Gujarat High Court
Jayaben R Patel vs Ahmedabad Urban Development Authority on 18 February, 2025
NEUTRAL CITATION
C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5013 of 2008
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2010
In R/SPECIAL CIVIL APPLICATION NO. 5013 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
YES
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JAYABEN R PATEL & ANR.
Versus
AHMEDABAD URBAN DEVELOPMENT AUTHORITY & ORS.
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Appearance:
MR AS VAKIL(962) for the Petitioner(s) No. 1,2
DELETED for the Respondent(s) No. 6,6.1,6.2,6.3
DS AFF.NOT FILED (N) for the Respondent(s) No. 5
MR ROHAN RAVAL, AGP for the Respondent(s) No. 3
M/S RJ RAWAL ASSOC.(1987) for the Respondent(s) No. 7
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 18/02/2025
ORAL JUDGMENT
1. Rule. Learned advocate Mr. Dhaval Nanavati waives service of notice of rule on behalf of respondent Nos. 1 and 2 Learned Assistant Government Pleader Mr. Rohan Raval waives Page 1 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined service of notice of rule on behalf of respondent No. 3 - State.
2. This petition is filed seeking following reliefs: -
"(A) to quash and set aside the communication dated 13.02.2008 (copy at Annexure-P) issued by Respondent No. 4 - Collector and be further pleased to grant the Petitioner's application dated 19.08.2007 (copy at Annexure-H) (B) to quash and set aside the communication dated 25.02.2008 (copy at Annexure-Q) issued by the Respondent No. 1 - AUDA and be further pleased to restore the development permission dated 03.04.2006 issued by the Respondent No. 1 - AUDA (BB) to quash and set aside the order dated 30.06.2009 (copy at Annexure-1) issued by the Respondent and be further pleased to grant the Petitioner's application dated 25.02.2008 (copy at Annexure-17) (C) to stay, pending the hearing and final disposal of the present Special Civil Application, the operation implementation and execution of the impugned communications dated 13.02.2008 and 25.02.2008 and thereby permit the present petitioner to use the building constructed upon the lands in question.
(D) to direct, pending the hearing and final disposal of the present Special Civil Application, the Respondent NO. 3 - Secretary Revenue Department to process and decide the Petitioner's application dated February, 2008 (Annexure-O) (DD) to stay/restrain, pending the hearing and final disposal of the present Special Civil Page 2 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined Application, Respondent from acting in any manner whatsoever under the order dated 30.06.2009 and from transferring, alienating, encumbering or dealing with in any manner whatsoever the lands forming subject matter of the Petitioner's application dated Nil/02/2008"
3. Thus, this petition is filed challenging (i) the communication dated 13.02.2008 (Annexure-P page 90), whereby development permission sought by the petitioners was rejected. (ii) the order dated 25.02.2008 (Annexure-Q page 91), whereby earlier development permission granted by the authority was canceled; and (iii) the order dated 30.06.2009 (Annexure-M Page No.34) passed by respondent no.3- State, whereby the petitioner No-1's application for purchase of 91 sq.mtrs of land was rejected.
4. The brief facts referred in the petition are as under: -
The land bearing Old Survey No. 334/1 of village Vejalpur admeasuring 708 sq. meters was originally owned by one Kumudben. On an application made by the erstwhile owner (Kumudben), an order dated 07.01.1963 was passed by respondent No. 4 - Collector for converting the land from agricultural to non-agricultural use. After the order of non- agricultural use dated 07.01.1963, the competent authority under Urban Land (Ceiling and Regulation) Act, 1976 (for short Page 3 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 'the ULC, Act') by an order dated 16.10.1984 declared 314 sq. meters of land out of total 708 sq. meters of land, as excess vacant land and thus the remaining 394 sq. meters (708 sq. meters - 314 sq. meters = 394 sq. meters) was held to be retainable by original land owner - Kumudben. The original land owners - Kumudben thereafter executed sale deed dated 08.11.2004 (Page No. 23 to 37), in favour of petitioner No. 1
- Jayaben for land admeasuring 394 sq. meters and thus petitioner No. 1 became owner of land admeasuring 394 sq. meters. Thus, ownership of petitioner No. 1 for the land admeasuring 394 sq. meters is not in dispute. Subsequent thereto in September, 2004 the Town planning Scheme No. 5 came for implementation. Pursuant to the said Town Planning Scheme the land admeasuring 708 sq. meters (original) of Survey No. 334/1 of Village Vejalpur came in the ambit of Village Jodhpur and was given new Survey Number 239/1 bearing Final Plot No. 164 admeasuring 545 sq. meters. Since, in the Old Survey No. 334/1 admeasuring 708 sq.mtrs. ; 394 sq.mtrs. was retainable land by original owner, upon finalization of T.P. Scheme No.5, 545 sq.mtrs. of land became 303 sq.mtrs. of retainable land and balance 242sq.mtrs. of land became excess land.
4.1 The petitioner No. 1 upon finalization of Town Planning Scheme No.5 made an application (Page No. 38 and 39) on Page 4 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 13.06.2005 seeking development permission to Respondent No. 1 - Ahmedabad Urban Development Authority (AUDA) under Section 29 of the Gujarat Town Planning and Urban Development Act, 1976. It was case of the petitioner that since 394 sq. meters of land was retainable, she made an application for development permission in respect of 394 sq. meters for commercial use. On the application made, respondent No. 1 granted development permission on 03.04.2006 (Page No. 40 to
42) for commercial use in respect of 394 sq. meters of land.
Thereafter petitioner No. 1 entered into development agreement (Page No. 43 to 55) with one Shri Shyam Builders and accordingly development was carried out as per development permission on 394 sq. meters. Third party rights had been created by way of Agreement to Sale dated 05.07.2007 (Page No. 56 to 71) by petitioner No. 1 in favour of respondent No. 5 i.e. Benefit Informedia Private Limited for 394 sq. meters including the building named Star Avenue. One more application dated 19.08.2007 was filed by petitioner No. 1 to respondent No. 4 - Collector under Section 65 of the Gujarat Land Revenue Code, 1879 for N.A. permission for change of use from residential use to commercial use. By letter dated 12.09.2007, respondent No. 4 - Collector sought opinion of respondent No. 3 - Deputy Collector, ULC for the purpose of grant of N.A. permission. Respondent No. 3 - Deputy Collector, ULC replied vide letter dated 21.09.2007 to Page 5 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined respondent No. 4 - Collector stating reasons as to why N.A. permission for commercial use cannot be given to petitioner No. 1. One more letter dated 21.09.2007 was addressed from respondent No. 3 to respondent No. 2 - Town Planning Officer (Page No. 81 and 82). Thereafter, by letter dated 01.10.2007 (Page No. 83) respondent No. 1 - AUDA informed the petitioner No. 1 that N.A. permission dated 07.01.1963 was for residential use and unless and until petitioner No. 1 applies and obtain N.A. permission for commercial use, B.U. permission cannot be granted. Accordingly, a letter dated 08.01.2008 (Page No. 84 and 85) was addressed by respondent No. 1 - AUDA to respondent No. 3 informing that the development permission dated 03.04.2006 was granted and accordingly the construction was completed and B.U permission will be granted to the petitioner No. 1 on producing necessary N. A. permission for commercial use. One more letter dated 23.01.2008 (Page No. 86 and 87) of respondent No. 3 to respondent No. 1 was addressed stating that the development permission dated 03.04.2006 was not proper and also called for certain information. One more letter in the year February, 2008 was addressed by petitioner No. 1 to Secretary, Revenue Department offering to buy the balance 91 sq. meters forming part of the excess vacant land at the market price from the State Government. Pursuant to the earlier orders and opinion of respondent No. 3, an order dated 13.02.2008 (Page No. 90) Page 6 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined was passed by respondent No. 4 dismissing the application of the petitioner seeking non-agricultural purpose for commercial use. Consequent thereto, an order dated 25.02.2008 (Page No.
91) was passed by respondent No. 1 canceling the development permission dated 03.04.2006 (Page No. 38 and 39) permanently restraining petitioner No. 1 from using the constructed property.
4.2 Aggrieved by the orders dated 13.02.2008 and 25.02.2008, respondent No. 5 filed Special Civil Application No. 4062 of 2008 wherein petitioner No. 1 herein was joined as respondent No. 4. In Special Civil Application No. 4062 of 2008 (filed by respondent No. 5) this Court by order dated 17.03.2008 by way of interim relief directed respondent No. 5 to deposit sum of Rs.10,92,000/- (being market value of 91 sq. meters) and further directed respondent No. 1 to permit respondent No. 5 to use the building on the land admeasuring 394 sq. meters subject to the conditions stated in the order at Paragraph No. 8. Therefore, from 17.03.2008, petitioner No. 1 and respondent No. 5 have been permitted to use the entire 394 sq. meters of land and the premises for commercial use. Thus, it is case of the petitioners that since the property was constructed by petitioner based on the development permission dated 03.04.2006 for commercial use in respect of 394 sq. meters, petitioner is using the said property since March, 2008.
Page 7 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 4.3 It is case of the petitioners that subsequent to the order dated 17.03.2008 in Special Civil Application No. 4082 of 2008, present petition is filed by petitioner No. 1 to quash the letter dated 13.02.2008 of respondent No. 4 - Collector and for grant of application filed by petitioner No. 1 dated 19.08.2007 seeking N.A. permission for commercial use. In the present petition prayer is also to quash the letter dated 25.02.2008 of respondent No. 1.
5. Heard learned advocate Mr. A. S. Vakil for the petitioners and learned advocate Mr. Dhaval Nanavati for respondent Nos. 1 and 2 and learned Assistant Government Pleader Mr. Rohan Raval for respondent - State.
6. Learned advocate Mr. A. S. Vakil for the petitioners submitted that in this petition (Special Civil Application No. 5013 of 2008) this Court by order dated 24.03.2008 while issuing Rule, directed to hear the matter along with Special Civil Application No. 4062 of 2008. Accordingly, common interim order dated 31.03.2008 was passed (in both Special Civil Application No. 4062 of 2008 and Special Civil Application No. 5013 of 2008) by which the letters dated 13.02.2008 of respondent No. 4 and letter dated 25.02.2008 of respondent No. 1 are stayed. Further, a detailed common Page 8 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined interim order dated 15.04.2008 was passed in Special Civil Application No. 5013 of 2008 with Special Civil Application No. 4062 of 2008, after recording the entire facts, commercial use was permitted for the building constructed on land admeasuring 394 sq. meters in Final Plot No. 164 in Town Planning Scheme No. 5. Further, an amount of Rs.10,92,000/- was directed to be deposited by the petitioner and further directed to be invested in the fixed deposit. Accordingly, the amount was deposited. The operative part of order reads as under: -
"(C) The amount of Rs.10,92,000/- deposited by the petitioner with the Registry shall be invested in a fixed deposit under cumulative interest scheme with State Bank of India, Gujarat High Court Complex Branch, Ahmedabad for a period of one year in the first instance and appropriate instructions shall be given to the Bank to continue to renew the fixed deposit until further orders."
6.1 Therefore, the construction carried out on 394 sq. meters of land and its commercial use is not in dispute and continued till date. Thereafter, one Civil Application No. 10018 of 2008 was filed by respondent No. 5 in Special Civil Application No. 4062 of 2008. Accordingly, by order dated 27.08.2008, respondent No. 5 was permitted to withdraw Special Civil Application No. 4062 of 2008 and the relief granted vide earlier under order dated 15.04.2008 was directed to be Page 9 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined continued so far as Special Civil Application No. 5013 of 2008 (present petition) and thus from 27.08.2008 petitioner No. 1 continued to be in use and occupation of the building. Thereafter, petitioner No. 1 entered into agreement to sale with petitioner No. 2 - M/s Rathi Hospital in respect of 394 sq. meters including building known as Star Avenue. Respondent No. 3 preferred Special Leave Petition (Civil) No. 5998 and 5999 of 2009 challenging the interim directions dated 15.04.2008 and the same was dismissed with the observation that 'what is challenged is only an interim order which makes just and practical provision till the matter is finally heard. We do not consider this as a fit case for interference"
6.2 The petitioner during all these proceedings also preferred Civil Application No. 6519 of 2009 to purchase 91 sq. meters of land and this Court under order dated 25.06.2009 directed the respondent to take appropriate action. Thereafter, an order dated 30.06.2009 was passed rejecting the application of the petitioner for purchase of 91 sq. meters of land. The Civil Application No. 6519 of 2009 was accordingly disposed of in view of order dated 30.06.2009. Under order dated 01.07.2009 in Special Civil Application No. 6519 of 2009 this Court permitted the petitioner herein to challenge the order dated 30.06.2009 and accordingly a Civil Application (for amendment) No. 9236 of 2009 was preferred and the same was Page 10 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined allowed.
6.3 One more Civil Application No. 7548 of 2010 was filed by petitioner No. 2 to implead them as party and the same was also allowed. In the pending petition, petitioner No. 2 made a prayer seeking commercial use of building Star Avenue situated on the parcel of land admeasuring 394 sq. meters. This Court in Civil Application No. 10449 of 2010 (filed by petitioner No. 2) passed an order dated 29.10.2010 for using the same for hospital purpose. A registered sale deed dated 04.12.2010 was also executed in favour of petitioner No. 2 and therefore at present petitioner No. 2 is the owner of the subject land and using the same for commercial purposes. Once more Civil Application No. 2 of 2023 in Special Civil Application No. 5013 of 2008 was filed to transpose petitioner No. 2 herein and original respondent No. 6 in Special Civil Application No. 5013 of 2008 and accordingly the same was allowed vide order dated 17.10.2023 therefore, petitioner No. 2 is now the owner of 394 sq. meters of land and the construction thereof. Learned advocate therefore submitted that 3 prayers may be considered as final reliefs as referred in Paragraph 7A, 7B and 7BB.
6.4 In relation to Prayer 7BB prayer to quash and set aside order dated 30.06.2009, learned advocate for the petitioner Page 11 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined submitted as under: -
Learned advocate submitted that the order dated 30.06.2009 whereby petitioner No. 1's application of February, 2008 to purchase 91 sq. meters of balance land is rejected ,is not sustainable in law because after the authority under the ULC Act declared 394 sq. meters as retainable land (out of 708 sq. meters) ,the original owner sold the land (394 sq. meters) by way of registered sale deed dated 08.11.2004 to petitioner No. 1 - Jayaben. Thereafter, in view of finalization of Town Planning Scheme No. 5 the retainable land (394 sq. meters) was reduced to 303 sq. meters after deduction. However, it cannot be ignored that petitioner No. 1 purchased the land in question prior to finalization of Town Planning Scheme and therefore she is the owner of 394 sq. meters. The development permission therefore was applied on 13.06.2005 for 394 sq. meters and the same was granted by the authority on 03.04.2006 and thus the construction was done as per development permission dated 03.04.2006. Further, the communication dated 13.02.2008 of respondent No. 4 -
Collector and the consequential letter dated 25.02.2008 of respondent No. 1 - AUDA canceling the development permission was admittedly after entire development was completed in accordance with development permission. Moreover, initially original respondent No. 5 and thereafter the petitioner No. 2 were permitted by this Court by way of interim orders dated 15.04.2008 for possession and commercial use of the land and building in question. One more aspect that sale deed dated 04.12.2010 of petitioner No. 2 was also for Page 12 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 394 sq. meters and the said sale deed was never under challenge by the State Authorities. Therefore, petitioner No. 1 and petitioner No. 2 are owners of 394 sq. meters of land and the construction thereof.
6.5 Moreover sum of Rs. 10,92,000/- was deposited before this Court since March/April, 2008 towards purchase of 91 sq. meters of land as directed by this Court in order dated 15.04.2008 . If that amount deposited before this Court with accrued interest is paid to the State no prejudice would be caused to the State because at the relevant time market rate was considered for depositing the said amount. Accordingly, the sale deed dated 04.12.2010 of petitioner No. 2 would become final and petitioner No. 2 will become the owner of 394 sq. meters.
6.6 In relation to prayer 7A, prayer to quash and set-aside the order dated 13.02.2008, learned advocate for the petitioner submitted as under: -
The Communication dated 13.02.2008 issued by respondent No. 4 - Collector is bad in law because undisputedly respondent No. 4 in the letter dated 13.02.2008 refused to grant N. A. permission only on the ground that there is no clarity with regard to how much portion of land belongs to State Government land how much portion belongs to petitioner No. 1. However, evidently upon finalization of T.P.Scheme No.5, 394 sq.mtrs. of land is reduced to 303. Sq. mtrs and excess land was reduced from 314 sq.mtrs. reduced to 242 sq.mtrs; balance 91 sq.mtrs being permitted to be Page 13 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined owned by petitioner ,respondent no.-4-Collector may be directed to grant application of the petitioner dated 19.08.2007 and thereby grant NA permission for change of use from residential to commercial for 394 sq.mtrs. of land.
6.7 In relation to Prayer 7B, to quash and set aside order dated 25.02.20008, and further to restore development permission dated 03.-4.2008, learned advocate for the petitioner submitted as under: -
If the communication dated 25.02.2008 as referred in Prayer 7BB is considered and the development permission dated 03.04.2006 issued earlier by respondent No. 1 is accepted, then the grievance of the petitioner would not survive. Learned advocate therefore submitted that present petition deserves consideration and the same may be allowed by quashing and setting aside the orders as referred in the prayer clause.
7. On the other hand, Learned Assistant Government Pleader Mr. Rohan Raval for respondent - State submitted as under:
7.1 In this case F-form is of joint ownership of the petitioner as well as the Government, until and unless the separation in the said F-form is done, the answering respondent has not been able to convert the said land for non-agricultural use.Page 14 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025
NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 7.2 Further, after holding the possession of the said land in favor of the state Government admeasuring 314 Sq. meter of plot no. 164; 242 Sq. meter of land, belongs to the State Government in the said final plot and the State Government has forwarded letter dt. 02.04.2008 to Ahmedabad Urban Development Authority to do the needful. Thus, there is no inaction on part of the State Government.
7.3 The application made by the petitioner for conversion of land into non-Agricultural land could not be considered because the portion of land is of State Government, which is yet to be separated in the F-forms.
7.4 It may be considered that until and unless the F-form gets separated and the rights of the petitioner as well as Government on the land in question get clarified, it is difficult for the answering respondent to convert the land for non- agricultural purpose.
7.5 It is also submitted that original owner was allotted land admeasuring 303 sq. mts instead, the original owner executed sale deed for land admeasuring 394 sq. mts. Therefore, execution of sale deed by original owner in favour of petitioner being erroneous, no permission as sought for was granted. Thus, construction on 91 sq.mtrs land is unauthorised.
Page 15 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 7.6 It is submitted that when the development permission was given for 394 sq. mts., the respondent authority did not verify the fact that the petitioner was only in ownership of 303 sq. mts. . The respondent authority had no authority to permit any development on the land of the state government.
7.7 It is further submitted that the order passed by the ULC Authority is not under challenge in this petition and therefore the Land which is declared excess and the ownership of which vests in the state government, cannot be modified indirectly by way of this petition.
7.8 However, learned AGP could not dispute the order of this Court dated 15.04.2008 where the petitioner was permitted to use the subject premises for commercial use for 394 sq.mtrs. of land and for the disputed land the amount of Rs.10,92,000/- was deposited before this Court.
8. Learned advocate Mr. Nanavati for respondent Nos. 1 and 2 adopted the above submissions.
9. Considered the submissions. From the documents on record, it is noticed that all the prayers made are interconnected. Revisitation of following facts would be Page 16 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined necessary for adjudication of the issues.
10. The land bearing old Survey No. 334/1 of village Vejalpur admeasuring 708 sq. meters was originally owned by Kumudben. Original owner applied for N.A. permission and the same was granted by respondent No. 4 - Collector on 07.01.1963. Thereafter, the competent authority under the ULC Act declared 314 sq. meters of land out of total 708 sq. meters as excess land and accordingly, original owner Kumudben became the owner of 394 sq. meters of land.
11. Original owner - Kumudben thereafter sold 394 sq. meters of land to petitioner No. 1 - Jayaben by way of registered sale deed dated 08.11.2004 and therefore petitioner No. 1 became owner of 394 sq. meters of land. This sale deed in favour of petitioner No. 1 was never challenged and attained finality. In other words, petitioner No. 1 - Jayaben was the absolute owner of land admeasuring 394 sq. meters. Subsequently, in September, 2004 Town Planning Scheme No. 5 came to be implemented and out of old Survey No. 334/1 admeasuring 708 sq. meters, 394 sq. meters was held to be retainable and from these 394 sq. meters, 303 sq. meters of land ( after deduction),became retainable and balance was declared as excess vacant land. Therefore, the issue arose was only with regard to balance 91 sq. meters. (394 sq. meters -
Page 17 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined 303 sq. meters) for which amount has already been directed to be deposited by this Court under order dated 15.04.2008 and the same is deposited before the Registry of this Court as per the market value.
12. Since, petitioner No. 1 was the owner of 394 sq. meters of land she sought for development permission for commercial use and was granted the same by order dated 03.04.2006. Therefore, this is also one of the factors which needs consideration that on an application made by petitioner No. 1 dated 13.06.2005, seeking development permission, the same was granted for commercial use of 394 sq. meters of land and accordingly the development was carried out on 394 sq. meters of land. These facts are once again supported by the submissions made on behalf of the State Authorities. The necessary non-agricultural permission for change of use from residential to commercial was applied by petitioner No. 1 to respondent No. 4 on 19.08.2007. On an application made by petitioner No. 1 an opinion was sought for from Deputy Collector, ULC and Deputy Collector, ULC addressed communication dated 23.01.2008 to respondent No. 1 - AUDA stating that the development permission dated 03.04.2006 was not proper and also called for certain information.
13. From the above chronology, it is noticed that there was Page 18 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined no fault of the petitioner no.1 when the earlier development permission dated 03.04.2006 was granted. Moreover, the reason for subsequent rejection given was due to 91 sq. meters of balance land (pursuant to deduction) and that was the reason for not accepting the application of the petitioner for change in use from residential to commercial use, because it was case of the respondent state that ownership of petitioner with regard to 394 sq.mtrs. of land is not clear.
14. Moreover, since respondent No. 5 had entered into development agreement, respondent No. 5 filed Special Civil Application No. 4062 of 2008 challenging the action of respondent No. 1 - AUDA, canceling development permission. A simultaneous petition was also filed being Special Civil Application No. 5013 of 2008 by petitioner No. 1 seeking to quash and set aside the letter dated 13.02.2008 of respondent No. 4 - Collector with a request to accept the application of the petitioner No. 1 seeking N. A. permission for commercial use. Most importantly, this Court on 15.04.2008 passed an order after taking into consideration the entire documents on record and further granted interim relief in favour of the petitioners by observing as under: --
"11. Having heard the learned counsel for the parties on the question of interim relief, we find that the contentions raised on behalf of the petitioners require serious consideration. There is no dispute about the fact that the development Page 19 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined permission dated 3rd April 2006 issued by AUDA was in response to the petitioner's application dated 13th June 2005 wherein the petitioner had clearly stated that permission was sought for constructing a building for commercial use. Development permission dated 3rd April 2006 also indicated that the permission was granted for constructing shops and offices for commercial use. Admittedly, no opportunity of hearing was given by AUDA before purporting to cancel the development permission dated 3rd April 2006.
12. Similarly, the respondents have offered no defence to the petitioner's contention that application dated 19th August 2007 for change of user i.e. from residential to commercial use in the NA permission (already granted in the year 1963) was not replied to for a period of three months from the date of receipt of the said application. The petitioners have, therefore, made out a strong prima facie case for invoking the provisions of Section 65A read with section 65 of the Bombay Land Revenue Code.
13. The only question which now remains to be examined is about the petitioner's contention that in view of the contents of the Redistribution and Valuation Statement prepared by the Assistant Town Planner in the Town Planning Scheme, which is sanctioned as the Final Town Planning Scheme by the State Government by notification dated 20th September 2004, the petitioner has become absolute owner of the entire land being final plot No.164 admeasuring 545 sq. meters. This question will be examined at the final hearing of the petitions. The decisions relied upon by the learned counsel for the petitioners will also be considered at the final hearing.
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14. But in view of pendency of the application dated Nil.2.2008 of the petitioner at Annexure 'O' to the petition and in view of the deposit of Rs.10,92,000/- made by the petitioner with the Registry of this Court on 18th March 2008, we are of the view that this is a fit case for granting interim relief to the effect that the respondent authorities shall permit the petitioners to make commercial use of the building constructed on the land admeasuring 394 sq. meters in final plot No.164 in Town Planning Scheme No.5, Ahmedabad. Both Mr AS Vakil for the petitioner in Special Civil Application No. 5013 of 2008 and Mr Harin Raval with Ms Sonal Shah for the petitioner in Special Civil Application No. 4062 of 2008 state that their respective clients do not have any inter se dispute between them and that the petitioners will work out the internal arrangement between them as to which petitioner should make commercial use of the building in question.
15. It is clarified that pendency of these petitions does not preclude the State Government and the Collector, Ahmedabad from considering the petitioner's application for purchasing the land admeasuring 91 sq. meters as well as the land admeasuring 151 sq. meters in Final Plot No. 164 at the market value. According to the petitioners, market value of the land as per the revised Jantri prepared by the State Government w.e.f. 1.4.2008 is Rs.8,000/- per sq. meter, but in order to end the litigation and to remove the cloud of uncertainties, the petitioner is prepared to pay price of Rs.12,000/- per sq. meter.
16. Accordingly, we grant interim relief in the following terms which shall operate till final disposal of the petitions:-
Page 21 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined
(a) The respondent authorities shall permit the petitioner of Special Application No. 5013 of 2008 to make commercial use of the building constructed on the land admeasuring 394 Sq.
mtrs. in Final Plot No. 164 in Town Planning Scheme No. 5 (Ahmedabad).
(b) It will be open to the petitioner of Special Civil Application No. 5013 of 2008 to permit the petitioner of Special Civil Application No. 4062 of 2008 to make commercial use of the aforesaid building.
(c) The amount of Rs.10,92,000/- deposited by the petitioner with the Registry shall be invested in a fixed deposit under cumulative interest scheme with State Bank of India, Gujarat High Court Complex Branch, Ahmedabad for a period of one year in the first instance and appropriate instructions shall be given to the Bank to continue to renew the fixed deposit until further orders.
(d) AUDA shall remove all the impediments in the petitioners' use of the property in question for commercial purpose within three days from the date of receipt of this order.
(e) The State Government shall take decision on the petitioner's application dated Nil-2.2008 at Annexure O to the application as expeditiously as possible and preferably within six months from the date of receipt of this order.
Direct service is permitted."
15. Therefore, undisputedly, pursuant to the order dated 15.04.2008 the petitioners are using the said premises for commercial purposes. Moreover, as submitted by learned advocate for the petitioner the amount which is deposited before Registry of this Court with the accrued interest be Page 22 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined directed to be released in favour of State Government In the opinion of this Court, no prejudice would cause to the respondents because the reason which is stated in the order dated 13.02.2008 for not giving commercial use permission was on account of dispute with regard to 91 sq. meters. If the application of the petitioners for purchase of 91 sq.mtrs of land is directed to be considered upon receipt of the consideration deposited before this court pursuant to the order of this Court dated 15.04.2008, with accrued interest thereon, the question of F Form having two separate form would not arise. Further, the dispute raised in communication dated 13.02.2008, in the opinion of this Court is already considered by this Court in the order dated 15.04.2008 and therefore the grievance of the respondent - State about it being adversely affected, is without any merits.
16. Further, the aspect of petitioner No. 2 being permitted to be transposed from respondent to petitioner No. 2, in an application filed and allowed vide order dated 17.10.2023 in Civil Application No. 02 of 2023 in Special Civil Application No. 5013 of 2008 cannot be ignored. Therefore, considering all above aspects, following order is passed.
16.1 The order dated 30.06.2009 rejecting the application of the petitioner dated 25.02.2008 is hereby quashed and set Page 23 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined aside.
16.2 The respondent - State is directed to allow the application of the petitioner dated 25.02.2008, seeking to purchase 91 sq. meters of land, by accepting the amount deposited before Registry of this Court under interim directions dated 15.04.2008 (Rs.10.92,000/- with accrued interest). The registry is therefore, directed to pay the amount of Rs.10.92,000/- with accrued interest thereon within a period of three weeks from the date of receipt of this order.
16.3 Once the said amount is paid to respondent - State, the sale deed dated 08.11.2004 in favour of petitioner No. 1 and thereafter sale deed dated 04.12.2010 in favour of petitioner No. 2 for purchase of 394 sq. meters of land is directed to remain in force.
16.4 Once the petitioners are owner of 394 sq. meters of land, application dated 19.08.2007 seeking non-agricultural permission for change of use from residential to commercial is directed to be considered, as if the entire land of 394 sq.mtrs. now belongs to the petitioners.
16.5 In view of quashing and setting-aside of order dated 25.02.2008 of respondent No. 1, the development permission Page 24 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025 NEUTRAL CITATION C/SCA/5013/2008 JUDGMENT DATED: 18/02/2025 undefined dated 03.04.2006 be restored and respondent No. 1 and the appropriate authority are directed to grant B.U. permission as referred in the order dated 15.04.2008.
17. In view of above, the present petition is allowed to the above extent. Rule is made absolute to the above extent. No order as to costs.
18. In view of disposal of main matter, all connected Civil Applications would not survive.
sd/-
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 25 of 25 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:43:21 IST 2025