Gujarat High Court
Ashirwad Villa Coop. Housing Service ... vs Deputy Collector on 13 December, 2019
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/4839/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4839 of 2015
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 4839 of 2015
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ASHIRWAD VILLA COOP. HOUSING SERVICE SOCIETY LIMITED
& 1 other(s)
Versus
DEPUTY COLLECTOR & 3 other(s)
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Appearance:
MR S N THAKKAR(901) for the Petitioner(s) No. 1,2
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 13/12/2019
ORAL ORDER
1. This petition is filed by President and Secretary of Ashirwad Villa Cooperative Housing Service Society Limited challenging the show-cause notice dated 25.07.2014 issued by the respondent no.1- Deputy Collector, Surat, whereby respondent no.2 - Shri Manharbhai Muljibhai Kakadia was called upon so as to clarify why land-in-question i.e. Survey No.105, Block No.93 admeasuring about 23,371 sq. meters, situated at Village - Bharthana-Vesu, Taluka -Surat, City - Majura should not be taken by the Government, because the land-in-question is of new tenure land and without having any Page 1 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER non-agricultural permission from the Competent Authority, unauthorized constructions were made on the land-in- question.
2. The brief facts of the case are as under:
2.1 The land in question was owned by the ancestors of:
(1) Shri Manojbhai Kishanbhai Kanthariya, (2) Shri Kishanbhai Chhaganbhai Kanthariya (3) Shri Vallabhbhai Govindbhai Katariya (4) Shri Nanjibhai Mohanbhai Kundariya (5) Shri Sureshbhai Kishanbhai Kanthariya (6) Hamlataben Kishanbhai Kanthariya and Kishanbhai /Manojbhai 2.2 On 24.11.2001, out of the aforesaid six persons, four persons viz. Shri Kishanbhai Chhaganbhai Kanthariya, Shri Manojbhai Kishanbhai Kanthariya, Shri Sureshbhai Kishanbhai Kanthariya and Ms. Hemlataben Kishanbhai Kanthariya, wife of Shri Ajaybhai Mohanbhai, have entered into an Agreement to Sale with respondent no.2-Shri Manharbhai Muljibhai Kakadia to sell the aforesaid land in question at a sale price of Rs.32,28,423/-. Out of the aforesaid sale price, Rs.12,90,000/- was paid as part payment. The remaining amount of Rs.19,38,423/- was to be paid within twelve months from the date of Agreement to Sale.
2.3 The aforesaid persons have also executed "Kabja Rasid"
in favour of Shri Manharbhai Muljibhai Kakadia while handing Page 2 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER over the physical possession of the land in question. Thus, on 24.11.2001, the aforesaid persons have handed over the physical possession of the land in question and have signed and executed an Irrevocable General Power of Attorney in favour Shri Manharbhai Muljibhai Kakadia empowering him to appear in any civil, criminal Courts or any Government or semi Government Authority with regard to any dispute of the land in question.
2.4 Thereafter, on 25.4.2003, an "Agreement for Right to use of the Road" was entered into between Shri Kishanbhai Chhaganbhai, Shri Manojbhai Kishanbhai and Shri Sureshbhai Kishanbhai of one side and Shri Manharbhai Muljibhai Kakadia as an Promoter, Administrator and Power of Attorney Holder on behalf of Ashirwad Villa Coop. Housing Service Society Limited, of the other side stating that on the land in question and other surrounding land, an arrangement for construction of residential houses was made. It is also stated that Block No. 93 of Survey No. 105 was sold by the aforesaid persons and thereafter, Irrevocable General Power of Attorney was also executed by the land owners. Out of 27,226 sq. meters of total area of land, 1,700 sq. meters of land were retained by the original land owners and remaining parcel of land was sold by the original land owners. The 1,700 sq. Page 3 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER meters of land was earmarked and compound wall was also constructed. The original land owners were entitled to develop, construct and sell the aforesaid 1,700 sq. meters of land. For ingress into and egress from these 1,700 sq. meters of land, a 25 Ft. road and the western side, a 20 Ft. road opposite to Plot Nos.86 to 92 was earmarked in the layout plan of the Society to be used by original land owners. 2.5 Accordingly, Surat Urban Development Authority (SUDA) had given permission to develop and construct low cost residential houses on the land of Block No.93 196/Paiki, 197, 198, 238 etc. on the terms and conditions mentioned in the Development Permission dated 21.7.2000. A Raja Chithi dated 6.12.2003 was also given by Surat Municipal Corporation for construction on Final Plot Nos.92, 93, 94 etc. on terms and conditions mentioned therein.
2.6 Subsequently on 23.4.2007, the District Collector passed an order stating that the land bearing Survey No. 105, Block No.93 and Block No. 197 is of new tenure land. Therefore, before using the said land for Non Agricultural purpose, a premium is required to be paid. However, the construction was started on the said land without payment of any premium which is in contravention of Section 43 of the Bombay Page 4 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER Tenancy and Agricultural Lands Act as well as in contravention of the provisions of Section 65 of the Bombay Land Revenue Code. On Block No. 93 and Block No. 197 which is a new tenure land, a planning has been made for construction of 435 residential houses in the name of Ashirwad Villa Coop. Housing Service Society Limited in contravention of provisions of Section 65 of the Bombay Land Revenue Code. Therefore, the construction activity which was going on in the aforesaid land is ordered to be stayed with immediate effect till further orders and the original land owners mentioned in the said Order were restrained from transferring, assigning, alienating, selling or gifting in any manner in favour of any other person. Despite the aforesaid injunction order if somebody continues with the construction activity, the same shall be demolished without any payment of compensation.
2.7 It is further submitted that before the District Collector, Surat passed the aforesaid order, the construction work of most of the residential units was already over, possessions of the individual houses were handed over and individual members have started residing in their own residential houses. The Sale Deed to that effect were also made in favour of each individual member by the original land owners. Thus, Page 5 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER majority of the members of the Petitioner Society are residing in their individual residential houses since more than 12 years.
2.8 In the meantime, a dispute arose between the original land owners of 1,700 sq. meters of land as well as the members of Ashirwad Villa Cooperative Housing Service Society Limited with regard to entry and use of common road, common facility etc. of the Petitioner Society and, therefore, the Petitioner Society and some of its members have filed a Civil Suit on 20.4.2006 in the Court of Principal Senior Civil Judge, Surat being Regular Civil Suit No.208 of 2006, inter alia, praying for declaration and permanent injunction. The aforesaid Civil Suit is still pending in the Civil Court at Surat. In the said Civil Suit, an Injunction Application was also preferred by the Plaintiff Society wherein the Civil Court, after hearing, had passed an order dated 4.8.2008 in favour of the Petitioner/Plaintiff Society restraining the Defendants i.e. Shri Kishanbhai Chhaganbhai Kanthariya, Shri Manojbhai Kishanbhai Kanthariya, Shri Sureshbhai Kishanbhai Kanthariya and Shri Dineshchandra Chandulal Patel from using the road of the Society as access to their own plot till final disposal of the said Civil Suit and also directed the Defendants to maintain status quo in respect of the compound Page 6 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER wall between Society and owners of land admeasuring 1,700 sq. meters till the final disposal of the said Suit.
3. In view of the aforesaid facts, it appears that the petitioners are bona fide purchasers of the land-in-question. Considering the nature of dispute raised in this petition for regularization of the unauthorized construction made by the petitioners without taking permission for converting new tenure land to old tenure land and thereafter, converting land into non-agriculture land as well as application for regularization of construction under the provisions of Gujarat Regularisation of Unauthorised Development Act, 2011 (for short 'GRUDA'), the Co-ordinate Bench of this Court (Coram:
Hon'ble Mr. Justice A.J. Shastri) by order dated 08.02.2018, has passed the following order:
"[1] The present petition is mentioned today for the limited purpose of seeking directions with concurrence of all the learned advocates, who are present before the Court.
[2] In view of the assertion made in paragraph No.24 reflecting on page 1127, Mr.Y.N.Oza, learned senior counsel has submitted that 375 applicants and later on some other plot holders also have submitted applications for seeking regularization under the provisions of Gujarat Regularisation of Unauthorised Development Act, 2011 and since then the same are pending, not decided yet. As a result of this, without prejudice to the rights and contentions of both the sides and subject to the outcome of present writ petition, these applications may be permitted to be decided by respondent No.4.Page 7 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER
[3] Mr.Dhaval G.Nanavati, learned advocate appearing for the authority i.e. respondent No.4 is not disputing this fact that applications are yet pending. Considering this situation, without expressing any opinion on merits or demerits of such applications, the same are directed to be decided on or before 31st March 2018 and the said decision to be placed on record of the present petition.
[4] It is made clear that this interim direction is ad invitum and without prejudice to the rights and contentions of both the sides. This Court has not expressed any opinion with regard to merits. It would be open to the respondent authority to take an independent decision on merits in accordance with law.
[5] Stand over to 03.04.2018. Ad-interim relief granted earlier to continue till then."
4. Learned advocate, Mr. Dhaval Nanavati for respondent no.4 stated that the respondent no. 4 - Surat Municipal Corporation has granted applications made by the petitioners under the provisions of the GRUDA.
5. Learned advocate Mr. S.N. Thakkar for the petitioners has also made a statement that the petitioners have paid impact fees with the respondent no.4 for regularization of the unauthorized construction.
6. Learned Senior Advocate, Mr. Yatin Oza appearing with learned advocate Mr. S.N. Thakkar for the petitioners states that the petitioners are ready and willing to pay premium which may be fixed by the respondent no.1 for regularization of conversion of units of land, for which the petitioners and its Page 8 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019 C/SCA/4839/2015 ORDER members are bona fide purchasers.
7. In view of the aforesaid fact situation, this Court is of the prima facie opinion that the petitioners are bona fide purchasers of the respective units of the land-in-question and therefore, in the interest of justice, respondent no.1 is hereby directed to calculate the premium, payable by the petitioners, without prejudice to all right and contentions of the respondents in the matter which are kept open and place the report of premium, payable by the petitioners, on or before 20th December, 2019.
8. Stand over to 23rd December, 2019 on top of the board.
9. Copy of this order be given to learned Assistant Government Pleader, Ms. Shruti Pathak for onward communication and further action.
10. Direct service is permitted today.
(BHARGAV D. KARIA, J) NEHA Page 9 of 9 Downloaded on : Sat Dec 14 10:39:49 IST 2019