The absorption of margin has obstructed free movement of members of the petitioner-Society and it will be equal to frustrating the development of petitioner- Society and narrow down the chances of redevelopment to nil as the petitioner fears that they would not be granted the permission for raising same height which has been granted to respondent No.2. It is further their case that when the Minutes of Understanding (For short, 'MOU') was signed, it was specifically agreed by the parties that the building plans whatsoever will be verified and no objection of the petitioner will be taken before undertaking any construction work. However, respondent- Corporation though drawn their attention towards the same, have chosen to ignore the said MOU for the reasons best known to them and approved the building plans and granted development permission to the respondents. 5.4 In the year 1990, from the common plot of the respondent No.2-Society, there was one approach road leading the petitioner-Society. In order to gain benefit of the higher FSI and due to the settlement arrived at between the parties and the same settlement was executed by way of MOU, the petitioner agreed to shift the approach road from its original position i.e. common plot of respondent No.2 to its western side. The approach road is being used by the petitioner's since 1991 and even after coming to know of this use, illegal and inappropriate building plans came to be passed by respondent No.1 Page 5 of 37 HC-NIC Page 5 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT without any verification or inspection by their officials. Finally, grievance of the petitioner pertains to encroachment on approach road which is their exclusive rights as per the MOU entered into on 21.10.1994. The respondent Nos. 2 and 3 had barely left the margins as required under the current GDCR and therefore, the approach road of the petitioner-Society is obstructed. While relying upon these submissions, the petitioner has sought directions of this Court to quash and set aside the development permission granted in favour of respondent Nos. 2 and 3 and further directions to respondent Nos. 1 to 3 to strictly act in accordance with law as per current GDCR and building bye-laws. It is also prayed by the petitioner to direct the respondents to remove the encroachment and demolish the illegal construction in the area and space reserved for margin space as per GDCR and further be pleased to direct respondent Nos.2 and 3 to keep appropriate and permitted the minimum margin space while constructing the residential building on the subject land and property.
6. After notice, respondent Nos. 2 and 3 have contested this petition by filing reply wherein, it has been stated that the dispute raised by the petitioner through this petition, is already pending before the City Civil Court, Ahnedabad in Execution Application No.1035 of 2015 filed by the petitioner. In the said proceedings, the petitioner has raised the similar issue which has been raised in this petition. In the said proceedings, petitioner has also Page 6 of 37 HC-NIC Page 6 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT prayed for an order of injunction against the respondent Nos. 2 and 3 and has sought stay of construction activities being undertaken by the answering respondent. Therefore, the present petition was an attempt made by the petitioner to circumvent the said proceedings of the Execution Application pending before the City Civil Court, Ahmedabad. The challenge to the development permission granted by respondent No.1 - AMC in favour of respondent No.2 is without any basis. Before issuing the development permission in favour of respondents, the AMC called upon the petitioner for hearing and in pursuant to such opportunity being given by the AMC, their written objections came to be rejected vide its order dated 4.3.2011. However, despite the said fact, the petitioner has filed the present petition in January, 2016 when the entire construction of four residential towers is complete. While giving background of previous litigations between the parties, they have prayed for dismissal of the petition.
7. Respondent No.1-AMC by way of separate reply has termed the petition as misrepresentation of the relevant clauses of GDCR. It has been contended that development permission was granted by the answering respondent within four corners of GDCR. All relevant provisions of GDCR including Chapter 13 more particularly clause 13.6 dealing with the margins, Clause 13.6.1 dealing with the roadside margin, Clause 13.6.7 dealing with the minimum margin on side and rear of the building unit, Clause 13.6.8 dealing Page 7 of 37 HC-NIC Page 7 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT with the minimum margin between buildings are duly considered while granting permission. Further, clause 13.3 dealing with the development of land, clause 13.3.1 (4) dealing with the width of the internal or approach road on the basis of the length and use of the building unit were also taken into consideration by the respondent- Corporation. On conjoint reading of clause 13.6.1, 13.6.7, 13.6.8 & 13.3.1 including note refer to after table in clause 13.3.1, it would reveal that the plan in question was considered in accordance with GDCR and on all side of the building unit, margin as well as internal road to the building are considered in tune with the provisions of GDCR. While considering the above referred clause, one will have to keep in mind that development permission in question is granted with respect to building having its height of 44.49 mtrs. Thus, in view of above referred aspects, it would become clear that plans are properly scrutinized and accordingly sanctioned in tune with the provisions of the GDCR. Just to clarify any doubt it is to be noted here that 9 mtrs. internal approach road situated on western side of the plot in question is considered, in view of the provisions contained in clause 13.3.1 (including note) read with the 13.6.8 (meaning thereby consider the height of the building, margin of 9 mtrs. is required as per the clause 13.6.8 instead of 7.5 mtrs. as evisage under table under clause 13.3.1 more particularly consider the note). It is to be noted here that length of the road is 70 mtrs and therefore, as per the clause 13.3.1 the width of the said road would come to 7.5. Page 8 of 37 HC-NIC Page 8 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT However, though 7.5 mtrr. approach road was required as per clause 13.3.1 read with 13.6.7, 9 mtrs. width is kept within building units. Thus, the contentions sought to be canvassed by the petitioner that no margin is left, within the boundary of the building unit after leaving 9 mtrs of the internal approach road is ill-founded, more particularly, in view of the provisions contained in GDCR. In further affidavit filed on behalf of respondent- Corporation, except sub plot 1-D the entire land was amalgamated ad-measuring 13029.94 sq.mtrs. and plans submitted by the concerned occupiers/owners were considered accordingly. When the petitioner got approved its plans initially in February, 1981, these were sanctioned considering amalgamated plot in view of plan of October, 1980 referred above. Thus, contention sought to be raised in rejoinder by the petitioner and contention which are canvassed before this Hon'ble Court were beyond the record. It is further pleaded by respondent No.1 that in the year 1989, revised plans were submitted by Chitralaya Co.Op. Housing Soc. which was also sanctioned and in this plan, no such 9 mtrs road is shown from the portion which is now forming part of the Swapanalok Housing Society. So, the road now claimed by the petitioner-Society was never in existence at the time of sanctioning of their plan. While relying on these submissions, the Corporation has prayed for dismissal of the petition.
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8. Mr.Oza, learned senior counsel for the petitioner has submitted that construction raised by the respondent Nos. 2 and 3 was illegal, irregular and without reserving proper margin which obstructs and restricts free movement of the members of the petitioner-Society from the said approach road. It has been argued that respondent- Corporation even after numerous representations and requests, failed to protect the rights of the petitioner- Society. The Corporation failed to take any action and as a result, the petitioner has to approach this Court by way of this petition. While referring to written statement of the respondents, he has contended that pendency of execution application before City Civil Court, Ahmedabad has nothing to do with the present petition which has been preferred in view of the construction activities being carried out by respondent Nos. 2 and 3 which is in utter violation of the provisions of GDCR. According to him, the present petition has been filed seeking restrictions against the respondents from raising any construction activities in violation of provisions of GDCR and further restraining the respondents from encroaching upon the only approach road which leads to petitioner's-Society. According to him, absorption of margin area of respondent No.2-Society by misrepresenting the factual scenario and on basis of false declaration, the entire construction is required to be demolished.
9. While referring to order dated 4.3.2011 passed by Page 10 of 37 HC-NIC Page 10 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT Commissioner of AMC, it has been argued that the said order was not challenged by the petitioner-Society as petitioner had no objection if the construction was carried out as per GDCR after reserving 9 Mtrs. wide approach road. However, the petitioner has to approach this Court as respondent Nos. 2 and 3 have not left the margins as per GDCR from the plot boundary excluding the existing approach road already partitioned by walls instead of including the land / plot area of the approach road. He has made reference to the photographs placed on record and has contended that great nuisance has been caused for the members of the petitioner-Society as drainage and sewage water consistently flows from the site on the approach road. He has further referred to the additional affidavit dated 18th February, 2016 and has submitted that the sewage water and the drainage water flowing from the pipeline of the residential towers of respondent Nos.2 to 4 are causing nuisance for the petitioner-Society. Similarly, residents of "Tirthbhoomi Society" are parking their vehicles in the said passage making it difficult for the petitioner's to use the same for access to their residential premises. According to learned counsel, once residents of the respondent No.2 to 4 Society start living in the respective dwelling units, they are likely to cause nuisance as guests and visitors will start parking their vehicles on the said approach road. It is further apprehension of learned counsel that the whole wall dividing approach road and the construction site has been demolished by respondent Nos. 2 to 4 Page 11 of 37 HC-NIC Page 11 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT arbitrary revised building plan has been approved by the respondent-Corporation.
10. Mr.Oza, learned senior counsel has further argued that there were irregularities in the plan submitted by "Tirthbhoomi Society" which was also floated by respondent No.2 in the year 2005, without there being an approach road. The said society could not have been regularized, however, after the entry was described from the said approach road, higher FSI was granted and construction and plans of the "Tirthbhoomi Society" were regularized after payment of necessary penalty/fine. Therefore also, the lay out plan and amalgamations / sub divisions were described by the respondent-Corporation in light of the fact that on many occasions, the final plot No.605 was sub-divided after the year 1990. He has further pointed out that after verification of lay out plans, the Corporation has paved the present approach road and it has been recognized as private street. The funds for execution of private street / approach road were borne by the petitioner and respondent-Corporation in the ratio of 20:80 as per scheme of the State Government. That while revising the building plans, latest lay out plan and sub division plans are required to be submitted and development permission on the old lay out plans cannot be permitted and if permission has been granted in lieu of the lay out plan prior to the year 1990, the same is required to be quashed and set aside.
11. Senior Counsel, Mr.Oza, has further argued that vide Page 12 of 37 HC-NIC Page 12 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT application dated 22.3.2016 the petitioner - Society has applied for the records of concerned final plot being Final Plot No.605. However, the same were not been provided to them well in time.
12. After conclusion of arguments on 20.7.2017, Mr.oza, learned senior counsel has further placed on record written submissions wherein, it has been contended that respondent No.2 applied for regularization and passing of commercial building plan on 11.12.2003 wherein, the facts with regard to sub-division of the final plot stands accepted and admitted. He has further submitted that in absence of sub division and the 9 mtr. wide approach road, being a part of sub-division, the regularization of "Trirthbhoomi Society" was not accepted. The application for commercial plan at page No.240 and relevant admission with regard to sub division at page No.248 of the Court file, makes it clear that final Plot No.605 has been sub divided. However, the development permission has been granted on the basis of amalgamated lay out plan which existed in the year 1980 and various subsequent sub- division of final plot has not been considered while granting as well as revising impugned development permission under Section 34 of the Town Planning Act as well as GDCR.
13. The arguments raised by the senior counsel Mr.Oza has been replied by Mr.S.I.Nanavati, learned senior counsel for the respondent Nos.2 and 3. While referring to the Page 13 of 37 HC-NIC Page 13 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT Civil Suit being Civil Suit No.1545 of 1990, it has been contended that this Civil Suit resulted into compromise and a consent decree was passed wherein, both sides agreed that a passage of 25 Ft. wide (Approximately 7.5 meters) will be provided on the extreme western side of the plot owned by respondent No.2-Society from its' plot which was in lieu of the earlier passage being used by the petitioner-Society from the plot purchased by the respondent No.2 as the earlier passage divided the plot of respondent No.2- Society into two parts. It was also agreed that the compound wall will be constructed along the side of the road. Other issues, in dispute, are also settled between the parties. Copy of consent decree has been annexed with the petition. Learned senior counsel Mr.Nanavati further referred to Civil Suit No.5082 of 1993 and has contended that in the said suit, an Appeal came to be preferred in the High Court. In the said proceedings, both parties executed MOU, based on which, the appeal was disposed off. According to him, said MOU dated 21.10.1994 has been further upheld by the High Court in the subsequent proceedings taken place in Civil Revision Application No.282 of 2015 wherein, learned Single Judge of the High Court has concluded that MOU dated 21.10.1994 is treated to be a final agreement between the parties. The High Court directed the Trial Court to draw a decree in terms thereof.
14. Mr.Nanavati, learned senior counsel has also referred Page 14 of 37 HC-NIC Page 14 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT to the objections raised by the petitioner-Society regarding the development permission applied by the respondent No.2-Society. He has drawn attention of this Court to the decision of the Competent Authority vide its order dated 4.3.2011 which has been annexed with, by the petitioner as Annexure-F to the petition. Mr.Nanavati has contended that the plan in question has been sanctioned in the month of October, 2014. However, the same was revised on 11.1.2016. The construction, at the site, commenced in the year 2014, which was completed somewhere in the year 2016. The revision in the site plan has nothing to do as far as passage in dispute was concerned. The respondents were required to be heard at the time of revising of plan, if there was any change in the width of the passage as per MOU. He has further argued that the issue of keeping northern side open for the swimming pool and Jain Derasar is subject matter of pending Execution Application and petitioner cannot raise such grievance in the petition pending before this Court. Finally, Mr.Nanavati, has concluded his arguments by submitting that, the points raised in the present petition are actually and factually disputed questions of facts which cannot be gone into while deciding the present writ petition especially, under the circumstances, when civil Court has passed decree in favour of the parties which has been further approved by the High Court.
15. Mr.Desai learned senior counsel appearing for respondent No.1-AMC in his brief and forceful arguments Page 15 of 37 HC-NIC Page 15 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT has referred to various provisions of GDCR and has contended that arguments of division of sub plots are not true and correct as same are against the record. According to him, except sub plot 1/D the entire land was amalgamated, ad-measuring 13029.94 sq.mtr. and plans submitted by concerned occupiers/owners considered accordingly. He has argued that when the petitioner got approved his building plan initially in February, 1981 they submitted their plans sanctioned considering amalgamated plot in view of plan of October, 1980. Thus, the contentions sought to be raised in rejoinder by the petitioner and contention which have been canvassed before this Court while oral arguments were beyond any proof. He has further given details of plots owned and occupied by each of the societies while referring to the plan sanctioned in February, 1981 of the petitioner- Chitralaya Society. He has contended that in the amalgamated plot, there was no provision for 9 Mtrs. road as contended by the petitioner. In the year 1989, revised plans were submitted by Chitrarlaya Co.Op. Housing Soc. which were also sanctioned even in that revised plans there was no such 9 Mtr. road which is now forming part of Swapnalok Housing Soc. Thus, according to learned counsel, the 9 Mtrs. passage as canvassed by counsel for the petitioner was not in existence at the time of sanctioning of the plans.
16. While replying to the allegations raised by the petitioner regarding grant of permission, it has been Page 16 of 37 HC-NIC Page 16 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT contended that development permission has been granted by Corporation as per provision of GDCR. The plan submitted by respondent No.2 was duly considered by the Corporation. According to him, as per sanctioned GDCR 2021, Chapter 13 more particularly, clause 13.6 dealing with margins, clause 13.6.1 dealing with the roadside margins, and clause 13.6.7 dealing with the minimum margins between buildings were kept in mind. As per senior counsel, Mr.Desai, all these provisions have been taken into consideration while sanctioning the plan and as the decision of the Corporation and written as well as oral objections raised by the petitioner, has been dealt with in the year 2011, the present petition in 2016 is nothing but abuse of the process of the Court.
17. This Court has considered the submissions raised by all the sides and have gone through the documents placed on record and produced even after conclusion of arguments. However, the same will be dealt with herein after.
18. This case has a checkered history. Before going to the arguments of respective learned counsels, the background of the previous litigations is required to be highlighted.
(I) Dispute in the petition pertains to the original plot situated at mouje: Kochrab in Ellisbridge area of District and Sub-District: Ahmedabad. Out of the said plot, an area of 3186 Sq.Mtrs. (approx) came to be possessed by the petitioner- Chitralaya Co.Op. Housing Page 17 of 37 HC-NIC Page 17 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT Soc. Ltd. wherein, a multi-storied residential complex in the name of "Swapnalok Apartments" was constructed. Whereas, an area ad-measuring 6717 Sq.Mtrs. owned and occupied by the respondent No.2- Society - Swapnalok Co.Op. Housing Society Ltd. wherein, at present construction of a residential scheme in the name of "Le Jardin" consisting of 4 towers of 14 storied each is complete. Remaining area in the society in the name of "Tribhoomi Co.Op. Housing Society Ltd." is situated wherein, a high rise residential Society / Apartments is constructed. Whereas, a small area on the south-west side is presently owned by Chinoy family who are having their Bungalow on the said plot. At the relevant time, the residents of the Petitioner-Society were using a passage from the land belonging to the Respondent No.2 herein to have access to their society since it was a vacant plot. A copy of explanatory sketch prepared by the Respondent No.2 to show the approximate position of the aforesaid plot which is available at page No.148 with the petition.
(II) Therefore, the respondent No.2 -Society entered into a development agreement with M/s. Radhe Developers who proposed to construct a commercial complex in the plot owned by the Society. At the relevant time, some members of the petitioner-Society filed a suit being Civil Suit No.1545 of 1990 against their own society (petitioner herein), as also the Page 18 of 37 HC-NIC Page 18 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT respondent No.2 herein for protection of their easement right over the approach road / passage from land belonging to respondent No.2-Society. In the said suit, a consent decree came to be passed, wherein, it was agreed between the parties that Respondent No.2 Society will give an alternative passage road for the use of the members of the petitioner society as also the members of respondent No.2-Society on the western side of the plot owned by the respondent No.2, which will be 25 feet wide (Approximately 7.5 meters) in lieu of suit passage. It was agreed that a compound wall will be constructed along the side of the road. Other issues in dispute were also settled between the parties. Copy of consent decree dated 30.4.1993 is there on the file as Annexure-R-2.
(III) The consent terms under the consent decree passed in Civil Suit No.1545 of 1990 were not being complied by respondent No.2-Society and the developer, the petitioner of the previous case filed another Civil Suit No.5082 of 1993.
(IV) Thereafter, respondent No.3 got permission from AMC for use of the plot for the purpose of constructing residential apartments.
(V) Initially, in the said suit, (Civil Suit No.5082 of 1993), an injunction application was Page 19 of 37 HC-NIC Page 19 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT rejected by the City Civil Court, Ahmedabad after bi- parte hearing, against which in the year 1994, the petitioner preferred an Appeal from Order before the Hon'ble High Court. In proceedings before the High Court, the parties executed MOU, based on which the Appeal was disposed off by the High Court. A copy of said MOU dated 21.10.1994 has been annexed with the petition as Annexure-D. (VI) As said earlier, respondents got permission from AMC for use of the plot for the purpose of constructing apartments and thereafter, a building was constructed. However, it seems that in place of residential building, a commercial complex was constructed by the respondents. However, this construction came to be demolished by AMC and, respondent No.2-Society ultimately executed another development agreement with M/s. Grant Infrastructure Pvt. Ltd. The said company was acquired by respondent No.3 - Company and accordingly the development rights came to be transferred in favour of respondent No.3. (VII) In the proceedings pending before Civil Court, the petitioner herien filed another injunction application vide Exh.46 in the year 1994-1995 seeking restrain order against respondent No.2 from carrying out construction in breach of MOU. No orders could be passed in the said application for long time. Thereafter, the petitioner again moved another Page 20 of 37 HC-NIC Page 20 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT application at Exh.90 in the year 1994-95 seeking injunction against the respondent Nos. 2 and 3 for carrying out construction and at that time, an application Exh.117 was filed praying for passing a decree in the suit on the basis of MOU.
(VIII) The said application came to be rejected by the City Civil Court, Ahmedabad vide its order dated 4.5.2015. Such order disposed of several miscellaneous proceedings filed during pendency of the Civil Suit No.5082 of 1993. The said order, thereafter, was challenged by the petitioners before this Court in Civil Revision Application NO.282 of 2015. Vide order dated 3.7.2015, passed in the said proceedings, this Court directed the City Civil Court, Ahmedabad to pass a decree in suit on terms of MOU as it stood modified with the order passed by the High Court in above referred Civil Revision Application. Relevant portion of the order passed in Civil Revision Application No.282 of 2015 is reproduced herein under.
"-----5. Having perused the entire MOU with the assistance of the learned Advocates for both sides and with a special focus on the said Clause-2(7), I do not see any manifestation of the intention of the parties to permit to the members of the plaintiff society use of the proposed swimming pool or the temple at the site and any contrary stand on behalf of the plaintiff is not borne out from the MOU. When no such intention is recorded in writing, no such right can be asserted. This, of course, would not mean that the defendants or any of Page 21 of 37 HC-NIC Page 21 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT their transferees of rights would be precluded from considering permissive user of any of the facilities.
6. Subject to above clarification, having perused the documents on record, in view of the stand presented before me by the Counsel for the parties, the MOU dated 21.10.1994 is treated to be a final arrangement between the parties. The trial Court shall draw decree in terms thereof. For such purpose, the said order dated 04.05.2015, insofar as it pertains to the plaintiff's application Exh.117, is set aside. Proceedings are placed back before the trial Court for drawing decree in terms of MOU dated 21.10.1994, expeditiously and preferably before 31.08.2015.
At this stage my attention was drawn by the counsel for the parties to clauses 2(10) and 2(14) of the MOU which reads as under:-
"2. (10) The First party will complete the aforesaid work as early as possible before Diwali of 1994.
2. 11 to 13 xxxxx
3. (14) All work to be done by First party for the Second party should be performed as per the time specified in para 10, failing which this agreement stand null and void."
It is clarified that: "now that the MOU is being made part of the decree of the Court, the time limit envisaged therein for completion of various tasks would not apply. However, those bilateral obligations which have already been discharged, would not have to be redone by either side". In addition to the terms of the said MOU, above portion within the inverted coma, shall be incorporated in the decree. Page 22 of 37 HC-NIC Page 22 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT Revision Petition disposed of accordingly".
19. It could be seen that the High Court has disposed of this matter on 3.7.2015. However, petitioner preferred the present petition on 22.1.2016. Now, this Court is required to decide this matter keeping in view the aforementioned history of previous litigations between the parties.
20. It seems from the tenure of the petition that main grievance of the petitioner is regarding approach road and margin area of the building unit. According to the petitioner, the plans submitted by respondent No.2 have been passed in such a way that no proper margin space is left open towards the compound wall of the petitioner- Society. It is their grievance that as per plan passed, only 6 Mter. margin is provided toward the compound wall whereas as per space index the margin space was required to be 9 mtrs. Further, the petitioner-Society and respondent No.2 are co-owners of the plot being final plot No.605/A and therefore, in light of the regulation being Regulation No.4.6.4 of final GDCR, the petitioner society being co-owner of final plot was required to be heard before revising and approving the building plans. Petitioner has also apprehended threat to their peaceful use of the passage as at present the dwelling unit constructed by respondent No.2 society were vacant. Once, residents started living in dwelling units, they are likely to park their vehicles in the passage left for the petitioner society and further, the water and sewage Page 23 of 37 HC-NIC Page 23 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT coming out from the society will be discharged and allowed to flow in the passage in question. Further, the petitioners have mentioned about hazardous difficulty as many a times the construction material, such as, iron, walls, bricks, and tiles had fallen on the approach road and the entire construction was being carried out in the life threatening manners.
21. On the other hand these contentions has been opposed by learned senior counsel Mr.Nanavati while referring the earlier decision passed in civil suit pending between the same parties and the MOU having been drawn between the parties in pursuance to the order passed by Coordinate Bench of this Court while disposing of Civil Revision Application No.282 of 2015 on 3.7.2015.
22. As pointed out in the initial paragraphs, earlier civil litigation between the parties goes to the root of the matter as in this litigation, parties have compromised regarding the width, positioning and location of the passage which was required to be kept while raising construction.
23. MOU was signed between the parties and upheld by Coordinate Bench of this Court. Terms of MOU dealing with the controversy in question, is required to be reproduced.
"(1).The parties hereto has dispute and Page 24 of 37 HC-NIC Page 24 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT
differences for which both the parties have decided to settle the issue by way of this minutes of understanding.
(2). It is further agreed by and between the parties that both the parties will arrange to pass a Resolution in their respective societies that the disputes between the parties hereto are settled on the following terms and conditions which are agreeable to both the parties.
(1) The First Party will reconstruct the compound wall which has been fall down and provide lights every twenty feet on all four sides of compound walls of building.
(2) The First Party has to replace the paving stones which are broken in the compound and repair balance which has gone down the level. (3) The First Party will construct a small room for watchman ear the gate and provide with 25' wicket iron gate between compound wall. (4) The First Party will prepare a shed made of iron pipes or angles and sheets of good quality GI sheets for a parking place for 42 cars only as per plan approved by Second party, and will oil paint the same.
(5) The First Party will replace all drainage and rain water pipes with PVC pipes on all sides of the outer side of the building only. (6) The First Party will carry out colouring outside of the buildings with foyer and ground pillars of the second party and parking place also.
(7) The First Party will remove objectionable pillars constructed on the North east side of the building of second party and shall keep the said side open for Derasar and Swimming Pool as per annexure and remove temporary toilets in the said area with immediate effect.
Page 25 of 37 HC-NIC Page 25 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT (8) Utilization of FSI by Second Party for its own premises will be in accordance with its boundary line marked as Red in Annexure. First Party will have no right on the said FSI and land belonging to the second party for any purposes. Excess FSI as and when granted, to second party will be utilised solely by the second party.
(9) The First Party will not construct balcony in future even though the Municipal Corporation grants extension of the balcony towards 10 Ft. road on the side of the compound which is the margin road of the second party as indicated in annexure.
(10) The First Party will complete the aforesaid work as early as possible before Diwali of 1994.
(11) The Second Party hereby agrees and confirm to sign, to make affidavit or to make an arrangement for obtaining necessary signature and seal of the office bearers on the documetns and plans or papers submitted by the First Party so long as the plans conform to the map marked Annexure ONE as and when it is necessary and pass resolution etc. for the said purpose for obtaining building permission by the First Party or estate developers contractor namely Radhe after appropriate legal verification. (12) The second party hereby agrees and confirms on behalf of their members that the second party shall not take any legal action or objection for constructing the residence and the commercial buildings by the First party as per the map marked Annexure-ONE and the Second party, its office bearers of the members of the Second party shall not take legal action and/or shall not file any suit or proceedings in any court or before any authority and in case, such Page 26 of 37 HC-NIC Page 26 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT court proceedings have been commenced, either by individual or member or office bearers of Secretary, in that case, the second party shall have to remove or withdraw the same at its own cost. In consideration to this, the Fist Pay shall pay Rs.5,51,000/- to the second party upon execution of this document.
(13) The parties hereto agree that the First Party has paid Rs.5,00,000/- to the second party as and by way of amicable settlement for the road and the Easement of the said road shall be of both the parties. The Road will be 25' wide and will be paved out with tar carpet and provide sufficient light on road with compound wall on both side of the road as per old decree of Court. Both the parties have right of way, water, drainage, telephone, electricity lines and all easement rights as were in force prior to relocation of the road. No car scooter or any vehicle parking wil be allowed by first or second party on the said road.
(14) All work to be done by First Party for the Second party should be performed as per the time specified in para 10 failing which this agreement stand null and void".
24. Perusal of the aforementioned MOU leaves no doubt that an undertaking has been given on behalf of members of petitioner-Society that they shall not take any legal action or objection during construction of residential and the commercial buildings by the First party. Office bearers and members of the Second party shall not file any suit or proceedings in any court or before any Page 27 of 37 HC-NIC Page 27 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT authority in case, such court proceedings have been commenced, either by individual or member or office bearers or Secretary, in that case, the second party shall have to remove or withdraw the same at its own cost. It is also provided in MOU that the first party will pay Rs.5,00,000/- to the Second party as amicable settlement for the road and said road shall be used exclusively by both the parties. The Road will be 25' feet wide and will be paved out with tar carpet and provide sufficient lights on road with compound wall on both side of the road as per old decree of Court. Both the parties will have right of way, water, drainage, telephone, electricity lines and all easement rights as were in force prior to relocation of the road. No car, scooter or any vehicle will be parked by first or second party on the said road.
25. This Court is of the considered opinion that once such MOU has been acted upon between the parties and Civil Court has passed a decree in this regard, these proceedings cannot be re-agitated by way of petition under Article 226 of the Constitution of India. This is particularly so, when decree based on MOU has attained finality and MOU has been approved by this High Court in the previous proceedings. As per terms of MOU, the respondent No.2-Society was required to leave 25 feet passage for entry and exist of the members of the petitioner-society, which has been complied with by the respondents.
Page 28 of 37 HC-NIC Page 28 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT
26. Learned senior counsel for the petitioner while arguing regarding violation of GDCR has pointed out that some of the provisions have been violated as the side margin on the passage is not as per GDCR. The contentions raised by learned counsel cannot be allowed to be stretched any further in view of the fact that the respondents were required to leave 25 feet passage from their plot which they have complied. The grievance, if any, could be by the Corporation and Corporation has not only approved the site plans but has also supported case of respondent No.2 as far as leaving of margins and other open space around the construction are concerned.
27. It could be seen that earlier respondent-society submitted the sanctioned plans regarding commercial unit in the plot in question. The construction was carried out, however, the same seems to have been demolished as in place of residential, a commercial building has come up. Thereafter, respondent No.2 has resubmitted the plans somewhere in the year 2006-2008. The objections have been invited. The petitioner-Society submitted their objections orally as well as in writing. They have been heard and finally, objections have been disposed off vide order dated 4.3.2011 passed by the Commissioner of Municipal Corporation. This fact has been admitted by the petitioner in their pleadings and during course of arguments. 28 Another point raised by counsel for the petitioner was regarding resubmissions of plans somewhere in January, Page 29 of 37 HC-NIC Page 29 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT 2016. I have gone through such re-submissions. These re- submissions have nothing to do with the construction concerning the petitioner-society or the passage left for them. General allegations regarding approval of plans in connivance with official of respondent-Corporation cannot be accepted and required to be discouraged.
29. It is still a disputed question, whether the passage left out by the respondent No.2-Society from its own plot can be termed as public street. Road / public street has been defined in clause 2.145 of the GDCR which reads as under:
"Means any highway, street, service road lane, pathway, alley, stairway, passageway, carriageway, footway, square place or bridge, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and had access uninterruptedly for a specified period, whether existing or proposed in any scheme, and includes all bunds channels, ditches, storm-water drains, culverts, sidewalks, traffic islands, road-side trees and, hedges retaining walls, fences, barriers and rallings within the street lines".
30. Close perusal of the aforementioned definition leaves no doubt that road / street is a public road on which public has a right of passage or access. This Court has gone through the decree passed by the City Civil Court in Page 30 of 37 HC-NIC Page 30 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT the year 1990. Perusal of term of this decree would mean that the street in question was meant for use of the petitioner as well as the respondent No.2-Society only. Further, as per terms of the compromise, nobody else except members of these two societies could park their vehicles in the street. Once, this street has been kept for exclusive use of residents of the society, the same cannot be termed as public street. The same meaning and understanding has been given in the MOU reached between the parties.
31. Another aspect which creates doubt regarding the public street is that earlier petitioner-society was using the passage for approaching the main road which passed from the plot owned by respondent No.2. Later on, in Civil Suit No.1545 of 1990, a compromise was reached between the parties and location of the passage was shifted to the side of the plot of respondent No.2-Society. Not only, the position of the passage has been shifted but the petitioner-society has also taken Rs.5,00,000/- from the respondent-Society. Had it been a public road, such shifting was not possible unless it was approved by the Corporation. Still further,the petitioner-Society could not have claimed Rs.5,00,000/- as compensation for such shifting and reducing the width of the passage from 12 mtrs. to 9 mtrs. This transaction leaves no doubt that the street in question was not a public street. Once this Court has reached to conclusion that street is not a public street, the arguments of learned senior counsel Page 31 of 37 HC-NIC Page 31 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT Mr.Oza regarding margins having been left along the side of the road are meaningless. Objection, if any, can be raised by the Corporation and not by members of petitioner-Society.
32. Mr.Oza, learned senior counsel has also raised point regarding sub division of the plot and sanctioning of the site plans by the respondent-Corporation. In his submissions, Mr.Oza wanted to suggest that entry No.6554 dated 27.10.2010 was a sub division of a plot. This contention has been opposed by respondents by written submissions wherein it has been submitted that respondent (Swapna Lok Co.Op. Housing Soc.) had purchased 9834 sq.mtr. from Chinoy family which sale deed has been produced in the Court. Thereafter, out of total holding, 9834 sq.mtr. belonging to Swapna Lok Co.Op. Housing Soc., two societies have formed, namely, Tirthbhoomi Society and and Swapna Lok Co. Op. Housing having land ad-measuring 3117 sq.Mtrs. and 6717 sq.Mtrs. respectively. The said sub division of the societies has been approved by the Registrar of Co.Op. Societies. The said residential complex has been constructed on said 6717 sq.mtrs. of land. Further the arguments of learned senior counsel for the petitioner regarding illegal approval of site plans of "Tirthbhoomi Society" are of no use as far as present petition is concerned. The said society is stated to have been constructed somewhere in the year 2005. As in this petition, we are dealing with the Swapna Lok Co.op. housing society (Respondent No.2-Society) which has come Page 32 of 37 HC-NIC Page 32 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT up in the year 2016 it has nothing to do with Society which is already in existence. This Court is of the considered opinion that apart from easement right, the petitioner has no locus to challenge any development permission which has been granted to respondent No.2- Society in terms of Civil Court decree which has been drawn.
33. Mr.Oza, learned senior counsel has also put reliance on one of the decision by this High Court. He has referred to decision passed in Letters Patent Appeal No.1220 of 2006 and allied matters decided on 13.8.2008 between Snehanjali Co.Op. Housing Soc. Ltd. V/s. State of Gujarat and 10 others. The matter of dispute in this case was regarding construction made by Snehanjali Co.Op. Housing Soc. Ltd. over the land ad-measuring 4645 of final plot No.65 of the Town Planning Scheme. In this case, Snehanjali Co.Op. Housing Society has raised construction over a plot which was owned by the petitioner-Nidhi Society. The construction was illegal and without sanctioning of the plan by the Competent Authority. In this background of the matter, learned Single Judge passed an order directing the Authority under the Town Planning Act to implement the Town Planning Scheme and Snehanjali Co.Op. Housing Soc. was directed to handover the peaceful and vacant possession of the land to its owners. This decision was further upheld till the Apex Court.
It could be seen that facts of the case in hand are Page 33 of 37 HC-NIC Page 33 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT entirely different. Swapna Lok Housing Society is owner of the plot where construction has been raised. The plans are duly sanctioned and construction is as per plans which has been further supported by the Municipal Corporation. So, the aforementioned judgment may not be applicable to the facts of this case.
Similarly, Mr.Oza, has relied upon the decision in the case of Willson Jacob V/s. Kattappana Gram Panchayat and another made in WP (C) No.23696 of 2013 (J) dated 20th Day of February, 2015. In this case also, on a disputed plot, a construction was raised. This construction was without building permission and without leaving necessary set backs as was mandated under Rule 28 of the Kerala Panchayat Building Rules, 2011.
Once again, the facts in this case are different from the case in hand. As discussed earlier, it is still in dispute whether the passage in question is public or private road. Otherwise also, Kerala Panchayat Building Rules, 2011 may be different from the rules of the GDCR. As such, this judgment may not be helpful to advance case of the petitioner.
34. From the aforementioned discussion, there is irresistible conclusion that the petition in question is time barred. Petitioner-society has challenged the development permission dated 20.10.2014 in the year January, 2016 when the construction of 4 towers having 14 Page 34 of 37 HC-NIC Page 34 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT floors was already complete and more than 50% of the dwelling units are stated to have been sold to the third party and third party rights has been created and their objections have been disposed of by the Commissioner in the year 2011. The dispute regarding margins has been raised by the petitioner for the first time in the year 2016 when the construction was almost complete. Petitioner could have raised such disputes when Civil Revision Application before the High Court was being decided in the year 2015 and MOU entered between the parties was declared to be a final settlement.
35. Further, the dispute is regarding decision of AMC in granting development permission to the developer. The Corporation has supported the case of the developer and has stated that such development permission has been granted as per provisions of GDCR. The factual disputes raised by the petitioner-society cannot be looked into and decided in a writ petition. This is particularly so, when civil suit preferred by the same society have culminated into decrees way back in the year 1993 and 2015. Both petitioner as well as respondent-society cannot travel beyond MOU which has attained finality after having been rectified by the High Court and decree drawn by the Civil Court.
36. As discussed earlier, this is still a disputed question of fact whether the passage left out by the respondents is a public street or a private street as from Page 35 of 37 HC-NIC Page 35 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT the tone and tenor of the proceedings so far taken place between the parties, it appears to be a private passage for exclusive use of petitioners and respondents.
37. The development permission and the construction carried out by respondents is as per sanctioned plan within the four corners of their plot and it is highly disputed question of facts whether the petitioner-society can raise such objections regarding construction of the respondent-society at this stage. Further, the reliance placed by the Corporation on various clauses of GDCR particularly clause 13.3.1, 13.6.7 read with 13.6.2 leaves no doubt that side margins are duly taken care of the boundary of the plot to the building line from where the construction begins. The arguments raised by respondent No.2 in this regard gains importance from the fact that the passage in question forms part of their plot which is not disputed by the respondents.
38. In this background, the grievance of the petitioner regarding passage has been satisfied since long and apart from such easement rights, the petitioner has no other locus to any development permission which is granted to respondent No.2-Society in terms of decree drawn by the Civil Court. Therefore, the petition being devoid of any merit, is hereby dismissed. Rule is discharged.
Order in Civil Applications In view of the order passed in main petition, no order in Civil Applications. These civil applications Page 36 of 37 HC-NIC Page 36 of 37 Created On Sun Aug 13 12:34:52 IST 2017 C/SCA/1279/2016 CAV JUDGMENT stand disposed of accordingly.
(MOHINDER PAL, J.) ashish Page 37 of 37 HC-NIC Page 37 of 37 Created On Sun Aug 13 12:34:52 IST 2017