Jignesh Ramanbhai Patel vs Appellate Officer And ...
2021 Latest Caselaw 2268 Guj

      C/LPA/974/2015                                            JUDGMENT Dt.12.2.2021

    JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 974 of 2015
              In R/SPECIAL CIVIL APPLICATION NO. 6210 of 2015

                                   With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2015
                 In R/LETTERS PATENT APPEAL NO. 974 of 2015

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
================================================================
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                        YES
       of the judgment ?

4      Whether this case involves a substantial question                        YES
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

================================================================
                   JIGNESH RAMANBHAI PATEL
                            Versus
    APPELLATE OFFICER AND ADMINISTRATIVE MANAGER & 2 other(s)
================================================================
Appearance:
MR VIMAL PATEL (7210) for the Appellant(s) No. 1
MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
MR CHETAN K PANDYA(1973) for the Respondent(s) No. 3
MR RAJESH B DESAI(1216) for the Respondent(s) No. 3
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
================================================================

 CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
        and
        HONOURABLE MS. JUSTICE GITA GOPI

                                   Date : 12/02/2021



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        C/LPA/974/2015                                            JUDGMENT Dt.12.2.2021

     JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

                                   ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. The present Intra­Court Appeal is directed against the order dated 13.4.2015, whereby the learned Single Judge dismissed the Special Civil Application No.6210 of 2015 filed by the Petitioner - Appellant (Jignesh Ramanbhai Patel), which was directed against the order dated 22.1.2014 passed by the Junior Town Planner, Gandhinagar Town Development Authority, Gandhinagar, rejecting the application by which the regularization of the unauthorized construction was sought by the petitioner under the provisions of the newly enacted Gujarat Regularization of Unauthorized Development Act, 2011.

2. The brief reason assigned by the Authority concerned in the impugned order dated 22.1.2014 is a one­liner, namely, that with respect to the property situated in Survey No.472/P, the applicant does not have the consent of the owner of the land in question for such regularization.

3. The learned Single Judge, however, dismissed the writ petition on the ground that the Applicant claimed the said property under a Will executed by one Shantaben and there was a dispute with regard to the said Will raised from the side of Respondent No.3

- Lallubhai Mathurdas Patel, who also claimed a registered Will from the same Testator - Shantaben in his favour executed much prior in point of time. The said dispute is pending in the competent Civil Court between two private parties. The learned Single Judge, referring to Section 2(n) of the Act which defined the term 'Unauthorized Development' held that the regularization in such cases could not be done because the ownership rights of the

C/LPA/974/2015 JUDGMENT Dt.12.2.2021

JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

Applicant were not clear.

4. In the present Intra­Court Appeal, Mr.Vimal Patel, learned counsel for the Appellant, urged that the Act of 2011, the vires of this Act have been upheld by the Division Bench of this Court in the case of Shivlal K. Purohit & Others v. State of Gujarat & Ors. in Special Civil Application No.2865 of 2012, vide judgment dated 6.9.2012. He further submitted that the definition of the term 'Occupier' in Section 2(k), definition of 'Owner' in Section 2(l) and definition of term 'Unauthorized Development' in Section 2(n) are wide enough to cover the case of the present Petitioner - Appellant and his Application was expected to be decided on its own merits about the unauthorized development.

5. He further drew the attention of the Court towards the provisions of Section 5 and Section 15 of the said Act and on the basis of the same, he submitted that the present Petitioner - Appellant claimed to be the 'Owner' of the land and the construction in question on the basis of the said Will and irrespective of the challenge to the same in the competent Civil Court, his Application under this Act of 2011 deserves to be decided on its own merits.

6. He submitted that the Act clearly separates the right of ownership from the right to get the application for regularization of unauthorized development considered on its own merits and the provisions of the Act further clarify that such regularization, if any, granted under the provision of this Act, shall not be deemed to have decided any ownership rights of the unauthorized development in question.

7. The relevant provisions, which the learned counsel for the

C/LPA/974/2015 JUDGMENT Dt.12.2.2021

JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

Petitioner - Appellant sought to rely for the purpose of his arguments are quoted below for ready reference :

"2(k) "occupier" means,-

(i) any person who for the time being is paying or is liable to pay to the owner the rent of the land or building in respect of which such rent is paid or is payable;

(ii) an owner living in or otherwise using his land or building;

(iii) a rent free tenant;

(iv) a licensee in occupation of any land or building;

(v) any person who is liable to pay to the owner damages or compensation for the use and occupation of any land or building;

2(l) "owner" means in relation to any property, includes any person who is, for the time being receiving or entitled to receive, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as an agent, trustee, guardian, manager or receiver for any other person or for any religious or charitable institution, the rents or profits of the property; and also includes a mortgagee in possession thereof;

2(n) "unauthorised development" means the development where, irrespective of ownership, no permission of a building or a part thereof is obtained from the authority competent to give such permission, or having obtained permission, the development is in contravention of the relevant law or of such permission.

     5.       Notice      and       Application          for       Unauthorized






   C/LPA/974/2015                                            JUDGMENT Dt.12.2.2021

JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

Development.

(1) At any time prior to the 28th March, 2011 a notice issued to an owner or occupier or any order issued or decision taken under the relevant law requiring such owner or occupier to remove or pull down or alter unauthorised development carried out shall be deemed to have stood suspended unless and until such notice, order or decision stands revived under sub­section (2) of section 6 :

Provided that such provision shall not be applicable in case of development carried on land in respect of matters provided in subsection (1) of section 8.

(2) Notwithstanding anything contained in the relevant law or in the order issued or the decision taken under the relevant law, directing removal, pulling down or alteration of unauthorised development, or discontinuance of any use of land or building, the designated authority shall either suo moto or otherwise, within six months from the commencement of this Act, or within such period as may be extended by the State Government by order in writing, serve on the owner or occupier a notice in the manner as may be prescribed and direct him to furnish such particulars and documents as the designated authority deem necessary:

Provided that any applicant who has been served with the notice under the relevant laws as provided in sub­ section (1), or not may make an application in the manner as may be prescribed to the designated authority for regularisation of any unauthorised development within the period of six months from the commencement of this Act, or within such period as may be extended by the State Government by an order in writing :

Provided further that in case where more than one owner or occupiers are availing the facility of unauthorised development in part or whole, all such owners or

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JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

occupiers shall make an application jointly to the designated authority :

Provided also that the designated authority may after making such inquiry as it thinks fit, if satisfied, allow the lesser number of owners or occupiers to make an application.

(3) The occupier or owner or, as the case may be, the occupiers or owners shall reply in response to the notice served on him or them under sub­section (2) within a period of one month of such notice and in such manner as may be prescribed.

(11) Consequences of Regularization.

(1) On regularisation of such unauthorised development under section 6, all court cases or other proceedings, filed by the appropriate authority or the occupant or the owner or otherwise and pending in any court in so far as they relate to such unauthorised development, shall stand abated.

(2) Any decision under this Act shall not deemed to have decided the ownership of the unauthorised development.

15. Removal of Doubt.

For the removal of doubt, it is hereby declared that regularisation of unauthorised development under this Act shall be without prejudice to any civil or the criminal liability to which an applicant may be subject to under any law for the time being in force. "

8. Mr.Vimal Patel, learned counsel for the Appellant, therefore, submitted that the present Appeal deserves to be allowed and the Authority concerned deserves to be directed to decide the application afresh in accordance with law.

C/LPA/974/2015 JUDGMENT Dt.12.2.2021

JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

9. Per Contra, Mr.Satyam Chhaya, learned counsel for the concerned Town Planning Authority and Mr.Chetan Pandya, learned counsel for the private Respondent, sought to support the order of the learned Single Judge and urged that since the application of the Petitioner - Appellant was clouded by the dispute over ownership rights which was under challenge in the competent Civil Court, therefore, the application was rightly rejected by the Authority concerned and the learned Single Judge was also justified in rejecting the writ petition.

10. Having heard the learned counsels appearing for the parties, we are of the opinion that the scope of the Act of 2011 does not deal with civil rights of the parties under the Will or otherwise at all. The purpose of this Act is only to allow an opportunity to the unauthorized construction to be regularized subject to payment of prescribed fees and consideration of such application independent of the decision on the civil rights or property rights over the property concerned before the said Authority.

11. The purpose of this regularization of unauthorized development is to save such construction from demolition or destruction which is beyond the sanctioned plan. The provisions of the Act quoted above lays down a cut­off date of six months for making such Application from the date of commencement of this Act which is 20.2.2011. The Application in the present case appears to have been made by the Applicant on 17.8.2012 which was just 2 days prior to the cut­off of six months from the date of commencement of this Act in question. The private party also seems to have raised his objections before the said concerned Authority. However, the said concerned Authority, without deciding such Application on the merits and in accordance with the object of the

C/LPA/974/2015 JUDGMENT Dt.12.2.2021

JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

said Act, dismissed the said Application by one­liner order dated 22.1.2014.

12. We strongly deprecate the manner in which such quasi­ judicial orders are passed by the concerned Authority under the said Act of 2011. Neither the rival contentions of the parties are mentioned nor the tenor or the scope of the Application with relevant details are mentioned and the Authority has clearly fallen into error in raising a ground of rejection which is not even envisaged in the Act of 2011.

13. On the other hand, it clearly delineates the scope of the said Act for keeping the issues and disputes relating to ownership entirely away from the scope of this Act. It can be very well said that the determination of the respective properties rights or civil rights with regard to any property cannot obviously fall within the jurisdiction of administrative authorities, who are even discharging quasi­judicial functions. The Junior Town Development Officer cannot obviously be expected to decide the civil or property rights of any party and that is the work in the exclusive domain of the competent Civil Courts only.

14. In the present case, the civil disputes between the parties are already stated to be pending adjudication in the competent Civil Court and, therefore, the said Authority could not have raised that issue at all while rejecting the Application by a cryptic order. This has unnecessarily led to a multiple tier litigation in the Constitutional Courts and we are dealing with such order after 6 to 7 years in which time the entire purpose of dealing with such Application on merits stands defeated, at least de facto. We are further of the opinion that the learned Single Judge also, with great

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JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

respect, has also erred in upholding the said objection of the private Respondent and we are informed that the said writ petition was summarily dismissed at the admission stage on the very first day of the arguments.

15. As we have indicated above, the question of ownership and dispute over them are not covered within the ambit and scope of this Act of 2011 and, therefore, neither the order of the learned Single Judge nor the order passed by the concerned Authority dated 22.12.2014 as also the order passed by the Appellate Authority dated 16.3.2015 can be sustained.

16. Consequently, the present Intra­Court Appeal is allowed and we set aside the order passed by the learned Single Judge dated 13.4.2015, the order passed by the concerned Authority dated 22.1.2014 and the order passed by the Appellate Authority dated 16.3.2015 and restore the matter back on the file of the said Junior Town Planner Authority, Gandhinagar with a direction to him to consider and decide the Application for regularization filed by the Petitioner - Appellant on its own merits on the parameters envisaged in the Act of 2011 only, after affording adequate opportunity to parties concerned including the private respondent and not to express any opinion on the civil rights of the parties which are subject matter of litigation before the competent Civil Court. The parties may appear before the said Authority in the first instance by 15.3.2021. The concerned Authority is directed to decide the Application for regularization within three months thereafter.

17. With these observations, the Appeal is allowed. No order as to costs.

C/LPA/974/2015 JUDGMENT Dt.12.2.2021

JIGNESH RAMANBHAI PATEL v. APPELLATE OFFICER AND ADMINISTRATIVE MANAGER

18. Consequently, connected Civil Application also stands disposed of.

(DR. VINEET KOTHARI,J)

(GITA GOPI,J) V.J. SATWARA