Gujarat High Court
Chandrakalaben Mansukhlal Popat vs Jamnagar Urban Development Authority & ... on 25 April, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/MCA/759/2014 CAV JUDGMENT
MCA7592014Cj1.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 759 of 2014
In
CIVIL APPLICATION NO. 1108 of 2014
In
WRIT PETITION (PIL) NO. 347 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment?
2 To be referred to the Reporter or not? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the constitution of
India, 1950 or any order made there under?
5 Whether it is to be circulated to the civil judge ? No
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CHANDRAKALABEN MANSUKHLAL POPAT
Versus
JAMNAGAR URBAN DEVELOPMENT AUTHORITY & ORS.
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Appearance:
MR NIRAD D BUCH, ADVOCATE for the Applicant.
MR AR THACKER, ADVOCATE for the Opponent No. 1
MR JAYANT P BHATT, ADVOCATE for the Opponent No. 2
MR VIJAY H NANGESH, ADVOCATE for the Opponent No. 3
MR KISHOR M PAUL, ADVOCATE for the Opponent No. 4
MS VIDITA D JAYSWAL, ADVOCATE for the Opponent No. 5
Page 1 of 14
C/MCA/759/2014 CAV JUDGMENT
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CORAM: HONOURABLE THE CHIEF
JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/04/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By this application for Review, a third-party to the Public Interest Litigation has prayed for review of our order dated 4th February 2014 passed in Civil Application No. 1108 of 2014 by which we dismissed the application filed by the present applicant for passing appropriate direction upon a respondent of the main Public Interest Litigation for refund of money allegedly paid by the applicant to the said respondent, with interest.
2. In the Public Interest Litigation, out of which the present application arises, the grievance of the writ-petitioner was that a Co- operative Society, the respondent No.3 therein, entered into a development agreement with the respondent No.4, the Builder, by which it was agreed that the respondent No.4 would construct 26 shops of around 125 to 150 sq. ft. on the common plot of the Society facing the main road and that the respondent No.3 has neither obtained any permission to enter into such an agreement nor has the respondent No.4 obtained any permission to put up construction of 26 Page 2 of 14 C/MCA/759/2014 CAV JUDGMENT shops on the common plot of the Society. The further grievance of the petitioner was that the Jamnagar Urban Development Authority although initiated some proceedings in the year 2012 for demolition of the shops by issuing notice under the provisions of the Gujarat Town Planning & Urban Development Act, 1976, thereafter, it failed to act in accordance with law.
3. On 30th January 2014, we concluded the hearing of the Public Interest Litigation and directed that till the delivery of the judgment, there should be an order of status quo as regards the disputed structure.
4. After the conclusion of the hearing but before the delivery of the judgment of the main matter, the present applicant, a third-party to the PIL proceedings, on 3rd February 2014, filed an application describing the same as one "for direction" thereby praying for a direction upon the respondents No.3 and 4 of the Public Interest Litigation to refund the amount of Rs.4 lakh with interest to the applicant from the date of payment till the refund, after joining her as party to the main Public Interest Litigation No. 347 of 2013.
5. On 4th February 2014, we, however, instead of adding the applicant as party-respondent in the Public Interest Litigation, the hearing of which had already been concluded, dismissed the said application by holding that the claim of a third-party to the said PIL Page 3 of 14 C/MCA/759/2014 CAV JUDGMENT could not be adjudicated and such question should be decided before appropriate forum, if the applicant approaches such forum. We, however, made it clear that we had not gone into the question whether there was really any valid agreement for purchase of the two shops between the applicant and the developer or whether there had been actual payment or not.
6. By this application for Review, the said third-party has prayed for the selfsame relief claimed in the earlier application for direction.
7. Mr. Buch, the learned advocate appearing on behalf of the applicant, has strenuously contended before us that the Supreme Court, in the case of Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation and others reported in AIR 2013 SC 927, in a case of similar nature of proceedings for demolition of unauthorized construction, passed among other directions, a direction that the respondent No.7 therein should pay the price of the flat to the purchasers with interest at 18% per annum from the date of payment. By relying upon the aforesaid observations, Mr. Buch contended that his client also bonafide approached the Developer for getting tenancy right over two shops-rooms and paid an advance of Rs. 4 lakh, and thus, such amount should be ordered to be refunded.
8. After hearing Mr. Buch, the learned advocate appearing on behalf of the applicant, and after going through the material on Page 4 of 14 C/MCA/759/2014 CAV JUDGMENT record, we find that indisputably, there was unauthorized construction and, at the same time, the construction of the shop rooms on the common plot of the Society was also violative of the provisions of law. In such circumstances, we, by our order dated 3rd March 2014, passed in WP PIL No. 347 of 2013, disposed of the PIL by directing the respondent No.1, the Jamnagar Area Development Authority, to proceed ahead immediately with the implementation and execution of the notice dated 6th March 2013 issued under the provisions of the Gujarat Town Planning and Urban Development Act, 1976, for demolition of the unauthorized construction of the 26 shops built on the common plot of the Society. As before passing of the final judgment in the PIL we had already disposed of the application of the present applicant, we did not take into consideration the prayer of the petitioner for refund of money which was filed after conclusion of the hearing of the PIL.
9. In our opinion, in a Public Interest Litigation under Article 226 of the Constitution of India, where the grievance of the writ-petitioner was the inaction on the part of the respondent No.1 in not taking steps for demolition of unauthorized construction, the question of adjudication of the dispute as to whether the money allegedly paid by the present applicant to the Developer or the society for acquiring tenancy right in the unauthorized premises should be refunded or not, cannot be a subject-matter. The cause of action of a writ- application under Article 226 of the Constitution of India, it is well Page 5 of 14 C/MCA/759/2014 CAV JUDGMENT settled, arises when there is any illegal action or inaction on the part of a 'State' within Article 12 of the Constitution whereby any legal or fundamental right of a citizen is affected. The present applicant wanted that in such a writ-petition, we should also decide the question whether money has been taken from the present applicant by the private parties for the purpose of construction of the shop rooms for giving tenancy rights, inasmuch as those shops were going to be demolished and should pass a direction for refund of money.
10. We are of the view that the dispute raised by the applicant is in the nature of a 'private dispute' between the Developer and the society on one hand and the applicant on the other and the appropriate remedy of the applicant lies in approaching the appropriate forum prescribed under the law for recovery of the amount. In this PIL, we cannot proceed to decide a dispute as to whether the money was at all paid by the present applicant and whether the applicant should be entitled to recovery of the same with interest. Thus, the applicant has really invited us to decide a dispute which is to be decided by the forum fixed for deciding the dispute between the society and a third party for recovery of money and the application does not involve any question whether there was any illegal action or inaction of a 'State' within Article 12 of the Constitution in the matter of paying/accepting such money. The entire grievance is a 'private dispute' against the Society and the Developer.
Page 6 of 14 C/MCA/759/2014 CAV JUDGMENT
11. We now propose to deal with the judgment cited by Mr. Buch, the learned advocate for the applicant.
12. In the case of Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation and others (supra), the Supreme Court was hearing an appeal preferred against the order of the Division Bench which set aside the order of the learned Single Judge and remanded the matter back to the Municipal Authority with the following observations:
""Having heard the learned Counsel appearing for the parties and considering the facts and circumstances of the case, We are of the view that the competent authority of the Kolkata Municipal Corporation should take appropriate decision under the provisions of the Kolkata Municipal Corporation Act and Building Rules framed thereunder while dealing with the allegations of unauthorized construction in respect of any building. In the present case, specific allegation has been made to the effect, that two floors of the building in question were constructed even in absence of sanctioned building plan.
In the aforesaid circumstances, the competent authority of the Kolkata Municipal Corporation must take appropriate decision in respect of the building in question upon complying Page 7 of 14 C/MCA/759/2014 CAV JUDGMENT with the provisions of the Kolkata Municipal Corporation Act and the Building Rules framed thereunder.
The Court cannot usurp the authority of the Kolkata Municipal Corporation in this regard. The validity and/or legality of the decision of the Kolkata Municipal Corporation authorities regarding demolition and/or retention of any unauthorized structure can be challenged before this Court but this Court under normal circumstances should not dictate the Kolkata Municipal Corporation authorities to take any specific decision regarding demolition or retention of any structure without allowing the competent authority to take appropriate decision in this regard.
The Kolkata Municipal Corporation authorities should take appropriate decision in respect of the fate of an illegal structure at the first instance and the Court will thereafter adjudicate the correctness of such decision. The Court under normal circumstances should not either direct retention of any illegal structure or demolition of the same before allowing the competent authority of the concerned Kolkata Municipal Corporation to take appropriate decision in accordance with law.
For the aforementioned reasons, we direct the competent authority of Kolkata Municipal Corporation to consider the nature and magnitude of the unauthorised construction at the premises in question and take specific decision regarding Page 8 of 14 C/MCA/759/2014 CAV JUDGMENT retention or demolition of the same or any part thereof.
Needless to mention that the competent authority of the Kolkata Municipal Corporation will take appropriate decision strictly in accordance with law and upon observing the principles of natural justice without any further delay but positively within a period of two months from date."
12.1 The Supreme Court while setting aside the said order of the Division Bench observed as follows:
"26. In our view, respondent No.7 cannot take benefit of Rule 25 because the disputed construction was in clear violation of the sanctioned plan and the notices issued by the competent authority of the Corporation and also because the application was made after completion of the construction.
27. Before parting with the case, we consider it necessary to observe that respondent No.7 is guilty not only of violating the sanctioned plan and the relevant provisions of the 1980 Act and the Rules framed there under but also of cheating those who purchased portions of unauthorized construction under a bona fide belief that respondent No.7 had constructed the building as per the sanctioned plan. With the demolition of unauthorized construction some of such persons will become shelterless. It is, therefore, necessary that respondent No.7 is directed to Page 9 of 14 C/MCA/759/2014 CAV JUDGMENT compensate them by refunding the cost of the flat, etc., with interest. Respondent No.7 must also pay for raising construction in violation of the sanctioned plan. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorized construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the concerned public authorities not only to demolish such construction but also impose adequate penalty on the wrongdoer.
28. In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by respondent No.7 is pulled down without delay, we issue the following directions:
1. Within three months from today, respondent No.7 shall pay the price of the flats etc. to the purchasers with interest @ 18% per annum from the date of payment.
2. The occupiers of illegal/unauthorized construction shall Page 10 of 14 C/MCA/759/2014 CAV JUDGMENT vacate such portions of the building within next one month.
3. Within next one month, the Corporation shall demolish unauthorized construction after taking adequate precautionary measures.
4. Respondent No.7 shall pay cost of Rs.25,00,000/- for brazen violation of the sanctioned plan and continuance of illegal construction despite 'stop work notice'. The amount of cost shall be deposited with the Kolkata State Legal Service Authority within three months and the same be utilized for providing legal aid in deserving cases."
(Emphasis supplied by us).
13. In our opinion, the direction contained in paragraph 1 above, emphasized by us, cannot be said to be a law laid down by the Supreme Court within the meaning of Article 141 of the Constitution of India. In the said case, having regard to the fact that the occupants of the building being a bona fide purchasers and would become shelterless for the cheating done by the developer, in exercise of power under Article 142 of the Constitution of India the Supreme Court passed such direction. In the said decision, no law was laid down by the Supreme Court that whenever any building would be demolished for non-compliance of the sanctioned plan, the purchaser should be deemed to be bona fide purchaser and that a purchaser Page 11 of 14 C/MCA/759/2014 CAV JUDGMENT has no duty to enquire from the Municipality as to whether the building or the portion thereof which he proposes to purchase is constructed by his vendor after complying with the sanctioned plan. Thus, the above direction given by the Supreme Court cannot be said to be a law laid down by the Supreme Court.
14. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Indian Bank v. ABS Marine Products Pvt. Ltd. reported in AIR 2006 SC 1899 while distinguishing a precedent from mere directions:
"One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should, therefore, be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Art. 142. One solution to Page 12 of 14 C/MCA/759/2014 CAV JUDGMENT avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Art. 142. Be that as it may."
15. In the case before us, the applicant wanted to enter into an agreement for acquiring the right of enjoyment in two shop-rooms for business purpose and has not even got possession. What was the concluded agreement between the parties was also not placed before us. Even we do not know whether the receipts produced by the applicant are genuine or not. Thus, after the hearing was concluded and the matter was kept under CAV, such plea could not be entertained. In case of admitted payment of money and after holding that the applicant made the payment on the fraud of the builder, there could be direction for refund. This type of factual dispute can be decided only after taking evidence and cannot be adjudicated by way of affidavit.
16. On consideration of the entire materials on record, we, thus, find that there is no error, not to speak of any error apparent on the face of the records, justifying review of our order dated 4 th February 2014. The application is, thus, dismissed. No order as to costs.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
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