Gujarat High Court
Fulaji Rumalji Thakor Thro Poa Ashok ... vs State Of Gujarat Thro on 25 March, 2013
Author: Harsha Devani
Bench: Harsha Devani
FULAJI RUMALJI THAKOR THRO POA ASHOK DINANANATH DUBEY....Petitioner(s)V/SSTATE OF GUJARAT THRO SECRETARY C/SCA/17502/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.17502 of 2012 ============================================= FULAJI RUMALJI THAKOR THRO POA ASHOK DINANANATH DUBEY....Petitioner(s) Versus STATE OF GUJARAT THRO SECRETARY & 6....Respondent(s) ============================================= Appearance: MR RS SANJANWALA, SR. ADVOCATE with MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No.1 GOVERNMENT PLEADER for the Respondent(s) No.1 MR SHITAL R PATEL, ADVOCATE for the Respondent(s) No.5 ============================================= CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI Date : 25/03/2013 ORAL ORDER
1. Learned advocate for the petitioner has tendered a draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.
2. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs:-
7.
The Petitioner therefore prays that -
This Hon ble Court be pleased to admit this petition.
This Hon ble Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 1st December 2012 and declare the same to be null and void and further be pleased to direct the Respondent Authorities to initiate appropriate action against the Respondents.
This Hon ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondents to initiate appropriate steps in accordance with law pursuant to the application made by the Petitioner for cancellation of the plans sanctioned, permission granted and for removal of the unauthorized construction made by the Private Respondent made on the survey number 16/3 and 252/2 situated at village Bodakdev, Tal Daskroi of Dist. Ahmedabad.
This Hon ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ order or direction, directing the Respondents to stop the further construction of the building at the lands being survey number 16/3 and 252/2 situated at village Bodakdev, Tal Daskroi of Dist. Ahmedabad.
This Hon ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, directing the town planning authorities to modify the town planning record by substituting the name of the private respondent with that of the Petitioner, who is the owner of the land in question.
3. The facts giving rise to the present petition are that lands bearing Survey No.16/3 alongwith other survey numbers situated at village Bodakdev, taluka Daskroi of district Ahmedabad were of the ownership of one Chunthaji Cheharji. After his death, the name of his widow Diwaliben was entered in the revenue record by virtue of Mutation Entry No.983. Upon the death of Bai Diwali, approximately about five years thereafter, the name of her heir Bai Mena came to be entered in the record of rights vide Mutation Entry No.1130 dated 27th March, 1953. When the Bombay Personal Inams Abolition Act, 1952, came to be implemented, the said lands were acquired by the State in the year 1955 and corresponding mutation entry was made vide Entry No.1153. The said lands were later on re-granted to the direct descendant of the erstwhile occupant. Vide Entry No.2258 dated 15th September, 1976, it was recorded that the subject land as well as other lands were running in the name of Mena Chunthaji Kesraji; the lands were undivided ancestral lands and were running in the name of Chunthaji Kesraji and the name of Bai Mena had been entered in respect thereof by virtue of succession, however, Dahyaji Chhaganji and Bai Pali, widow of Babbaji Chhaganji had an equal share in the said property and hence, after obtaining the statements of the parties in the presence of panchas and elders of the village, the names of Dahyaji Chhaganji and Bai Pali have been entered as co-owners. Thereafter, upon the death of Bai Mena, vide Mutation Entry No.2719 dated 28th July, 1979, the names of Rumalji Somaji (husband of Bai Mena) and Fulaji Rumalji (son of Bai Mena viz., the petitioner herein) came to be entered in the record of rights in respect of the said lands. Later on, by Entry No.2994 dated 8th February, 1981, it was recorded that Menaben, daughter of Chunthaji Kesraji had expired without any heirs and upon the death of Dahyaji Chhaganji, the names of the heirs namely, one Shakriben, widow of Dahyaji Chhaganji, Jadiben, daughter of Dahyaji Chhaganji and Shantaben, daughter of Babbaji Chhaganji came to be entered in the record of rights.
4. Pursuant to the above revenue entries, the heirs of Dahyaji Chhaganji sold the lands bearing survey No.16/3 of village Bodakdev, taluka Daskroi, district Ahmedabad (hereinafter referred to as the subject land ) to one Sureshkumar Manilal by a registered sale deed and corresponding Mutation Entry No.3649 came to be made in the record of rights.
5. It appears that the heir of Babbaji Chhaganji challenged Entry No.2719 made in favour of the petitioner and his father before the revenue authorities which came to be upheld by the revenue authorities. Later on, pursuant to request made by the petitioner, the Deputy Collector initiated suo motu proceedings which culminated into an order dated 2nd April, 1990 quashing and setting aside mutation entries No.2994, 3001, 3592, 3649 and 3676 to 3679. Being aggrieved by the said order, different appeals came to be preferred before the Collector by all the parties to the lis. By a common order dated 25th March, 1991, the Collector dismissed the appeals. The order of the Collector came to be carried in revision by the parties to the said proceedings before the Secretary (Appeals), who dismissed the revision preferred by the petitioner and allowed the revision applications filed by the other parties and upheld the entries subject to the outcome of the civil suit.
6. It appears that the petitioner also preferred Civil Suit No.162/1989 seeking declaration and cancellation of the documents executed qua several parcels of land including the subject land which came to be dismissed by the civil court. It may be noted that in the petition it is averred that the civil court was pleased to dismiss the suit of the petitioner and simultaneously set aside the documents executed qua the lands in question vide its judgment and decree dated 14th February, 2011, which is an incorrect and misleading statement, inasmuch as, the civil court has dismissed the suit but has not set aside the documents executed qua the lands in question. The aforesaid judgment and decree has been challenged by the petitioner by way of appeal before the District Court, being Regular Civil Appeal No.10/2011 which is pending before the concerned court. However a perusal of the order dated 30th April, 2012 made by the learned Fourth Additional District Judge, Ahmedabad (Rural) below Exhibit 49 in Civil Appeal No.10/2011 (which has been placed on record by way of a draft amendment) reveals that in view of the settlement arrived at with respondent No.5-Suresh Manilal, he had been deleted from the array of defendants in the civil suit and accordingly an amended plaint had been submitted by the appellant. Also no evidence was led against the said respondent nor were any submissions made against him, therefore, joining him as a respondent in the appeal did not appear to be just and proper. The appellate court has, accordingly, ordered the respondent No.5 - Sureshkumar Manilal to be deleted as party respondent in the appeal. It is the case of the petitioner that the petitioner is in the process of challenging the said order before the appropriate forum.
7. Pending the litigation, Shri Suresh Manilal sold the subject land to the respondents No.5 and 6, namely, Manjit Singh Jagat Singh Vasu and Surinder Kaur Manjit Singh Vasu vide a sale deed dated 23rd February, 2005 which came to be registered in the year 2011. The respondents No.5 and 6 approached the respondent No.3 Ahmedabad Municipal Corporation with a request to grant permission to develop the subject land and to pass a plan for development thereof. The permissions came to be granted and accordingly development was going on over the said property. It is the case of the petitioner that since the judgment and decree passed by the civil court had not been challenged by the respondents, the petitioner approached the respondent Corporation with a request dated 8th May, 2012 to cancel the permissions and the plans granted to the respondents No.5 and 6 as the same was based upon illegal documents and to stop the development on the concerned land. Since the grievance of the petitioner was not redressed, the petitioner approached this court by way of a writ petition being Special Civil Application No.8337/2012. By an order dated 13th September, 2012, the said petition came to be disposed of with a direction to the respondent Corporation that it shall give opportunity of being heard to the respondents No.9 and 10 (the respondents No.5 and 6 herein) and other private respondents, who are mentioned in the Development Permission dated 26th August, 2009 granted by the AUDA. The respondent No.3 Corporation shall also verify from the records as to whether during the interregnum period any other persons have acquired right, title or interest over the land in question and shall also give opportunity of hearing to such persons. After hearing the parties, the respondent No.3 Corporation shall take appropriate decision within a period of eight weeks from the date of receipt of the order.
8. Pursuant to the aforesaid directions issued by this court, the respondent No.3 Corporation by an order dated 1st December, 2012 rejected the representation made by the petitioner and held that there was no illegality in the order granting development permission and also revoked the order whereby the development permission was kept in abeyance. Being aggrieved, the petitioner has filed the present petition challenging the aforesaid order and seeking the reliefs noted hereinabove.
9. Mr. R.S. Sanjanwala, learned senior advocate with Mr. Ashish Dagli, learned advocate for the petitioner vehemently contended that the subject land was originally owned and possessed by Chunthaji Cheharji and upon his death, devolved upon Diwaliben and upon the death of Diwaliben, the same devolved upon Menaben namely, the mother of the petitioner. That Babbaji Chhaganji or Dahyaji Chhaganji had no interest in the subject land; however, they had fraudulently got their names entered by virtue of the Mutation Entry No.2258 dated 15th September, 1976. Referring to the Mutation Entry No.2994 dated 8th February, 1981, it was pointed out that such mutation entry is fraudulent on the face of the record, inasmuch as, it has been stated therein that Menaben Chunthaji had died without any heirs, despite the fact that she was succeeded by her husband Rumalji Somaji and son Fulaji Rumalji (the petitioner herein) and that the revenue authorities without considering the earlier entry whereby the name of the petitioner and his father had been entered in the record of rights, had made Mutation Entry No.2994 recording that Menaben had died without any heirs. It was submitted that clearly, therefore, the very basis of the claim of the predecessor in title of the respondents No.5 and 6 is based upon a fraud. It is settled legal position that fraud vitiates everything and as such, any right, title or interest which the respondents No.5 and 6 may have obtained on the basis of such fraud committed by their predecessor in title, would vitiate the sale made in their favour. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Meghmala and Others vs. G. Narasimha Reddy and Others, (2010) 8 SCC 383, for the proposition that an act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case, a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. It was submitted that in the facts of the present case, fraud is writ large on the face of the record in view of the fact that vide Mutation Entry No.2994 dated 8th February, 1981, the names of the heirs of Dahyaji Chhaganji have been entered and while doing so, it has been recorded that Menaben Chunthaji had expired without any heirs. It was urged that the respondent Corporation has failed to consider the record produced before it in proper perspective and as such, the impugned order is required to be quashed and set aside and the development permission granted to the respondents No.5 and 6 is required to be cancelled.
9.1 Strong reliance was placed by the learned counsel upon the judgment and decree dated 14th February, 2011 passed by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.162/1989 and more particularly to the operative part thereof to submit that though the suit instituted by the petitioner had been dismissed, the court had held that the sale deeds which were subject matter of challenge therein were not legal. It was submitted that the observations made in the operative part of the judgment and decree passed by the civil court are binding upon the respondents. The operative part says that the document executed in favour of the predecessor in title of the respondents No.5 and 6 is not legal. Neither their predecessor in title nor the respondents No.5 and 6 have challenged the observations made in the judgment and as such, the same are binding upon them. It was submitted that the respondent Corporation while considering the representation made by the petitioner has failed to take into consideration the judgment and decree passed by the civil court while upholding the development permission granted in favour of the respondents No.5 and 6. It was argued that the operative part of the decree suggests that the legality of the entries on which the respondents base their claim has not been accepted by the civil court. It was further contended that though the Corporation may not be entitled to consider the scope of the fraud as well as the dispute regarding title between the parties, the petitioner is entitled to show that the claim of the respondents No.5 and 6 was based upon fraudulent entries made in favour of the predecessors in title. It was argued that the jurisdiction of this court is not circumscribed by the issues which the Corporation could have decided and that the court can go into the question of title and it is permissible for the petitioner to show that the same is based on fraud. Referring to Mutation Entry No.2258 whereby the names of Dahyaji Chhaganji and Bail Pali, widow of Babbaji Chhaganji were entered in the record of rights, it was contended that even if the said entry is accepted to be true, at best, the said persons would become equal owners by virtue of the said entry, they would not become the sole owners of the lands in respect of which such entry is made. It was, accordingly, urged that the impugned order passed by the Corporation is required to be quashed and set aside and the development permission granted in favour of the respondents No.5 and 6 deserves to be cancelled.
10. Vehemently opposing the petition, Mr. Shital Patel, learned advocate appearing on behalf of the respondent No.5 on caveat had earlier placed on record copies of an application Exh.223 filed before the civil court in Regular Civil Suit No.162/1989 as well as the order dated 23rd February, 2005 passed thereon. It was submitted that insofar as the subject land namely, land bearing Survey No.16/3 of Mauje Bodakdev is concerned, the petitioner who was the plaintiff in the said civil suit had by the said application sought permission to withdraw the suit in respect thereof and by the order dated 23rd February, 2005, the court had permitted the plaintiff to withdraw the suit in respect of the subject land. It was pointed out that pursuant to the said order, the petitioner (original plaintiff) had amended the plaint and had deleted the plaintiffs No.1 to 5 including Suresh Manilal namely, the predecessor in title of the respondents No.5 and 6. It was submitted that the suit having been withdrawn in respect of Survey No.16/3 of Mouje Bodakdev, it was no longer permissible for the petitioner to challenge the development permission granted in respect thereof to the respondents No.5 and 6. The attention of the court was drawn to the fact that in the previous petition as well as the present petition, the petitioner has suppressed the aforesaid fact and it is only after the learned advocate for the respondent had placed on record a copy of the application Exh.223 and the order passed thereon, that the petitioner has submitted the draft amendment and placed on record the said documents. It was submitted that the suit had been unconditionally withdrawn in respect of Survey No.16/3 and as such, by virtue of the provisions of sub-rule (4) of rule 1 of Order XXIII of the Code of Civil Procedure, the petitioner is barred from instituting a fresh suit in respect thereof. Referring to the development permission granted in favour of the respondents No.5 and 6 and more particularly to the conditions subject to which such permission is granted, it was pointed out that by virtue of such permission, the applicant does not get any permission qua the ownership or the area of the land but the permission is limited to the construction thereon. It was submitted that in view of the fact that the petitioner had unconditionally withdrawn the suit qua Survey No.16/3 and had settled the matter, he has no locus to file the present petition. It was further urged that the impugned order passed by the respondent Corporation is not manifestly unjust and that no injustice is caused to the petitioner as he has failed to show any right, title or interest in the subject land. It was contended that in any case when the development permission was granted in the year 2009, the judgment and decree passed by the trial court was not in existence and as such, the permission which had been granted was valid. However, now by taking shelter behind some observations made in the order of the civil court, proceedings have been initiated for cancellation of the development permission. Referring to the power of attorney granted by the petitioner in favour of three persons including Ashok Dinanath Dubey, it was submitted that the same is nothing but champerty as the power of attorneys have, by virtue of the said deed, purchased litigation from the petitioner. It was submitted that the jurisdiction of the Corporation while examining the validity of the development permission pursuant to the directions issued by the court, was limited and that the impugned order being just, legal and proper, does not warrant interference by this court.
11. Having regard to the controversy involved in the present case which is limited to the validity of the development permission granted by the respondent No.3 Corporation in favour of the respondents No.5 and 6, it is not necessary for this court to deal with the issues relating to the title of the subject land.
12. From the contentions raised by the learned counsel for the petitioner before this court as well as before the respondent Corporation, it is evident that the entire basis of the case of the petitioner is the judgment and decree passed by the trial court in Regular Civil Suit No.162/1989 and more particularly the operative part thereof. In this regard, it may be noted that it is the specific case of the contesting respondents namely, respondents No.5 and 6 that by the application Exh.223 dated 23rd February, 2005 made by the petitioner, the petitioner had sought permission to withdraw the suit against the defendants No.1 to 4 (heirs of Babbaji Chhaganji and Dahya Chhaganji) and 5 (Suresh Manilal) qua Survey No.16/3 of Mauje Bodakdev and that by an order dated 23rd February, 2005, the court had permitted the plaintiff to withdraw the suit to that extent and had directed him to amend the plaint accordingly. A perusal of the application Exh.223 shows that in paragraph 6 thereof, it has been stated that under the settlement arrived at, the defendant No.5 has paid Rs.1,50,000/- to the plaintiff. It is also categorically stated therein that the settlement is limited to Survey No.16/3 and that the plaintiff unconditionally gives up the dispute in respect of the said survey number. The civil court in its order dated 23rd February, 2005 made on the said application has observed that the plaintiff is present, his learned advocate is present. The power of attorney of defendants No.1 to 3 as well as defendant No.5, are present and the learned advocate is also present. The defendants No.1 to 3 and 5 have no objection if the suit is unconditionally withdrawn. The court has observed that if the suit is withdrawn unconditionally against the defendants No.1 to 5, no lis survives against them and hence, permission is granted to withdraw the suit against the defendants No.1 to 5 under rule 1 of Order 23 of the Code of Civil Procedure. It is further directed that the plaintiff should make necessary amendments in the plaint within a period of fourteen days.
13. A perusal of the judgment and decree dated 14th February, 2011 made in Regular Civil Suit No.162/1989 reveals that during the course of the trial, the power of attorney of the defendants No.1 to 4 had sought permission to file a reply vide Exh.220. However, the said application had been rejected on the ground that the plaintiff had given a purshis Exh.223 and the suit had been withdrawn against the defendants No.1 to 5, hence, the question of their filing any reply would not arise (paragraph 10). In paragraph 12 of the judgment, it has been recorded that the defendant had contended that the plaintiff had vide purshis Exh.223 unconditionally withdrawn the suits against the defendants No.1 to 4 and as such, they were no longer defendants in the said suit, hence, the challenge to the other sale deeds which had been executed by the defendants No.1 to 4 is required to be rejected on the ground of non-joinder of necessary parties, inasmuch as, in the amended plaint submitted by the plaintiff pursuant to the order passed below Exh.223, the defendants No.1 to 5 had been deleted. On behalf of the plaintiff (the petitioner herein), it has been submitted that he had settled the matter only in respect of Survey No.16/3, that is, in respect of the sale deed executed on 7th May, 1985 by the defendants No.1 to 4 in favour of the defendant No.5 and that the defendants No.1 to 4 had been deleted only qua Survey No.16/3. In paragraph 14 of the judgment, the court has recorded that though in the amended plaint, the names of defendants No.1 to 5 have been deleted, the original settlement pertains only to Survey No.16/3 and hence, the suit can be said to have been only partly withdrawn to the extent of Survey No.16/3. In paragraph 17, it has been observed that the plaintiff has submitted that the admissions made in the application Exh.223 are in respect of Survey No.16/3 alone. The cause title of the judgment and decree passed by the trial court shows that the defendants No.1 to 5 have been deleted to the extent the suit relates to survey No.16/3 as per the order passed on Exhibit-223.
14. A perusal of the judgment and decree further reveals that the trial court has framed several issues all of which have been answered in the negative. Some issues which are relevant for the present purpose are:
(1)Whether the plaintiff proves that upon confirmation of Entry No.2719 in respect of lands bearing Survey No.300/5, 301/3, 252/2 and 301/1 and 16/3 of Mauje Bodakdev, taluka Daskroi, district Ahmedabad by the different revenue authorities, he becomes the independent owner of the suit property?(2)
Does the plaintiff prove that in view of the Entries No.2258, 2994, 3001, 3592, 3649 being invalid and false, the defendants do not have any right or title over the suit property?(3)
Whether the plaintiff proves that the defendants do not have any right over the suit property?
15. All the above issues have been answered in the negative. It may also be pertinent to note that in respect of issue No.6 namely, whether the defendant No.5 proves that the suit is barred by limitation and hence, the suit of the plaintiff is required to be dismissed, the court has observed in paragraph 26 of the judgment that the suit is not dismissed on the ground of limitation but on the ground that the plaintiff does not have any right or title over the suit lands.
16. At this juncture, reference may be made to the operative part of the judgment and decree, which, as translated into English reads thus:
The suit of the plaintiff is dismissed with costs and the order passed on the interim injunction application Exh.-5 is hereby vacated and Entry No.5767 dated 23rd September, 1996 Exh.309 which has been made the basis of deeds as well as all the deeds in respect of the suit properties as well as the sale deed Exh.310 which has been executed in favour of the defendant No.5, such sale deeds have not been considered to be legal.
Since settlement application Exh.223 has been submitted for partly withdrawing the suit, there is no entitlement to any decree on the basis thereof.
The application Exh.26 filed by the defendant that the court fee is not sufficient is hereby rejected.
Decree to be drawn in terms of the judgment.
17. Thus, though the operative part of the judgment and decree is slightly ambiguous, the above findings are clear as also the fact that the suit has been dismissed. Placing reliance upon the operative part of the judgment and decree and more particularly the observations that the sale deeds including sale deed Exh.31 (which relates to Survey No.16/3) have not been considered to be legal, the petitioner seeks to contend that the sale deed not being legal, the development plan which has been sanctioned on the basis of such sale deed is required to be cancelled. It may be pertinent to note that though the observation made in the judgment is that the above referred sale deeds have not been considered legal, the petitioner has in paragraph 2(H) of the petition, categorically averred that the civil court was pleased to dismiss the suit of the petitioner and simultaneously set aside the documents executed qua the sale deeds in question vide its judgment and decree dated 14th February, 2011. Such averment made on oath, is clearly incorrect and highly misleading inasmuch as the civil court has dismissed the suit and has nowhere set aside the documents executed qua the suit lands.
18. It may also be noted that the relief claimed in the civil suit was to declare the plaintiff to be the exclusive owner of Survey No.300/5, 301/3 and 16/3 of village Bodakdev and to declare Entries No.2258, 2994, 3001, 3592, 3646 as wrong, illegal, non-est, void and that the same do not create any rights in the defendants. A further declaration has been sought to the effect that the sale deeds executed between the defendants No.1 to 4 and defendants No.5 and 6 are illegal, non-est and do not create any right, title or interest in any of the defendants. As noted hereinabove, the said suit has been dismissed by holding that the plaintiff has no right, title or interest in the suit lands. The court has not set aside the sale deeds executed in favour of the defendants No.5 and 6 therein. Under the circumstances, as on date, there is a judgment and decree of the civil court in favour of the defendants. Of course, the judgment and decree is subject matter of challenge in appeal, however, insofar as the Survey No.16/3 of Mauje Bodakdev is concerned, as noted hereinabove, the plaintiff had withdrawn the suit to the extent of the said land and as such, the judgment and decree passed by the civil court is limited to the other lands and does not relate to Survey No.16/3 of Mouje Bodakdev. As noticed earlier, insofar as the Survey No.16/3 is concerned, the defendants No.1 to 5 had been deleted and hence, the judgment and decree passed by the trial court does not bind the said defendants qua survey No.16/3. The contention that the respondents No.5 and 6 not having challenged the operative part of the decree, the same is binding upon them, deserves to be stated only to be rejected inasmuch as it is a well settled legal principle that a decree is binding only to the parties to the suit and neither the respondents No.5 and 6 nor their predecessor in title was a party to the suit insofar as survey No.16/3 of Mouje Bodakdev is concerned.
19. Examining the impugned order on merits, though at first blush, the same appears to be a non-reasoned order, a closer look reveals that firstly, the authority has set out the submissions made on behalf of the petitioner and thereafter the submissions of the respondent No.5 which is followed by the stand of the Department wherein it is observed that the respondent Manjit Singh had made an application seeking development permission from AUDA in the year 2009 at which point of time he had produced the 7/12 extract on 20th May, 2009 wherein the names of Manjit Singh and Surinder Kaur were recorded as owners and AUDA had granted development permission in their name. At the time when the development permission was granted by AUDA, Thakor Kankuben (daughter of Rumalji Somaji and wife of Udaji Shankarji) has raised objection against the grant of development permission, however, no documentary evidence had been produced by her. The petitioner Fulaji Rumalji having entered into a compromise in Civil Suit No.162/1989, the suit had been withdrawn which has been recorded vide Mutation Entry No.8910 in the 7/12 record. Keeping in view the aforesaid fact, the development permission had been granted as no dispute survived qua the application made by Kankuben. The petitioner Fulaji Rumalji Thakor had produced the latest 7/12 extracts wherein the names of Manjit Singh Vasu and Smt. Surinder Kaur have not been entered, however, the name of Fulaji Rumalji and Rumalji Somaji are shown to have half share and Shakriben and others are shown to have half share. Such extract is dated 19th September, 2012. Shakriben and others had executed a sale deed in favour of Suresh Manilal in respect of the entire land and on the basis of such sale deed; Suresh Manilal had sold the subject land to the defendants. Reference was made to the existing clause 3.3(1)(a) of the GDCR which provides thus:
The applicant shall submit satisfactory documentary legal evidence of his right to develop or to build on the land in question including extract from the property register for city survey lands or an extract from the record of rights for revenue lands or the copy of the index of registered sale deed as the case may be.
As per the submission made by the petitioner in Special Civil Application No.8337/12 that vide order dated 14th February, 2011 passed in C.S. No.162/89 the sale deed made in favour of Suresh Manilal had been set aside, the development permission granted by AUDA had been kept in abeyance by the respondent No.3 till the final disposal of the petition. It is further observed that recently the Senior Town Planner has addressed a communication dated 1st October, 2012 to the effect that in respect of all permissions granted by AUDA prior to 14th October, 2011, AUDA is required to take all subsequent actions including grant of BU Permission. It is further recorded that both the petitioner as well as the opponents therein had merely relied upon the decision of the civil court in Regular Civil Suit No.162/1989 which is a civil matter. While granting development permission under the GDCR, the applicant is required to produce sufficient documentary evidence on the basis of which development permission can be granted. At the relevant time on 26th August, 2009, AUDA had granted permission to Manjit Singh Vasu and Smt. Surinder Kaur after taking into consideration the documentary evidence which was produced by them. At that time also, the sister of the present petitioner namely, Kankuben Thakor had raised objection against the grant of development permission which had been duly considered and taking into consideration the documentary evidence produced by the opponents, the AUDA which was the competent authority had granted development permission. It is further observed that pursuant to the directions issued by the Gujarat High Court in Special Civil Application No.8337/2012, both the parties shall be granted an opportunity of hearing. The applicant namely, the petitioner herein has mainly made submissions regarding his civil rights. It is observed that development permission is granted in accordance with the provisions of the GDCR in respect of permissible construction and permissible user. Such development permission does not decide any ownership rights of the parties. In the present case, AUDA has granted development permission on 26th August, 2009 in consonance with the provisions of the GDCR and hence, there is no reasonable cause for any intervention. It is in the light of the aforesaid findings recorded by the respondent No.3 in the impugned order that the representation made by the petitioner has been rejected and the development permission granted by AUDA has been confirmed.
20. On a plain reading of the above order, it is apparent that the same is a reasoned order and as such, the contention that the same is an unreasoned order and has been passed without taking into consideration the directions issued by this court in the earlier petition filed by the petitioner does not merit acceptance. Insofar as the submissions regarding fraud vitiating everything is concerned, it cannot be gainsaid that fraud does not have to be only pleaded but proved. At present there is no finding rendered by any competent authority that such entries were made fraudulently and as such, the respondent Corporation while considering the validity of the development permission granted by AUDA cannot go into the question as regards the validity or otherwise of mutation entries made in the revenue record. Apart from the above, even if it were accepted that mutation entry No.2994 dated 8th February, 1981 wherein it is recorded that Menaben daughter of Chunthaji Kesraji died without any heirs is a fraudulent entry, insofar as the subject land viz., Survey No.16/3 of Mauje Bodakdev is concerned, from the judgment and decree passed by the civil court, it is more than amply clear that the petitioner has given up the challenge to the sale deed executed in favour of Suresh Manilal as well as mutation entry No.2994 and other entries which were subject matter of challenge in the civil suit in respect of the said land by withdrawing the suit against the defendants No.1 to 5 qua the subject land. Thus, any observation made in the said suit has to be read only in respect of the other lands and not in respect of the subject land as on the date when the judgment and decree came to be passed by the trial court, the suit had already stood withdrawn qua the subject land. The petitioner, therefore, ceased to have any right, title or interest in the subject land. Thus, the challenge to the development permission granted in respect of the subject land on the basis of the judgment and decree of the civil court wherein the sale deed as well as the mutation entries insofar as the sale related to the subject land were no longer in challenge, has rightly been rejected by the respondent No.3 Corporation.
21. In the backdrop of the aforesaid facts and circumstances, it is evident that the petitioner had arrived at a compromise with the defendants No.1 to 5 in the civil suit pursuant to which vide Exhibit 223, he had sought permission to withdraw the suit qua the subject land, viz. land bearing survey No.16/3 of Mouje Bodakdev and vide order dated 23rd February, 2005 such permission had been granted by the trial court. [The facts regarding the application Exhibit 223 and the order passed thereon, appear to have been deliberately suppressed by the petitioner in the earlier petition as well as in the present petition, and it is only after the said documents had been placed on record by the learned counsel for the respondent No.5 that the petitioner came out with a draft amendment and placed such documents on record.] Subsequently, as rightly pointed out by the learned advocate for the petitioner, by virtue of a power of attorney made in favour of three persons, including Shri Ashok Dinanath Dubey, through whom the present petition has been filed, the petitioner appears to have sold the right to litigate in favour of such persons. Accordingly, the filing of the earlier petition as well as the present petition, appear to be dishonest attempts on the part of the petitioner to make premium out of certain observations made by the civil court in the operative part of its judgment and decree. This court in exercise of powers under Article 226 of the Constitution of India would be loathe to encourage such kind of litigation. In fact, the conduct of the petitioner, in firstly settling the suit with the predecessor in title of the respondents No.5 and 6 in respect of the subject land wherein the sale deed made in favour of Suresh Manilal as well as the mutation entries were subject matter of challenge and withdrawing the suit qua the subject land and thereafter challenging the development permission granted in favour of the respondents No.5 and 6 on the basis of certain ambiguous observations made in the operative part of the judgment and decree of the trial court, cannot be countenanced even for a moment. In the opinion of this court, the petitioner having withdrawn the suit in respect of the subject land cannot place reliance upon any part of the judgment and decree passed by the trial court qua the defendants No.1 to 5 therein in respect of the subject land. The present petition wherein the development permission granted in favour of the respondents No.5 and 6 and the impugned order passed by the respondent No.3 corporation upholding such development permission have been challenged mainly on the basis of the decree of the Civil Court in Civil Suit No.162 of 1989, (as is evident on a plain reading of the memorandum of petition) is thoroughly misconceived. Moreover, as noticed in the earlier part of this judgment, the petitioner has made incorrect and misleading statements as regards the judgment and decree passed by the trial court. The petitioner, therefore, does not deserve to carry a writ of this court.
22. In the light of the aforesaid discussion, the petition being devoid of any merit or substance, therefore, fails and is accordingly dismissed.
( Harsha Devani, J. ) hki Page 24 of 24