Gujarat High Court
Taj Cooperative Housing vs Surat Municipal Corporation on 22 April, 2013
Author: Harsha Devani
Bench: Harsha Devani
TAJ COOPERATIVE HOUSING SERVICE SOCIETY THRO SECRETARYV/SSURAT MUNICIPAL CORPORATION C/SCA/2671/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.2671 of 2013 ================================================================ TAJ COOPERATIVE HOUSING SERVICE SOCIETY THRO SECRETARY & 4....Petitioner(s) Versus SURAT MUNICIPAL CORPORATION & 5....Respondent(s) ================================================================ Appearance: MR SP MAJMUDAR, ADVOCATE for the Petitioners MR DHAVAL G NANAVATI, ADVOCATE for the Respondents No. 1 - 2 MR KEYUR K ACHARYA, ADVOCATE for the Respondent No. 5 MR YASH H JOSHI, ADVOCATE for the Respondent No. 6 MS MEDHA N PANDYA, ADVOCATE for the Respondents No. 3 - 4 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 22/04/2013 ORAL ORDER
By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 16.01.2013 passed by the respondent No.1 Surat Municipal Corporation granting development permission to the respondents No.3 and 4 herein.
The facts of the case stated briefly are that the petitioner No.1 Society is a Cooperative Housing Service Society. The predecessor-in-title of the respondents No.3 and 4 were granted development permission by the respondent No.1 Corporation on 17.01.2002. Such development permission came to be cancelled after considering the representation made by the members of the petitioner Society on 11.10.2007. The respondents No.2 and 3 challenged the said order before this court by way of writ petitions being Special Civil Applications No.30285 to 30287 of 2007. The said petitions came to be disposed of by an order dated 17.07.2008, permitting the original petitioners to approach the competent authority with a fresh application for necessary permission. It was further provided that if the application is received by the Corporation, the same shall be decided bearing in mind the objections, if any. Subsequently, Miscellaneous Civil Applications No.2279 of 2008 to 2281 of 2008 came to be filed by the petitioner Society for clarification. The said miscellaneous civil applications were disposed of by an order dated 22.8.2008, whereby it was clarified that if the Society makes out any case for inspection of the site by filing separate application, the authorities would examine the same in true spirit. It was further observed that if it is found necessary to have the site inspected before finalizing the application of the respondents No.3 and 4, the order passed by this court earlier would not debar adopting any such course of action. It appears that thereafter, a number of applications and objections came to be submitted by the petitioner Society as well as other petitioners to the Surat Municipal Corporation, objecting to the grant of permission in favour of the respondents No.3 and 4. It appears that on 16.11.2012, a notice came to be issued to the petitioner Society for hearing in connection with its objections. Thereafter, the impugned development permission came to be granted in favour of the respondents No.3 and 4, which has given rise to the present petition.
Mr. S. P. Majmudar, learned advocate for the petitioners vehemently assailed the impugned order, by submitting that the same is contrary to the provisions of the Bombay Provincial Municipal Corporation Act as well as the provisions of the Gujarat Town Planning & Urban Development Act, 1976. It was argued that none of the objections raised by the petitioners were ever considered while granting the impugned development permission which has adverse civil consequences upon the petitioners, because, the development permission is granted over the common plot of the Society. It was pointed out that as per the original sanctioned plan of the Society, the plot in question in which the development permission is given is, in fact, a common plot of the Society. That in view of the impugned development permission, the petitioners are unable to use their land freely. Reliance was placed upon the decision of this court in the case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust v. Vinodchandra G. Vaghela and another, (2010) 2 GLR 1820, for the proposition that a housing society cannot sell away its own common plot even by resolution of majority of its shareholders. It was argued that in the present case, similar analogy applies since the respondent Corporation has granted development permission over the common plot of the petitioner Society. It was urged that earlier, the development permission was cancelled by the respondent Corporation and thereafter, there is no change in the circumstances and therefore also, the respondent Corporation ought not to have reviewed its decision. It was submitted that the order of the respondent Corporation cancelling the development permission was not set aside by this court in the earlier proceeding and as such, the same still stands.
Referring to the order dated 22.08.2008 passed by this court in Miscellaneous Civil Application No.2279 of 2008 and cognate matters, it was submitted that the court had directed the authorities to carry out site inspection before finalization of the application of the petitioners if the petitioner Society made out a case by filing a separate application. It was submitted that despite the aforesaid specific directions issued by this court, no site inspection was carried out by the respondent Corporation before granting the impugned development permission. It was urged that the aspect that earlier the revised development permission given by the Corporation was set aside on 10.10.2007 has not even been considered by the respondent Corporation. Moreover, the consent of the Society has not been taken before granting development permission which is contrary to law. It was further submitted that despite the fact that the petitioner Society has raised objections against the grant of development permission, no order has been communicated to the petitioners that their objections have been rejected. It was urged that the character of the land in question is a common plot, which is not disputed. The development permission has been granted without site inspection and without carrying out measurement, and is contrary to the earlier order passed by the respondent Corporation cancelling the development permission. That the impugned order has been passed without any change in the circumstances in the context of the earlier development permission granted in favour of the respondents No.3 and 4. Moreover, no reasonable opportunity of hearing has been granted to the petitioners and no communication has been addressed to them rejecting their objections. It was submitted that the impugned development permission has been granted under the old G.D.C.R., whereas new G.D.C.R. has already come into force in the year 2006. It was, accordingly, urged that the impugned development permission suffers from the vice of breach of principles of natural justice and also suffers from various infirmities as pointed out hereinabefore. Under the circumstances, the petition requires consideration and ad-interim relief granted earlier is required to be confirmed.
Vehemently opposing the petition, Ms. Medha Pandya, learned advocate for the respondents No.3 and 4 drew the attention of the court to the map at Annexure L (page 184 of the petition), to point out that the common plot insofar as the subject land is concerned, was cancelled in the year 1981 itself and it has been shown to be cancelled, and as such, the subject land does not form part of the common plot, as is sought to be contended by the petitioners. It was further submitted that the petitioner Society is not a Cooperative Housing Society, but is a Cooperative Housing Service Society, which is not equivalent to a Cooperative Housing Society, which is generally the owner of the entire lands. It was submitted that insofar as the present Society is concerned, the same has been constituted only in the year 2007 for the purpose of providing services to the members of the Society. Under the circumstances, the Society has no locus to file any objections against the grant of development permission in favour of the respondents No.3 and 4, inasmuch as, the subject land is not vested in the Society, but the units belong to individual holders who are, inter alia, members of the Service Society. It was pointed out that the petitioners have not brought on record the correct facts, inasmuch as, the plan annexed with the affidavit-in-reply filed by the respondents makes it crystal clear that units No.58 and 59 are beyond the boundary and purview of the common open plot, which is popularly known as COP . The common open plot ceased to exist upon the passing of the revised plan in 2013 and in 2002. It was submitted that the first development permission was granted in the year 1981, wherein there were three common open plots. Thereafter, the reservation came into force under the Town Planning Act and, accordingly, one COP was reserved by the respondent Corporation and the land owners were permitted to place a fresh plan. It was submitted that as per 1981, the original plan of proposed Town Planning Scheme No.30 (Rander) bearing Original Plot No.81, permission was granted wherein only two common plots were shown. Out of the same, one common open plot was requisitioned by the respondent No.1 Corporation and one common plot admeasuring 728.06 square metres was maintained. The development permission was also sought for in the year 2002 for units No.58 and 59 along with other units, however, construction was not begun on units No.58 and 59 and the other unit No.61 was constructed as per sanctioned plan. It was submitted that in the writ petition filed by the petitioners, the court had directed the respondent Corporation to consider the fresh plan submitted in respect of units No.58 and 59 and that the Municipal Corporation would consider the same in accordance with law. It was submitted that, therefore, the contention that the earlier development permission having been cancelled, it was not permissible for the respondent Corporation to grant fresh development permission to the respondents No.3 and 4, is misconceived and flies in the face of the order passed by this court.
Insofar as the contention that no site inspection was carried out, the learned counsel drew the attention of the court to the notings made by the Junior Engineer which were submitted in connection with the application for development permission made by the petitioners (page No.321), to point out that the Deputy Commissioner had given instructions to the Junior Engineer to carry out the measurements of the units in question. On the date which was fixed for taking such measurements, the President of the Society was informed to remain present, however, the President insisted upon the presence of the Deputy Commissioner (P & D) at the time of such measurement. That the original owner, the Registered Architect, Licensed Surveyor and the Junior Engineer of the concerned West Zone were all present for carrying out measurement. However, the President was not present at home, nor did he receive the phone calls. Since the instructions were to carry out the measurement in presence of the President, such measurement could not be carried out. Moreover, four to five ladies had come and informed that the President had informed that no measurement should be carried out. It is in the light of the attitude of the President as well as the instructions issued by him, with a view to ensure that there is no breach of peace, they had returned without carrying out such measurements. However, the measurements carried out by the Architect at site as well as the maps thereof indicating the area, had been submitted before the Commissioner for the purpose of granting development permission to the respondents No.3 and 4. Referring to the order passed by this court in Miscellaneous Civil Application No.2279 of 2008 and cognate matters, it was pointed out that the court had not directed to carry out any such measurements, but had only observed that the said order would not prevent the authorities of the Corporation from inspecting the site, if otherwise it is found necessary. In case the applicants (the petitioners herein) make out any case for carrying out site inspection by filing separate applications, the authorities would examine the same in true spirit. It was submitted that, therefore, there was no specific direction by this court to carry out site inspection and that, such site inspection was required to be carried only if the Corporation found it necessary or if the petitioner society makes such application. It was submitted that in the facts of the present case, in view of the non-cooperative attitude of the President of the petitioner Society, no fault can be found with the respondent Corporation in not carrying out the site inspection.
Insofar as the contention that the petitioners were not afforded any opportunity of hearing, the learned counsel drew the attention of the court to the submissions made by the Junior Engineer dated 03.01.2013 (pages No.281 to 284), wherein various issues raised by the petitioner Society through the President/Secretary, who had remained present before the Deputy Commissioner, have been specifically referred to and considered. It was submitted that the contention that the petitioners were not afforded any opportunity of hearing is, therefore, contrary to the evidence on record. Various other factual aspects were brought to the notice of this court to submit that there is no infirmity in the impugned order passed by the respondent Corporation in granting development permission in favour of the respondents No.3 and 4.
The learned counsel for the respondents No.3 and 4 invited the attention of the court to paragraph 19 of the affidavit-in-reply filed by the respondent No.3, wherein it has been stated that in May, 2000, the Junior Engineer of the Surat Municipal Corporation had asked for an opinion of the Town Planning Officer vide his letter dated 3.4.2000 and the Town Planner had given written opinion, whereby it had been categorically stated that whatever the measurement as done by the Town Planning Officer will be considered to be final and binding to all concerned, including the land owner as well as to the unit holders. It was submitted that the petitioner has filed a suit relating to the subject matter of the present petition being Regular Civil Suit No.297 of 2002, which is pending before the concerned Civil Court, at Surat. The present petition, therefore, requires to be dismissed on this ground also, inasmuch as, the petitioners cannot be permitted to avail of remedies before two forums.
In rejoinder, Mr. S. P. Majmudar, learned counsel for the petitioners submitted that the map of the development plan, which was cancelled by the Corporation, if read conjointly with the current map, makes it amply clear that the present development permission also suffers from the same infirmity. It was submitted that if the contention of the respondents No.3 and 4 to the effect that the subject land does not form part of the COP, were to be accepted, there is all the more reason to carry out measurements as well as site inspection of the subject land. It was, accordingly, urged that the petition requires consideration.
Some facts which are necessary for determining the controversy involved in the present case are that the respondents No.3 and 4 claim to be the owners of units No.58 and 59 of final plot No.81 (new plot No.146 of Town Planning Scheme No.13 (Rander), Surat. Earlier, development permission had been granted in favour of the said respondents. However, by an order dated 11.10.2007 passed by the Urban Development Officer, Surat Municipal Corporation, the development permission came to be withdrawn and/or cancelled on various grounds. The respondents No.3 and 4 challenged the order dated 11.10.2007 by way of filing three separate writ petitions being Special Civil Applications No.30285 of 2007 to 30287 of 2007. By an order dated 17.07.2008, the said writ petitions came to be disposed of as the petitioners agreed that in view of the factual controversy involved in the impugned order, the petitioners (respondents No.3 and 4 herein) would approach the competent authority in the Surat Municipal Corporation seeking fresh permission for putting up construction on their units. The learned counsel for the respondent Corporation had stated that if such applications are received by the Corporation, the same would be examined and decided by the Corporation in accordance with law. The court disposed of the said three petitions by permitting the petitioners to approach the competent authority in Surat Municipal Corporation with fresh application for necessary permission for putting up construction on their plots. It was further observed that if any such applications are received by the Corporation within four weeks from the date of the order, the same shall be considered in accordance with law and unmindful of the earlier cancellation of such permission expeditiously keeping in mind the objection, if any. Subsequently, the petitioner Society filed miscellaneous civil applications being Miscellaneous Civil Applications No.2279 to 2281 of 2008, which came to be disposed of by an order dated 22.08.2008 in the following terms:
1.
Above group of petitions came to be disposed of by common order dated 17.7.2008 permitting he original petitioners to approach the competent authority with fresh applications for necessary permission for putting up construction on their plots. It was provided that if such applications are received by the Corporation, the same shall be decided bearing in mind the objections, if any received.
2. Learned advocate Shri Chhaya for the applicants submitted that present applicant has raised objections in response to the applications filed by the original petitioners. The applicant in these applications therefore, prays that Surat Municipal Corporation before deciding such applications should inspect the site.
3. Nothing stated in my order prevents the authorities of Corporation from inspecting the site, if otherwise, it is found necessary. If the applicant makes out any case for the same by filing separate applications if so desired, I am sure the authorities will examine in true spirit. If it is found necessary to have the site inspected before finalization of the applications of the original petitioner, order passed by this Court while disposing of the group of petitions does not debar adopting any such course of action.
4. With these clarifications, applications are disposed of.
Pursuant to the order dated 17.07.2008 made in Special Civil Applications No.30285 to 30287 of 2007, the respondents No.3 and 4 made fresh applications to the respondent Corporation seeking development permission.
A perusal of the submissions made by the Junior Engineer after examining the merits of the applications filed by the respondents No.3 and 4 (which have been obtained by the respondents No.3 and 4 under the Right to Information Act), reveals that earlier in the year 1981, the layout plan had been sanctioned. Thereafter, on 17.01.2002, vide TDO No.159, in the said lands, units No.57, 58, 59, 60 and 61, in all five units, as well as in the COP, building permission to the extent permissible came to be sanctioned. The President of the Society objected to the sanctioning of the construction permission on the said units and the COP. Hence, the Rajachiththi granted in respect of the Units No.58, 59 and 60 as well as the COP, except for the existing construction of the masjid, the permission granted in respect of the shops/community hall etc. came to be cancelled. It is further noted that the respondents No.3 and 4 have produced the sale deeds in respect of the units No.58, 59, 60, which reveal that the respondent No.3 is the owner of the unit No.58 and the respondent No.4 is the owner of the unit No.59.
In the aforesaid submissions, reference is also made to the issues raised by the President of the petitioner Society, wherein he has raised the following issues :-
In the original sanctioned plan (1982), the plots No.58 and 59 have been sanctioned as the COP.
The Society has not been granted any opportunity of personal hearing in terms of the order dated 17.07.2008.
The sale deeds of the plots No.58 and 59 have wrongly been made.
As per the file submitted with DPA/217, the area of the COP shown in the plan is less on site.
It is further noted that pursuant to the aforesaid submissions, the Deputy Commissioner, after affording an opportunity of hearing, has given the following item-wise reply :
As per the latest sanctioned layout plan of the Society, the land in question is not shown as the COP.
There is no reference to affording any opportunity of personal hearing in the order dated 17.07.2008 passed by the High Court.
The sale deeds in question are in force and have not been set aside. The question of the sale deeds being false does not fall within the scope of the Surat Municipal Corporation.
Upon calling upon the Society to produce the evidence to the effect that the area of the COP is incorrect, one Rafik Saiyed, member of the Society has produced a sheet of the measurement carried out through private means, which reveals that the COP of 96 metres is maintained. Hence, the Deputy Commissioner has given instructions to carry out the measurements. At that time, the President of the Society had requested that the measurement be carried out in his presence, which had been accepted. The Deputy Commissioner had given instructions to keep him present at the time when the measurements are carried out. Subsequently, it is noted that at the time when the measurements were to be carried out, the President had not remained present and was not receiving any phone-calls. Moreover, he had issued instructions to the members of the Society that the measurement should not be carried out in his absence. That in view of the non-cooperative attitude of the President as well as with a view to see to it that there is no breach of public peace, no such measurement was carried out.
In the light of the aforesaid facts, the Junior Engineer had recommended that the application made by the petitioners should be filed and the development permission should be granted. It appears that after considering the relevant factors, the respondent Corporation has granted the development permission in question.
In the backdrop of the aforesaid facts, it may be noted that the petitioner Society is not a Co-operative Housing Society and as such, is not the owner of the subject lands. Moreover, from the record of the case, it is apparent that the development plan of 1981 subsequently came to be changed and the subject lands no longer form part of the COP. The contention raised by the learned counsel for the petitioners that the subject land forms part of the COP and as such, in view of the decision of this court in the case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust v. Vinodchandra G. Vaghela and another (supra), wherein it is held that the area reserved for common plot cannot be converted to any exclusive use without permission of competent authority, is misconceived, inasmuch as, in the facts of the present case, the respondent Corporation, after examining the record of the case, has found as a matter of fact that the subject lands do not form part of the common open plot . Thus, the main contention raised by the petitioner Society does not merit acceptance.
Insofar as the breach of the principles of natural justice is concerned, a perusal of the order dated 17.07.2008 passed by this court reveals that the petitioners therein, viz. the respondents No.3 and 4 herein, were permitted to make a fresh application for necessary permission for putting up construction on their plots. The said order no where states that the petitioner Society was required to be afforded any opportunity of hearing while considering the application made by the respondents No.3 and 4. Furthermore, by the clarificatory order dated 22.08.2008, all that was clarified was that the petitioners herein have raised objections in response to the applications filed by the original petitioners and that before deciding the applications, the respondent Corporation should inspect the site. In connection with such request, the court had merely observed that the said order would not prevent the authorities of the Corporation from inspecting the site, if otherwise it is found necessary. The court further observed that if the applicant, namely the petitioner, makes out any case for carrying out site inspection by filing separate application if so desired, the authorities would examine the same in true spirit.
From the facts noted hereinabove, it does not appear that the petitioner Society has made any application for site inspection. However, with a view to resolve the controversy in issue, the Deputy Commissioner has issued direction to carry out site inspection in the presence of the President of the petitioner Society. However, as noted hereinabove, the said authority had to give up the same in view of the non-cooperative attitude adopted by the President of the Society as well as the fact that certain ladies of the petitioner Society had informed the persons who had gone for measurement that the President had informed them that no such measurement should be carried out in his absence. Thus, with a view to avoid any breach of peace, the representatives of the respondent Corporation were not in a position to carry out the measurement of the plot in question. Thus, there was no mandate by this court to the respondent Corporation to carry out fresh site inspection and as such, it was permissible for the respondent Corporation to place reliance upon the maps and measurements as produced before it by the authorities.
Insofar as the contention that the earlier development permission having been set aside by this court, the Corporation ought to have considered the said order before granting fresh permission is concerned, reference may be made to the order dated 17.07.2008 made by this court in Special Civil Applications No.30285 to 30287 of 2007, wherein the court had specifically observed that the petitioners (respondents No.3 and 4 herein) are permitted to make fresh application for necessary permission for putting up construction on their plots. It was further observed that such application shall be considered in accordance with law and unmindful of the earlier cancellation of such permission. Thus, it was not permissible for the respondent Corporation to take into consideration the earlier cancellation of the permission. Such contention of the learned counsel for the petitioners, therefore, deserves to be rejected.
Insofar as the contention that there is no change of circumstances to grant Rajachiththi, inasmuch as, there was no change in the position from the time when the earlier development permission came to be cancelled for the Corporation to deviate from the earlier ground is concerned, it may be pertinent to note that though this court had not set aside the order dated 10.07.2007 passed by the respondent Corporation cancelling the development permission earlier granted, the court had left it open to the petitioners to make fresh application for necessary permission with specific observations that the Corporation shall consider the same in accordance with law, without taking into consideration earlier order of cancellation. Under the circumstances, the said contention also does not merit acceptance.
Besides, as noted hereinabove, after considering the submissions advanced on behalf of the petitioner Society as well as after minutely examining the facts of the case, the respondent Corporation has granted the development permission. Upon a perusal of the record of the case as well as in the light of the aforesaid discussion and more particularly, the factors which were taken into consideration by the respondent Corporation while granting the development permission, this court does not find any infirmity in the impugned development permission so as to warrant interference.
Moreover, the petitioner Society is merely a Housing Service Society and not a Cooperative Housing Society, which has any interest in the common plot or any of the lands of the members of the Society. The petitioner Society, therefore, cannot be equated with a Cooperative Housing Society which is the owner of the plots occupied by the members as well as the common plots. Insofar as the contention raised on behalf of the petitioners that the development permission cannot be granted without the approval of the Society is concerned, it may be reiterated that the petitioner Society is only a Housing Service Society and not a Cooperative Housing Society which is the owner of the subject land. Moreover, the petitioner Society has come into existence only in the year 2007 and as such, even when the individual members constructed their houses, no permission of the Society would have been sought for at the relevant time. Under the circumstances, such contention being misconceived, is, accordingly, rejected.
In the light of the aforesaid discussion, this court does not find any infirmity in the impugned order passed by the respondent Corporation granting development permission in favour of the respondents No.3 and 4. The petition, therefore, fails and is, accordingly, dismissed. Notice is discharged with no order as to costs.
At this stage, the learned counsel for the petitioners seeks stay of this order for a period of four weeks.
Having regard to the facts and circumstances of the case, such request is rejected.
(HARSHA DEVANI, J.) parmar* Page 19 of 19