Mahendrabhai Jivanbhai Sarvaiya vs State Of Gujarat
2021 Latest Caselaw 18116 Guj

     C/SCA/4042/2021                               CAV JUDGMENT DATED: 06/12/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 4042 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2       To be referred to the Reporter or not ?                       NO

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 or any order made thereunder ?

========================================================== MAHENDRABHAI JIVANBHAI SARVAIYA Versus STATE OF GUJARAT ========================================================== Appearance:

MR ASIM PANDYA, SR. COUNSEL WITH MR.MANAN BHATT(6535) for the Petitioner(s) No. 1,2,3,4 MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP(99) for the

MR MR BHATT, SENIOR COUNSEL WITH MR MUNJAAL BHATT, ADVOCATE FOR M R BHATT & CO.(5953) for the Respondent(s) No. 8,8.1,8.2

MR RM PARMAR(591) for the Respondent(s) No. 3,4,5,6.1,6.2,6.3,6.4,7 MUNJAAL M BHATT(8283) for the Respondent(s) No. 8,8.1,8.2 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 06/12/2021

CAV JUDGMENT

1. On 18.11.2021, this matter with consent of the learned counsels for the respective parties was taken up for final hearing and the judgement

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was reserved.

2. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP for respondent no. 1, Mr. M.R. Bhatt, learned Senior Counsel appearing with Mr. Munjal Bhatt, learned advocate for respondents no.8, 8.1, 8.2, Mr. H.S Munshaw, learned counsel for respondent no. 2 and Mr. R.M. Parmar, learned advocate for respondents no. 3, 4, 5, 6.1, 6.2, 6.3, 6.4 and 7 waive service of notice of Rule.

3. Heard Mr. Asim Pandya, learned advocate appearing with Mr. Manan Bhatt, learned advocate for the petitioners, Mr. Meet Thakkar, learned AGP for respondent no. 1, Mr. M.R. Bhatt, learned Senior Counsel appearing with Mr. Munjal Bhatt, learned advocate for respondents no. 8, 8.1, 8.2, Mr. H.S Munshaw, learned counsel for respondent no. 2 and Mr. R.M. Parmar, learned advocate for respondents no. 3, 4, 5, 6.1, 6.2, 6.3, 6.4 and 7.

4. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned Resolution No. 166 dated 27.09.2019 passed by the respondent Rajkot Municipal Corporation.

5. Facts in brief are as under:

5.1 It is the case of the petitioners that the petitioners along with respondents no. 3 to 7 are co-owners of the property in question. The property is the residential premises namely 'Ramkrupa' situated at City Survey Ward No. 11/1, City Survey Street No. 211, City Survey No. 1181 to 1184 admeasuring around 200 mtrs. The case of the petitioners is

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that the said property has not been partitioned among co-owners and the co-owners i.e. respondents no. 3 to 7 are trying to sell the property in question without resorting to partition by metes and bounds. Having come to know that, on 12.09.2018, a public notice was published by the petitioners against any transfer. Similarly another public notice was published on 22.05.2019.

5.2 The case of the petitioners is that the respondents no. 3 to 7 fraudulently, illegally and unlawfully transferred 80 sq. mtrs of the property in question to respondent no. 8 - Savaliya Developers Private Limited. This was done by a sale deed dated 10.06.2019. It is the case of the petitioners that the petitioners have filed a civil suit being Special Civil Suit No. 76 of 2019 seeking quashing of the registered sale deed executed collusively so as to defeat the legal rights and interest of the petitioners. After filing of the civil suit, the respondent no. 8 who initially made an application on 25.06.2019 to transfer the property in question and enter their name in the property card withdrew such application with a view to make such application once the civil suit was finally decided. The case of the petitioners is that on 19.07.2019, the City Survey Superintendent rejected the application of the respondent no. 8 stating that the name of respondent no. 8 cannot be entered into the revenue records or the property card unless there is partition or sub- plotting.

5.3 Under challenge in this petition is a resolution dated 27.09.2019 issued by the Rajkot Municipal Corporation (for short 'the Corporation'). It is the case of the petitioners that by the impugned Resolution No. 166 dated 27.09.2019 passed by the Rajkot Municipal Corporation in its Standing Committee, the Rakjot Municipal Corporation resolved in

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laying down a street line by virtue of which the existing bridge is proposed to be widened from 6.20 mtrs to 15 mtrs. This is to be done by acquiring the disputed property in question. The challenge according to the petitioners is that by virtue of the sale deed and claiming ownership of that portion of land of which the resolution impugned is passed, the Rajkot Municipal Corporation is obliging the respondent no. 8 under the guise of road widening to provide a better approach road and a better frontage to the new residential project of respondent no. 8. The action is therefore challenged on the ground of it being malicious in fact and in law.

5.4 The case of the petitioners is that the petitioners made a representation to the Rajkot Municipal Corporation on 19.01.2021. Upon an RTI application made on 21.01.2021, the petitioners came across certain documents namely a representation dated 11.07.2019 submitted by the slum residents, a representation of even date submitted by respondent no. 8 Savaliya Developers representing to the Corporation that the road connecting the canal road to an area known as 'Laludi Wonkdi' needs to be widened in public interest. This according to the petitioners is a representation made not in public interest so as to get the bridge over what is known as 'Laludi Wonkdi' repaired as it is in a dilapidated condition, but to get the line of street widened of the area of 80.25 sq.mtrs belonging to the respondent no. 8 under the subterfuge of entering into a sale deed to have the benefit of his residential project. Also annexed to the petition is a public notice issued by the Corporation under Section 210 of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter referred to as 'the GPMC Act'/ 'the Act') dated 19.08.2020 and a copy of the order passed below Ex. 25 in Regular Civil Suit No. 76 of 2019 and some file notings of the Corporation. With the support of

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these documents what is sought to be canvassed by the petitioners is that the entire exercise of road widening is done not in public interest but so as to benefit the respondent no. 1 with a malicious intention for extraneous considerations to benefit respondent no. 8.

6. Mr. Asim Pandya, learned Senior Advocate appearing with Mr. Manan Bhatt, learned advocate for the petitioners would make the following arguments:

(a) The petition raises a question of malice in facts and law regarding acquisition of the private property which has a potential to have a great frontage approach road to a project of the respondent no. 8 - 'Vasundhara Heights' and the respondent no. 8 has used the state machinery for his own commercial benefits. He would submit that the property being an ancestral property owned by 10 legal heirs including the petitioners without being partitioned by metes and bounds is being used by the respondent no. 8 under the shelter of a sale deed entered by respondents no. 3 to 7 the co-owners by which the property has been transferred to respondent no. 8 and is a subject matter of the civil suit.

(b) Relying on a time line of dates and events, Mr. Pandya would submit that after the petitioners approached the civil court for cancellation of the sale deed, on 11.07.2019 i.e. exactly a month after the registration of the sale deed, the respondent no. 8 requested the Corporation for road widening and change in the street line and the respondent no. 8 unilaterally offered the property to the Corporation as if it was for a public purpose. To justify and camouflage his request, a concocted application was filed on the same day on 11.07.2019 allegedly by the slum dwellers. Reading the resolution dated 27.09.2019, he would

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submit that the resolution though mentions a request of the slum dwellers the resolution to exercise powers under Section 213 of the GPMC Act is done at the behest of respondent no. 8.

(ba) Again relying on the time line, he would suggest that after the application was made on 11.07.2019, within a short period of 60 days, the respondent no. 2 on 09.09.2019 wrote a letter for changing the street line and widening the road with a request for approval to the Standing Committee. According to Mr. Pandya, reading of the letter dated 09.09.2019 would indicate that the Commissioner has requested the Corporation that it is necessary to widen the road between canal road passing over and connecting over the 'Laludi Wonkdi' and the road which is for the present 6.20 mtrs needs to be widened by an additional 8.80 mtrs, in all therefore the road is to be made of a width of 15 mtrs, so as to facilitate usage of the widened road over the bridge over 'Laludi Wonkdi' which according to the Commissioner gets inundated due to rains and causes inconvenience to around 8000 to 10,000 residents of the area. This according to the learned counsel is a facade to get the road widened for the benefit of respondent no. 8.

(bb) Mr. Pandya would therefore submit that thereafter within a short period of 18 days the impugned resolution of 27.09.2019 was passed without following any procedure contemplated under the GPMC Act. He would submit that ironically the notice under Section 210 of the GPMC Act was issued on 19.08.2020 whereas the notice under Section 213 was issued on 26.05.2020. The resolution does not even refer to the objections filed by the petitioners on 21.09.2019.

(c) Mr. Pandya would submit that the acquisition under Section 213 of

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the GPMC Act would indicate malice inasmuch as it was done by obtaining a legal opinion of an advocate Mr. Arjun Patel on 24.06.2020 who advised the Corporation to follow the procedure under Section 210 on the ground that it is only the owner who has to be given notice and need not be given to the persons who are named in the property card because the revenue entries are only for fiscal purposes.

(d) Mr. Pandya would submit that respondent no. 8 Savaliya Developers has no right to surrender the property in question namely the property that they have acquired under the sale deed under challenge namely 80.25 sq. yds from the total area of 171.69 sq. mtrs of the undivided property of the petitioners and respondents no. 3 to 7 who are co-owners of the property in question. The transaction by virtue of the sale deed dated 18.05.2019 between respondents no. 3 to 7 with respondent no. 8 is an illegal transaction for the following reasons:

(da) Though the respondent no. 8 warned by two public notices, he purchased the undivided shares from some of the co-owners which is not permissible under Section 44 of the Transfer of Property Act.

(db) The consideration for the property was paid in 2017 but the name of respondents no. 3 to 5 and 7 along with other co-owners entered into the property card in 2018. This suggests that from the inception of the project the respondent no. 8 knew that the road widening through property in question is inevitable so as to get commecially viable price of the project. The sellable value depends largely upon road-widening which provides better frontage to the main gate of the scheme.

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(dc) The registered sale deed was executed on 18.05.2019 i.e. after the public notice was issued. Admittedly, the respondent no. 8 did not respond to any public notices. This shows that the story which he wanted to canvass on the basis of the written statement filed by defendants no. 1 to 4 in Special Civil Suit No. 76 of 2019 falls flat as it talks about some family partition dated 28.10.2018 but the sale consideration was already paid in 2017. Though the petitioners have already denied all the fact stated in the written statement through a rejoinder filed in the said suit, the conduct of the respondent no. 8 of not replying to any of the public notices or not mentioning the said settlement in the sale deed or in the application before the City Survey Superintendent in his application for entering his name in the property card establishes that the facts mentioned in the written statement cannot be relied upon and are an afterthought.

(dd) The respondent no. 8 till date, has not challenged the order passed by the City Survey Superintendent dated 19.07.2019 wherein a clear finding was given that the jointly owned and unpartitioned dwelling house cannot be sold without the permission of all legal heirs.

(e) Mr. Pandya would further submit that the conduct of the respondent no. 8 would indicate that he projected himself as an interested party and made a civil application for joining party which would vindicate the stand of the petitioner that it was he who was interested in the dispute. With a view to achieve results during the course of hearing, the respondent no. 8 produced a forged, fabricated and a concocted document alleged to be a family arrangement entered into between the petitioners and respondents

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no. 3 to 7 on 28.10.2021.

(f) In support of his submissions, Mr. Pandya has relied on the decision of the Apex Court in the case of State of Punjab and Others vs. Gurdial Singh and others [AIR 1980 SC 319].

(g) In conclusion Mr. Pandya would submit as under:

(ga) The registered sale deed is illegal as no partition in metes and bounds is carried out and Section 44 of the Transfer of Properties Act, 1882 does not entitle the respondent no. 8 to have joint possession of the dwelling house. Therefore, he cannot unilaterally surrender any part of the property in question to the Corporation.

(gb) The only motive and reason to change the street line is of better frontage and approach road which helps the respondent no. 8 to get the best commercial value of the property.

(gc) The Corporation has not followed any procedure as contemplated under the GPMC Act, 1949. In fact, just to make as how that Section 210 provisions was followed, a public notice was issued under Section 210 on 19.08.2020 i.e. much after the impugned resolution dated 27.09.2019 is passed and notice under Section 213 dated 26.05.2013 was issued.

7. Mr. M.R. Bhatt, learned Senior Advocate with the respondents no. 8, 8.1 and 8.2 would submit as under:

7.1       Briefly outlining the challenge in the petition, Mr. Bhatt would





   C/SCA/4042/2021                                CAV JUDGMENT DATED: 06/12/2021

submit that the petitioners are challenging the Resolution No. 166 dated 27.09.2019 passed by the Rajkot Municipal Corporation on the ground that it is illegal and violative of certain sections of the Bombay Provincial Municipalities Act. Under the resolution, the Corporation has resolved to widen a dilapidated narrow bridge linking the canal road with 'Laludi Wonkdi' on the basis of several representations received by the slum dwellers living in the adjoining area. According to the petitioners, Mr. Bhatt would submit that this is done with a view to provide a better frontage to the scheme which is upcoming by the respondent no. 8 and the respondents no. 3 to 7 and respondent no. 9 who are co-owners of the property and who have sold part of their share of 80.25 sq. yards to the respondent no. 8 is a sale bad in law because there is no partition by metes and bounds. He would submit that a Special Civil Suit is filed challenging the sale deed entered into between the parties.

7.2 Mr. Bhatt would submit that the respondent no. 8 is being targeted and made a scapegoat in a dispute of the ancestral property between the legal heirs of one Jivanbhai Valabhai Sarvaiya i.e. the petitioners and respondents no. 3 to 7 and respondent no. 9. He would submit that the respondent no. 8 entered into a legal transaction of a registered sale deed on 18.05.2019 between the co-owners namely respondents no. 3 to 7 and 9 by which a portion of land was sold to respondent no. 8. The registered sale deed clearly demarcates the portion sold to respondent no. 8. The sale deed is witnessed in accordance with the provisions of Sections 48 and 50 of the Registration Act. The entire petition is with a view to derail the process of widening the road.

7.3 Mr. Bhatt would submit that respondent no. 8 has floated a scheme which is also a one for affordable housing pursuant to a permission

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granted by the Corporation on 08.08.2017 two years before the impugned resolution dated 27.09.2019 was passed. If the petitioners were interested they would have ensured that the resolution is passed in the year 2017 itself and not as late as in 2019. He would submit that the resolution was passed in the year 2019 and would not have been passed so late but in the year 2017 itself.

7.4 Mr. Bhatt would submit that the concerned petition is unnecessarily crying foul that the entire exercise is being carried out at the hands of the respondent no. 8 when there are representations made by the slum residents and it is not even a doubt that event the respondent no. 8 has mentioned in his representation of 11.07.2019 for widening the road. The respondent no. 8 cannot be targeted under the guise of being called 'a builder'.

7.5 Mr. Bhatt would further submit that a civil suit is filed and pending for the challenge to the registered sale deed dated 18.05.2019 wherein the exhibit 5 for interim relief was rejected. This fact is not disclosed by the petitioners. The exercise of powers by the Rajkot Municipal Corporation under Sections 210 and 213 have been carried out in consonance with the provisions of the Act and it is so fortified by the fact that when the petitioners made an application for the same purpose in the suit to join the Corporation, by an order at Ex. 25 dated 16.12.2019 that request was rejected. This fact was not disclosed by the petitioner in the petition but was so done only in February 2021 on the basis of an affidavit after the affidavit filed by respondent no. 8.

7.6 Mr. Bhatt would submit that the Corporation has filed its affidavit- in-reply on 12.04.2021 wherein it has given the list of resolutions namely

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the resolution dated 27.09.2019, an administrative order dated 03.10.2019 for effecting the resolution dated 27.09.2019, bid submitted by Mr. Bhojani for carrying out the work of widening the road, acceptance of the bid on 09.12.2020 and it is only after this bid was accepted that the petition was filed belatedly in the year 2021. These documents are not placed by the petitioners and only filed by way of a draft amendment which shows that there was an attempt made by the petitioners to not bring out the full factual scenario for adjudication.

8. Mr. H.S. Munshaw, learned advocate appearing for the respondent Corporation would rely on an affidavit filed on behalf of the Corporation and submit that pursuant to several representations received from various quarters for widening of a dilapidated narrow bridge linking canal road with 'Laludi Wonkdi' slum quarters under the provisions of Section 210 of the GPMC Act, a proposal was submitted to the Standing Committee of the Corporation on 09.09.2019. It was decided that for widening the road and bridge, a piece of land admeasuring 80.25 sq. yards which was owned by respondent no. 8 was acquired for such purposes. Since the possession of the land was essential for widening the road and the bridge, the said possession was taken over on 30.06.2020. A Rojkam to that effect is annexed.

8.1 Mr. Munshaw would also invite the attention of the court to a notice issued in the newspapers on 19.08.2020 under Section 210 of the Act inviting objections. Thereafter the Standing Committee proposed to pass a resolution in its meeting on 09.12.2020 accepting the tender of Mr. Bhojani Manhar Somabhai for Rs.85,44,560/- for carrying out such works and on 10.12.2020 it was resolved to implement the same and a work order was issued and executed on 19.12.2020 determining a time limit of

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8 months to commence the project on 21.12.2020. He would submit that the land which is acquired is that of the respondent no. 8 who had purchased the said land admeasuring 67.09 sq. mtrs (80.25 sq. yards) through a registered sale deed dated 18.05.2019. It was in that context that a notice was issued to the owner of the land under Section 213 of the Act on 26.05.2020. The Corporation has nothing to do with the family dispute of the petitioners and respondents no. 3 to 7 which is a subject matter of a regular civil suit pending between the parties where on an application made by the petitioners to join the Corporation as a party the same was dismissed.

8.2 The court therefore in the context of the conspectual facts is called upon to decide whether the action of the Corporation by passing the impugned resolution dated 27.09.2019 and thereafter acquiring a piece of land namely 80.25 sq. yds belonging to respondent no. 8 for the purposes of widening the road can be said to be malicious in fact and malicious in law at the behest of the respondent no. 8.

9. Having heard learned advocates for the respective parties, what is noteworthy is that the present petitioners who claim to be co-owners of the property or the parcel of land which was sold to the respondent no. 8 by the respondents no. 3 to 7 being the co-owners have filed this petition on 12.02.2021 and registered the petition on 24.02.2021 Preceding this date, the events need to be considered. It is the case of the petitioners that they along with the respondents no. 3 to 7 are co-owners of property at city survey no. 11/1, city survey street no. 211, city survey no. 1181 - 1184 which was in all admeasuring 171.69 sq.mtrs of which the respondent no. 8 is a purchaser of 67.09 sq.mt sold by respondents 3 to 7 and 9. This is done by a registered sale deed dated 18.05.2019. The time

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line as given by way of a chart of dates by respective counsels would suggest that the property in question was owned by the co-owners, 10 in number, the area admeasuring was 171.69 sq.mts. This is so reflected in the property card of the property in question dated 14.09.2018.

9.1 On 18.05.2019, the respondents no. 3 to 7 and 9 being co-owners of the property entered into a registered sale deed and sold 67.09 sq. mtrs of the total area to respondent no. 8. The respondent no. 8 therefore by virtue of sale deed of 18.05.2019 is the owner of the area of 67.09 sq. mtrs of the demarcated portion of the land as reflected in the sale deed. Albeit, it is the question of the petitioners that the sale deed so entered into between the respondents no. 3 to 7 and 9 is a subject matter of a Special Civil Suit No. 76 of 2019 which is filed on 10.06.2019 seeking cancellation of the sale deed, what is evident is that as early as on 04.07.2019 a reply was filed by the respondent no. 8 in the civil suit that a family arrangement was entered into between the petitioners and the respondents no. 3 to 5 and 7 and 9 and therefore by virtue of such family settlement dated 24.10.2018, the land was demarcated and partitioned.

10. Mr. Pandya's assertion that the entire exercise of the impugned resolution dated 27.09.2019 has been passed at the behest of respondent no. 8 is essentially based on the time line that he submits together with the assertion of an argument that the possession of the respondent no. 8 of the land which is acquired for the purposes of carrying out road widening is the land which is not partitioned by metes and bounds between the petitioners and respondents no. 3 to 7 and 9 who purportedly have sold such land to respondent no. 8. The other limb is that the road widening is evidently done at the hands of respondent no. 8 by virtue of his request on 11.07.2019.

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11. As far as the question of entitlement of the title of the land namely the demarcated portion of the 67.09 sq.mts of land is concerned, it is undisputed that the petitioners have filed a Special Civil Suit No. 76 of 2019 challenging the sale deed by virtue of which the respondent no. 8 became the owner of such land. Therefore, the issue whether the land in question could be sold without metes and bounds by the co-owners without partition is a question which is at large before the civil court. The petitioners would want this court to delve into that dispute indirectly while assessing the legality of the resolution of the Corporation, which this court would not venture into when the dispute is at large before the civil court. This is particularly when an additional fact has been brought on record of a purported family arrangement entered into between the parties i.e. the co-owners the petitioners and respondents no. 3 to 7 & 9 on 28.10.2018 prior to the sale deed dated 18.05.2019.

11.1 Though by virtue of an additional affidavit filed by the petitioners it is asserted that the document of family arrangement is forged, concocted and fabricated and such family arrangement was not even produced before the civil court and this court should take action against the respondents by putting the machinery under criminal law in motion for producing forged documents, it cannot be lost sight of the fact that right from the inception before the civil court the respondent no. 7 had on 04.07.2019 taken a stand in the written statement that there is a family arrangement entered into between the parties.

12. In the venture to decide the validity of the resolution of the Corporation dated 27.09.2019, this Court though goaded to enter into that dispute would be loathe in doing so when it is at large before the civil

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court. It is in background of these facts that the court will decide the validity of Resolution No. 166 dated 27.09.2019 without entering into the question whether the registered sale deed is illegal as there was no partition in metes and bounds carried out under Section 44 of the Transfer of Property Act and the only motive and reason to change the street line is for a better frontage to the respondent no. 8. Therefore, it is in light of these circumstances that the resolution dated 27.09.2019 needs to be examined.

12.1 As the date on which the resolution dated 27.09.2019 was passed, the land demarcated and acquired by the Rajkot Municipal Corporation namely 67.09 sq. mtrs for widening the road to 15 mts is that of the respondent no. 8 which the respondent no. 8 voluntarily surrendered to the Corporation on 30.06.2020. The date is relevant inasmuch as the sale deed of 18.05.2019 by virtue of which the respondent no. 8 has become the owner of that portion of land is a subject matter of a challenge before the civil court which has not finally adjudicated the rights of the parties. That the petitioners failed before the learned civil judge under Ex. 5 application praying for interim relief in respect of the registered sale deed dated 18.05.2019 has not been brought on record by the petitioners. After the affidavit-in-reply was filed by respondent no. 8 certain documents were brought on record by the petitioners by way of amendment carried out in the petition, namely the representations by the slum dwellers on 11.07.2019, representation dated 11.07.2019 submitted by respondent no. 8, copy of certain important file notings of the Corporation for widening the road, copy of the letter of the respondent no. 8 for removal of encroachments and more importantly a copy of the order below Ex. 25 in Regular Civil Suit No. 76 of 2019. Reading the order below Ex. 25 indicates that an attempt was made by the petitioners to rope in the

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Corporation by filing an application Ex. 25 and bringing within the scope of the challenge in the suit the powers of the Corporation to widen the line of street, however, on a reply filed by the Corporation that application was rejected. By an order dated 16.12.2019, the order dated 16.12.2019 has not been challenged by the petitioners though it was passed as early as on 16.12.2019.

13. As far as trying to bring in the action of Corporation under the umbrella of malice in facts and law by showing the file notings and the opinion of advocate dated 24.06.2020, a conjoint reading of these would indicate that it was the stand of the Corporation then to inquire into the nature and character of the possession of the respondent no. 8 in light of the respondent no. 8's application for entering his name into the property card having been rejected. Apprehensive of the title of the land by virtue of which what weighed with the Corporation that once an application for entering the name of the respondent no. 8 in the property card was rejected and as per the orders so passed since there was no partition by metes and bounds, though there was a sale deed of a part of the property in question it would be in the fitness of things to take the opinion of an advocate. It is in this background that the advocate Shri Arjun Patel advised that the entry in the property card is only for the purposes of revenue entry and the owner in fact is the respondent no. 8 by virtue of the sale deed. Reading of the file notings annexed to the petition from pages 66N would indicate the line of thought that the Corporation exercised while undertaking the power under Section 210 read with Section 213 of the Act. It went into the question whether it could undertake such an exercise on acquisition of land namely 67.09 sq. mtrs which the respondent no. 8 owned by virtue of the sale deed. The Corporation from the file notings as is evident was of the mindset that

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though the application of respondent no. 8 for a revenue entry in his favour in the property card was rejected and there was an opinion of the advocate that property card entry was only for fiscal purposes and when the application of the petitioners for joining the Corporation was rejected on 16.12.2019, the Corporation in its wisdom thought it fit based on the representations made on 11.07.2019 to go ahead to exercise the powers under Section 210 and 213 of the GPMC Act to acquire the land for widening the road for the benefit of the residents of the vicinity.

13.1 Merely because an application of an even date was made even by the respondent no. 8, it cannot be said that the entire exercise of carrying out the widening of the road by virtue of the resolution dated 27.09.2019 was at the hands of the respondent no. 8. Photographs have been placed on record which indicate that on the demolition of the toilet in the line of street for widening the road would definitely benefit the frontage of the respondent no. 8 property but merely because it does so incidentally, same cannot be branded to be done with a foresight to favour the respondent no. 8. Though the petitioners would want the court to hold such by virtue of the cloud over the title of the land over the respondent no. 8 due to the pendency of the civil suit, the action of the respondent Corporation cannot be faulted. In light of the representations made by the respondent no. 8 and that of the other slum dwellers, the Corporation had before it a sale deed of 18.05.2019 which is a subject matter of challenge before a civil court. When the Corporation was sought to be roped in by the petitioners of civil suit, the application based on the reply filed by the Corporation was rejected. The Corporation bonafide in the reply had stated the entire project of widening the road has been delayed. Merely because the Corporation had taken such a stand prompted the civil court to reject the Corporation being joined as a party at the hands of the

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petitioners it cannot be said that the Corporation is acting maliciously in facts and in law.

14. What is otherwise also noteworthy is that the sale deed is of 18.05.2019; the civil suit was filed on 10.06.2019; as early as 04.07.2019 the respondent no. 8 before the civil court has taken a stand that there was already a family arrangement by virtue of which the land was partitioned by metes and bounds; there is a representation of 11.07.2019; the resolution under challenge was passed on 27.09.2019 the same is challenged after approximately two years in February 2021. In the interregnum, an administrative order for effecting the resolution was passed on 03.10.2019. A written statement was filed by the Corporation in December 2019 and an order was passed below application Ex. 25 by which the petitioners' request for joining the Corporation was rejected in December 2019 which order has not been under challenge. Notice under Section 213 of the Act was issued on 26.05.2020. The property was handed over by the respondent no. 8 on 30.05.2020. The map and the official sketch was published by the Corporation on 30.06.2020. Public notice was issued on 19.08.2020. The respondent no. 8 wrote a letter to the Corporation on 28.10.2020. Contract for carrying out the road widening was given on 09.10.2020 whereas the petition is filed in February 2021. All these dates and events would suggest that when the petitioners have filed a civil suit for setting aside the sale deed, having failed to get an Ex. 5 order, having failed to join the respondent Corporation in the suit to bring in the present adjudication within the scope of a civil court and when by virtue of a sale deed and being the owner of the land when the respondent no. 8 handed over possession of the land as early as in June 2020, the petitioners did not come forth and it was only after the entire exercise culminated into passing of a work order

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did the petitioners initiate the present petition in February 2021. The petition is filed essentially based on a claim that the action of the Corporation in acquiring the land for widening the street is done at the behest of respondent no. 8. Subject to the challenge which is still pending before the civil court, the sale deed by virtue of which respondent no. 8 owns the land and has handed over to the respondent Corporation and the consequential action of the Corporation in doing so cannot be branded as malicious only because of a pendency of a dispute regarding partition by metes and bounds between co-owners. The Corporation in its wisdom based on the representations by the slum dwellers and the respondent no. 8 has undertaken the exercise of widening the roads and merely because the respondent no. 8 is a party to such exercise on a request made by him though Mr. Pandya would submit that the representation of 11.07.2019 is a fraudulent document which essentially are the signatures on a hissa mapani, this court would not delve into such question of the document being forged when in accordance with law the Corporation has found the ownership of the land of respondent no. 8 and having acquired the same in June 2020 proceeded forth in the exercise of widening the street. It is not open for the petitioners to contend that they have not been given notices under Sections 210 or 213 of the Act because as rightly opined by the advocate based on which the Corporation acted merely because the application of the respondent no. 8 for having his name entered into the property card is rejected it is well settled that such entries are only for fiscal purposes and the Corporation would not be in any manner particularly when the application to join the Corporation at the hands of the petitioners is rejected, to stall such an exercise merely because a civil dispute is pending between the parties for adjudication.

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15. For all the above reasons, I do not find it fit to interfere with the resolution of the Corporation dated 27.09.2019 and the petition is accordingly dismissed. Rule is discharged. Interim relief is vacated.

(BIREN VAISHNAV, J)

After the above judgement was pronounced, Mr. Asim Pandya, learned Senior Advocate appearing with Mr. Manan Bhatt, learned advocate for the petitioners requests for stay of the present judgement. Mr. M.R. Bhatt, learned Senior Advoacate appearing with Mr. Munjaal Bhatt, learned advocate for respondents no. 8, 8.1 and 8.2 and Mr. R.M. Parmar, learned advocate for the respondents no. 3,4,5,6.1,6.2,6.3,6.4,7 object to grant of stay. Having regard to the facts of the present case, this court is not inclined to accept the request of learned advocate for the petitioners and the same is accordingly rejected.

(BIREN VAISHNAV, J) DIVYA