Gujarat High Court
Bhupatsinh vs Vadodara on 3 August, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/9157/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9157 of 2011
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BHUPATSINH
PUNJABHAI PADHIAR - Petitioner
Versus
VADODARA
MUNICIPAL CORPORATIONTHROUGH MUNICIPAL COMMISSIONER & 4 -
Respondents
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Appearance :
MR
PRABHAV A MEHTA for Petitioner:
None for Respondents : 1 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 03/08/2011
ORAL
ORDER
Heard learned advocate for the petitioner. The petitioner, under Article 14, 21 & 226 of the Constitution of India has approached this Court seeking appropriate relief mentioned in para-9 of the petition, which read as under:
"(A) Your Lordships may be pleased to issue a writ of mandamus and/or writ in the nature of mandamus and / or any other writ, order or direction to quash and set aside permission (Rajachitthi) dated 20.8.2009 issued by respondent corporation;
(B) Your Lordships may be pleased to issue writ of mandamus and / or writ in the nature of mandamus directing respondent corporation to inquire into the subject matter of the present petition in view of powers conferred under section 258 of the Bombay Provincial Municipal Corporation Act, 1949 within a stipulated period and also to supervise construction work in view of section 257 of the said Act;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay operation and implementation of Rajachitthi dated 20.8.2009 issued by respondent corporation in favour of respondent no.4 and be further pleased to direct respondent nos. 4 and 5 to not to further construct and / r alter construction in land bearing survey no.
488/2, moje gam Gotri; in T.P. No. 61, popularly known as proposed "Shreeji Villa".
Facts in brief leading to filing this petition as narrated by the petitioner deserves to be set out as under.
The petitioner has purchased a part of land in land bearing Survey No. 488/1, namely Plot No. 8 as described in sale deed dated 19/4/1993. As per the said sale deed the petitioner happened to be owner of the plot no.8, after which there are common rights and few plots and open way and another portion of land earmarked is Survey No. 488/2. In other words, the petitioner happened to be in possession of a land situated at the other end of plot no. 488/1 wherein only one plot namely plot no.8 is owned by him as per the sale agreement dated 19/4/1993. The respondent nos. 4 & 5 have alleged to be indulging in activities of illegal construction and their illegality is sought to be narrated by petitioner on page no.3 as part of para-1, which could be set out as under.
(a) The respondent no.4 has fraudulently claimed portion of land bearing survey no. 488/1 while obtaining permission for construction on land bearing survey no. 488/2.
(b) The respondent corporation on complaint so lodged accordingly had issued notice and order of October, 2010 under section 267 of the said Act;
(c) Despite repeated requests and representations respondent nos. 1 to 3 in collusion with respondent no.4, have not issued any further notice of hearing and have not passed any further order either allowing objections of the petitioner and/or rejecting the same to the knowledge of the petitioner and in a convenient fashion respondent no.4 has continued further construction;
(d) Despite specific plans and documents placed by the petitioner, the respondent no.1 have deliberately failed to exercise powers under section 258 of the said Act."
The petitioner, therefore, being aggrieved by the action of respondent nos. 4 & 5 in developing the land situated on survey no. 488/2 sent notice through his advocate to Commissioner, Vadodara Municipal Corporation, and Town Planning Officer on 6/10/2010. It is absolutely essential to record here that respondent nos 4 & 5 as per the say of petitioner himself is given Rajachitthi or permission to develop the land on 20/8/2009. Said Rajachitthi or permission to develop the land is also placed on record. The petitioner has thereafter obtained information which also go to show that the Corporation also issued notice under section 267 of the Act and thereafter petitioner's advocate also issued notices to the Corporation calling upon the Corporation not to permit further construction on any undertaking that may be obtained from the respondents.
Learned advocate for the petitioner has contended that respondent nos. 4 & 5 in the reply produced on page no. 83 indicated that they have a right upon the land in question and in para-4 of page-85 the consideration for the same is also narrated. This right being merely an easementary right could not have been considered for seeking any increase in FSI so as to exempt respondent nos. 4 & 5 from leaving margin required to be left for putting up construction as per the prevalent building regulations. Respondent nos. 4 & 5 were required to leave 7.5 meters land, whereas 6 meters is left, despite the land which is admittedly as per the say of the petitioner's advocate not belonged to respondent nos. 4 & 5 is shown to be part of the property of respondent nos. 4 & 5 so as to include that as an open margin and therefore only 1.5 meter is left by respondent nos. 4 & 5 in developing the land. This being absolutely fraudulent the Corporation was justified in issuing notice, however thereafter Corporation has not pursued it to its logical end and therefore, petitioner is constrained to file this present petition.
Learned advocate for the petitioner has submitted that Section 9 of Civil Procedure Code being not an efficacious remedy the writ petition is preferred. The civil suit in such a situation cannot be called an efficacious remedy and, therefore, present petition is moved under Article 226 of the Constitution of India.
This Court is unable to agree with the submissions made by learned advocate for the petitioner for accepting the petition for the following reasons, namely;
Article 226 of the Constitution of India is essentially an extra ordinary remedy held time & again by various Courts, including the Apex Court. In the instant case petitioner is essentially aggrieved of an act of respondent nos. 4 & 5, redressal whereof is sought to be obtained from the Corporation, but when the Corporation has, as per the say of the petitioner done nothing, this Court is moved under Article 226 of the Constitution. In my view, the petition is misconceived, is required to be rejected as essentially petitioner is to make out his case in respect of the land in question. The petitioner even if once looks at the agreement for sale under which he came in to possession of remotely situated plot no. 8, then he had a right over that property only. Unless & until petitioner establishes his right against respondents. 4 & 5 in the competent civil court, straightway moving the Court for prohibitory relief or prohibitory order against respondent nos. 4 & 5 would amount to calling upon the Corporation to act and assume the role of adjudicator which the Corporation do not have power as per provision of BPMC Act. Article 226 remedy is also not available to the petitioner for adjudicating his right over the land qua respondent nos 4 & 5. In my view, the document i.e. sale document produced at page-23, is unequivocally clear with regard to petitioner's plot qua plot no.8 which is situated far off from plot no. 488/2. The petitioner therefore when confronted with reply issued by respondent nos 4 & 5 to the corporation, wherein they have made specific averment with regard to their indefensible right on payment of consideration to the original land owner where from petitioner also purchased part of plot no. 488/1, purchase of part of survey no. 488/2 could not have been short circuited and based upon this, writ petition could not have been filed.
In my view the petition being bereft of merit deserves rejection and is accordingly rejected. However, no order as to costs.
[ S.R. BRAHMBHATT, J ] \vgn Top