Laxmanbhai Rambhai Jalu vs Surat Municipal Corporation Of ...
2022 Latest Caselaw 143 Guj

    C/SCA/5315/2020                              CAV JUDGMENT DATED: 05/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 5315 of 2020
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
              In R/SPECIAL CIVIL APPLICATION NO. 5315 of 2020
                                   With
           CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2020
              In R/SPECIAL CIVIL APPLICATION NO. 5315 of 2020
                                   With
             R/SPECIAL CRIMINAL APPLICATION NO. 4824 of 2019
                                   With
             R/SPECIAL CRIMINAL APPLICATION NO. 544 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== LAXMANBHAI RAMBHAI JALU Versus SURAT MUNICIPAL CORPORATION OF THE CITY OF SURAT ========================================================== Appearance:

MR. SHALIN MEHTA, SENIOR COUNSEL WITH MR SAURIN A

MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1,2 MR. I.H.SYED, SENIOR COUNSEL WITH MR. PRITHU PARIMAL, for the Petitioner(s) in S.CR.A NO. 4824 of 2019 and S.CR.A No. 544 of 2019. ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 05/01/2022

CAV JUDGMENT

C/SCA/5315/2020 CAV JUDGMENT DATED: 05/01/2022

Since all these matters are connected, they are being

decided by this common judgment.

SPECIAL CIVIL APPLICATION NO. 5315 of 2020

1 The prayer in the petition, reads as under:

"8(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of Mandamus, or any other appropriate writ, order quashing and setting aside the impugned Orders bearing No. TDO/6653 dated 24.02.2020 passed by the In-charge Town Development Officer, Surat Mahanagar Palika - Respondent No.2 and Orders bearing Nos. TDO/ 6649 - 6652 all dated 24.02.2020 passed by In-charge Town Development Officer, Surat Mahanagar Palika - Respondent No.2 and further direct the Respondents to grant Building Use permission for towers "B-1" and "B-2" of "Parishram Park" situated on Final Plot No. 56A (New Final Plot No.57)."

2 The facts in brief are as under:

2.1 The facts relate to land being Revenue Survey

No.76/2, Block No. 127 admeasuring 16,188 sq mtrs

situated at Jahangirpura, Taluka : Adajan, District: Surat.

The land was originally owned by one Dayakorben

Maganbhai Patel. The original owner had sought

development permission for Final Plot Nos. 56-A and 56-B

on 18.08.2004. The development permission was granted

on 20.08.2004. N.A permission was granted on

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24.08.2005.

2.2 It appears that the petitioner on 18.03.2004

purchased the land in question from the original owner

through a registered sale deed. Final Plot no. 56-A

admeasuring 6,264 sq mtrs is the land which is under

consideration in this petition.

2.3 In order to construct high rise top residential

buildings on the land in question, Final Plot No. 56-A, the

petitioner applied for development permission on

05.04.2012. This was for construction of four towers, "A",

"B-1", "B-2" and "C". The petitioner was required to file an

affidavit regarding pendency of any litigations and

therefore on 25.05.2012, he filed an affidavit stating that

there was a pending litigation between between the

petitioner and one Babubhai Govindbhai Nadiyadra

(applicant of Civil Application No. 2 of 2020 and applicant

of Special Criminal Application No. 544 of 2019).

2.4 Babubhai Govindbhai Nadiyadra, had filed a Special

Civil Suit No. 15/2004 for specific performance against the

original owner Dayakorben Maganbhai Patel, on the

ground that an Agreement to Sell was entered into

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between them on 13.08.1999 for the land in question,

including the present land admeasuring 6,264 sq mtrs.

The suit was dismissed on 18.04.2011.

2.5 Aggrieved by the dismissal of the suit, Babubhai

Nadiyadra instituted First Appeal No. 1643 of 2011. By a

judgment dated 24.09.2013, the High Court did not grant

the prayer of specific performance but awarded damages

to the appellant - original plaintiff Babubhai Nadiyadra to

the tune of Rs.1,47,72,349/-.

2.6 The judgment and order of the High Court is a subject

matter of Special Leave Petitions filed before the Hon'ble

Supreme Court, one by the original plaintiff / appellant,

present petitioner and the original owner. After having

granted leave on 27.01.2014, on an interim application

filed by Babubhai Nadiyadra, it is the case of the petitioner

that no stay was operating against the issuance of

B.U.Permission as is clear from the order dated

12.09.2014 passed by the Hon'ble Supreme Court.

2.7 By the impugned orders dated 24.02.2020 passed by

the Surat Municipal Corporation, B.U.Permission for towers

B-1 and B-2 have been refused to the petitioner on the

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ground that litigations are pending before the Hon'ble

Supreme Court and also Special Criminal Application No.

544 of 2019 is pending. These orders are under challenge.

3 Mr.Shalin Mehta, learned Senior Advocate, has

appeared with Mr.Saurin Mehta, learned advocate for the

petitioner. He made the following submissions:

3.1 He would submit that the original owner was granted

development permission in 2004. The petitioner was

granted revised development permission on 05.04.2012

for construction of four towers. N.A was granted for the

land in question on 24.08.2005 and revised development

permission was granted on 21.03.2013. Taking the Court

through this revised development permission, Mr.Mehta,

learned Senior Advocate, would submit that such granting

of the revised development permission was not challenged

by the respondent - appellant of the First Appeal and the

petitioner of Special Criminal Application No. 544 of 2019.

Reading the development permission at page 64 of the

paper book, Mr.Mehta, learned Senior Advocate, would

submit that the development permission essentially

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condition No. 6 categorically stated that the permission is

granted subject to final judgment of all the litigations

pending in the Court. The Surat Municipal Corporation,

therefore, having granted such development permission

and particularly when B.U.Permission for towers A and C

were granted on 08.12.2008, it was illegal for the

Corporation to not grant such permission for Towers "B-1"

and "B-2".

3.2 Mr.Shalin Mehta, learned Senior Advocate, would

submit that the respondent - Corporation was a statutory

authority and not a quasi judicial authority. Inviting the

Court's attention to Clauses 7.1.1 to 7.1.4 of the

Comprehensive General Development Control Regulations,

2017, ( hereinafter referred to as "CGDCR"), Mr.Mehta,

learned Senior Advocate, would submit that on reading

the affidavit dated 21.05.2012 filed for the purposes of

getting revised development permission, nothing

misleading was stated in the affidavit. In support of his

submissions, Mr.Mehta, would invite the attention of the

Court to the orders, esentially the interim order passed by

this Court in First Appeal. Referring to the order dated

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23.12.2011 passed in Civil Application No. 5828 of 2011 in

First Appeal No. 1643 of 2011, Mr.Mehta, would submit

that as per the order so passed, there was an

unconditional order of injunction in respect of vacant

portion of the land (now on which towers B-1 and B-2 are

constructed) which was operative only till 31.01.2012. The

order was conditional upon Babubhai Nadiyadra

depositing a sum of Rs.1 crore or give a bank guarantee to

the extent of Rs.3 crores. The same expired on 31.01.2012

as Babubhai Nadiyadra failed to deposit the said amount.

The only modification that the Hon'ble Supreme Court

granted by its order dated 27.04.2012 was to reduce the

amount of bank guarantee from Rs. 3 crores to Rs. 1

crore.

3.3 In support of his submissions he would read the order

of Hon'ble Supreme Court dated 27.04.2012 and submit

that the bank guarantee was given by the appellant -

Babubhai only on 25.05.2012.

3.4 Mr.Shalin Mehtra, learned Senior Advocate, would

further submit that once the First Appeal was finally

decided on 24.09.2013, the interim order merged with the

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judgment, by which the appeal was dismissed. No false

statement, therefore, can be attributed to the petitioner.

3.5 Mr.Shalin Mehta, learned Senior Advocate, would also

rely upon the provisions of Section 263 (2)(b) of the

Gujarat Provincial Municipal Corporation Act (GPMC Act),

2019. He would submit that if the Commissioner failed to

intimate his refusal for building permission within 21 days,

the building permission is deemed to have been granted.

He would submit that the building permission was applied

for on 20.12.2018 and in absence of rejection within 21

days the order which was impugned was beyond a period

of 21 days and on that count alone it was bad.

3.6 Mr.Shalin Mehta, learned Senior Advocate, places

reliance on paragraph 56 of the decision in the First

Appeal, namely, First Appeal No. 1643 of 2011 to submit

that the conduct of the present petitioner who was

defendant No.5 was though deprecated, the same

culminated into levying a penalty as is evident from

reading paragraph 65(c) of the decision where the

petitioner together with the other defendants were

directed to deposit an amount of Rs.1 lakh for the Gujarat

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State Legal Aid Authority.

3.7 Mr.Shalin Mehta, learned Senior Advocate, would

submit that the observation in the impugned order with

regard to the pendency of the Hon'ble Supreme Court

proceedings is misplaced in view of the fact that Babubhai

Nadiyadra failed to obtain a decree of specific

performance in the civil suit as well as in the First Appeal

before this Court. Both Courts concurrently denied specific

performance of the agreement to Babubhai Nadiyadra.

Therefore, denying B.U.Permission and let the subsequent

purchaser occupy their flats merely because of the

pending Civil Appeals before the Hon'ble Supreme Court is

misconceived.

3.8 With regard to the prayers made in Special Criminal

Application No. 544 of 2019 and 4824 of 2019, Mr. Shalin

Mehta, learned Senior Advocate, would rely on the reply

filed in the Civil Application for joining party by Babubhai

Nadiyadra (petitioner of Special Criminal Application No.

544 of 2019) and submit that the Jahangirpura Police

Station has already investigated on the representations /

complaints and a report has been filed on 13.12.2018

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holding that no offence has been made out. Even the

reports of the Vigilance Commission are on record. Since

Special Criminal Application No. 544 of 2019 was also

heard, Mr.Shalin Mehta, learned Senior Advocate, would

adopt the submissions made in context of the Special Civil

Application and submit that once the representations

made by the petitioner of Special Criminal Application No.

544 of 2019 have been rejected by the Corporation and

even when RERA has rejected the complaint, there is no

merit in the Special Criminal Applications and the prayers

made therein. In support of his submissions, Mr.Mehta,

learned Senior Advocate, would rely on the following

decisions which are in context of N.A permission. The

decisions relied upon by Mr.Shalin Mehta, learned Senior

Advocate, for holding that the Collector could not have

considered that the pendency of civil suits while denying

N.A.Permissions. He would rely on the following decisions:

3.8.1Special Civil Application No. 5924 of 2019 in the case

of Dhansukhbhai Somabhai Ahir vs. State of Gujarat

& Anr. He would rely on paragraphs 6.3 and 7 thereof.

Drawing support, he would submit that even in the

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present case, Building Use Permission adopting the same

analogy as is done in the case of N.A.Permission ought to

be granted.

3.8.2Mr.Shalin Mehta, learned Senior Advocate, would

then rely on decision in the case of Tusharbhai

Harjibhai Ghelani & Anr vs. State of Gujarat & Ors.,

reported in 2019 (4) GLR 2578. Reliance was placed on

paras 38 to 40 thereof. He would submit that the Collector

while granting the N.A.Permission is to see whether there

is the name of the concerned occupier in the revenue

record. It is nowhere stated that the applicant should have

a title or ownership over the land for which N.A.Permission

is sought. He would draw the same analogy for the

purposes of granting B.U.Permission.

4 Mr.I.H.Syed, learned Senior Advocate has appeared

with Mr. Prithu Parimal, learned advocate for the applicant

of Civil Application No. 2 of 2020, who is also the

petitioner of Special Criminal Application No. 544 of 2019

and Special Criminal Application No. 4824 of 2019. Civil

Application No. 2 of 2020 has been filed by the applicant

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for being joined as party respondent in the Special Civil

Application. Special Criminal Application No. 544 of 2019

has been filed with the following prayers:

"8(B) This Hon'ble Court be pleased to issue a writ of mandamus, and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction, directing the Respondents herein to act upon the representations of the Petitioner herein dated 14.09.2018, 01.10.2018 and 29.11.2018 and prefer complaints against the persons mentioned therein for offences under Section 181 and 182 of the Indian Penal Code, in accordance with Section 195(1) of the Code of Criminal Procedure."

4.1 In Special Criminal Application No. 4824 of 2019, the

prayer of the applicant is as under:

" 8(B) This Hon'ble Court be pleased to issue a writ of mandamus, and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction, directing the Respondent No.2 to decide the representation of the Petitioner dated 20.02.2019, conduct an inquiry pursuant to the same and take appropriate steps towards initiation of criminal proceedings in accordance with law."

4.2 For the purposes of brevity, arguments of Shri

I.H.Syed, learned Senior Advocate, as is evident from

reading the memo of the civil application are considered

for the purposes of deciding both, his civil application as

well as the Special Criminal Applications referred to

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hereinabove.

4.3 Mr.I.H.Syed, learned Senior Advocate, would submit

that the original owner - Dayakorben Maganbhai Patel,

was obliged to honour the agreement to sell dated

13.08.1999 entered into by and between the applicant

and Dayakorben Maganbhai Patel, original owner. The

applicant had filed a civil suit on 17.01.2004 being Special

Civil Suit No. 15/2004 before the learned Additional Senior

Civil Judge, Surat, seeking specific performance of

agreement to sell dated 13.08.1999. On 23.01.2004, the

applicant had got registered a lis pendens under Section

52 of the Transfer of Property Act. With a view to defeat

the proceedings, on 18.03.2004, the original owners

alienated the suit land by a registered sale deed in favour

of the petitioner of Special Civil Application No. 5315 of

2020. Pending the suit, interim injunction to the applicant

was refused. However, between the year 2004 and 2012,

when the suit was dismissed, development permissions

were sought for the Final Plot No. 56-A, the plot in

question and 56-B. On 23.12.2011, after the dismissal of

the suit, when the First Appeal was preferred by the

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applicant herein, this Court by an order of 23.12.2011,

granted injunction to the applicant in respect of the vacant

portion of land where the present towers were not

constructed on the condition of the applicant depositing 1

crore and furnishing a bank guarantee of 3 crores. On a

Special Leave Petition being preferred on 27.04.2012, the

Hon'ble Supreme Court was pleased to reduce the amount

from 3 crores to 1 crore and the injunction granted on

23.12.2011 which was up to 31.01.2012 was extended

while extending the time to furnish bank guarantee by

four weeks'. The first appeal though was dismissed on

24.09.2013, Special Leave Petitions were filed, wherein,

these orders were passed. The applicant deposited the

bank guarantee amount on 24.05.2012.

4.4 Despite there being an injunction by the Hon'ble

Supreme Court, wherein there was a specific mention as in

the order of the first appeal, the petitioner of Special Civil

Application No. 5315 of 2020 Laxmanbhai Jalu, applied for

revised development permission wherein an affidavit on

21.05.2012 was filed making a false statement declaring

that there was no order of stay / status quo operating

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upon the lands in question. He would rely on pages 148 to

152 of Special Criminal Application No. 544 of 2019 and

read the contents of the affidavit so filed. This false

declaration, therefore, not only made by the petitioner of

Special Civil Application No. 5315 of 2020 Laxmanbhai Jalu

was incorrect and relying on this false affidavit,

development permission was granted on 21.03.2013. The

First Appeal was partly allowed on 24.09.2013.

4.5 On a challenge made to the order of the First Appeal

by the applicant as well as by the petitioner of Special

Civil Application No. 5315 of 2020 on 12.09.2014, the

Hon'ble Supreme Court was pleased to record a statement

on behalf of the developer Laxmanbhai Jalu that no more

construction is to be made on the subject land and as

regards B-1 and B-2 although construction is completed,

finishing work is to be done. He would submit that in view

of the material misrepresentation made by the petitioner,

not only did the Corporation grant development

permission, but rightly rejected the request for Building

Use Permission because Building Use Permission if

granted, would amount to permit third party purchasers of

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the flats in question to occupy the same creating equities

in their favour who were third parties even to the pending

Special Leave Petition in the Hon'ble Supreme Court.

4.6 Mr.I.H.Syed, learned Senior Advocate, would submit

that the judgments relied upon by Mr.Shalin Mehta,

learned Senior Advocate, in context of N.A.Permission with

regard to the provisions of Section 65 of the Gujarat Land

Revenue Code whereas in context of development

permission and Building Use Permission if granted, would

amount to creation of third party rights / interests and

would be counter productive to Section 263 of the G.P.M.C

Act by permitting the occupants to occupy the flats on

completion of construction when the dispute pertaining to

the land itself is at large before the Hon'ble Supreme

Court.

4.7 Mr.I.H.Syed, learned Senior Advocate, would

therefore press for the prayers in the Special Criminal

Application with regard to a direction being sought to the

Surat Municipal Corporation to prefer complaints against

the petitioner of Special Civil Application No. 5315 of 2020

in accordance with Section 195(1) of the Criminal

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Procedure Code.

5 Mr. Kaushal Pandya, learned advocate appearing for

the Surat Municipal Corporation would support the orders

of denying Building Use Permission to the petitioner (of

Special Civil Application No. 5315 of 2020) on the

following grounds. He would submit as under:

5.1 He would submit that though the original owner had

applied for and granted development permission and also

the petitioner had applied for and had been granted

revised development permissions on the basis of

application made by the petitioner through his engineer

and architect, it was so granted on an undertaking filed by

the petitioner on 05.04.2012 that no litigations were

pending or no interim relief was granted in the litigations.

It is in this context that the communication relied for the

development permissions by Mr.Shalin Mehta, learned

Senior Advocate, has to be read.

5.2 Mr. Kaushal Pandya, learned advocate, would submit

that the deeming approval relied upon by Mr.Shalin Mehta,

learned Senior Advocate, under sub-section 2(b) of Section

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263 of the Act will not be applicable. He would invite the

attention of the Court to page 88 of the petition to submit

that on 03.01.2019, Building Use Permission was

specifically rejected. In fact, despite such rejection, the

petitioner continued to alienate the flats of towers B-1 on

and B-2 to the occupiers as a result of which notices had

to be issued on 25.07.2019. Flats were sealed in exercise

of powers under Section 268 on 31.12.2019 which was a

subject matter of challenge in Special Civil Application No.

194 of 2020 and Special Civil Application No. 4943 of 2020

which petitions have been withdrawn. Despite the

rejection of the Building Use Permission on 03.01.2019, it

was found by the Corporation that in the pending

litigations before the Hon'ble Supreme Court which are

related to the land upon which the buildings are

constructed, the petitioner had made misrepresentations

to the Corporation and it was on this count that the

impugned order dated 24.02.2020 had been passed by

the Corporation. The Corporation was not a party to this

proceedings, which was, however, brought to the notice of

the Corporation by the Special Criminal applicant.

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5.3 The petitioner was fully aware of the pendency of the

litigations and the injunctions, despite which he sought to

alienate the flats and created third party rights.

5.4 Mr.Kaushal Pandya, learned advocate, would rely on

the decision of the Hon'ble Supreme Court in the case of

Chanda C Kadam vs. Additional Collector &

Competent Authority, reported in 2013 (16) SCC 371.

Granting of Building Use Permission would amount to

creating third party rights without they being in knowledge

of the pending litigation, and therefore, the Building Use

Permission has rightly been refused.

6 Having considered the submissions made by the

learned advocates for the respective parties and the facts

narrated hereinabove, it would evidently make it clear

that the Final Plot No. 56-A in question is embroiled in a

web of litigations. It would be in the fitness of things to

reiterate the history of litigations with the relevant dates

which are as under:

6.1 The original owner of the land was one Dayakorben

Maganbhai Patel of Final Plots Nos. 56-A and 56-B. These

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plots were sold, or atleast an agreement to sell was

entered into by Babubhai Nadiyadra an applicant of Civil

Application No. 2 of 2020 in SCA No. 5315 of 2020 and

Special Criminal Application No. 544 of 2019 on

13.08.1999. Aggrieved by the dishonoring of this

agreement to sell, Babubhai Nadiyadra had filed a Special

Civil Suit No. 15/2004 before the learned Additional Senior

Civil Judge, Surat, seeking specific performance of

agreement to sell. Despite the pending litigation and

registration of lis pendens by Babubhai on 23.01.2004, the

original owner applied for development permissions for

constructing tenaments on 18.08.2004 which was granted

on 20.08.2004. In the interregnum, it appears that the

original owner sold plot No.56-A to the petitioner on

18.03.2004 through a registered sale deed. The

subsequent owner of the plots, applied for development

permission to construct high rise buildings, which were

granted in the year 2006-2007 respectively. Building Use

Permission for Tower 'C' was granted on 08.12.2008. In

order to undertake constructions of Towers "B-1" and "B-

2", the subject matter of the present petitions, the

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petitioner applied for revised development permission on

05.04.2012. Though interim injunctions were refused

pending the civil suit at the hands of Babubhai Nadiyadra,

on an Appeal From Order filed by him before this Court,

where the petitioner was a party, it was the case of the

petitioner that so far as Final Plot No. 56-A is concerned, it

was only Tower-"C" that was constructed, Tower "A" was

only up to the second floor. There was no construction

with respect to the Tower "B-1" and Tower "B-2". It was

under these circumstances, that a broad consensus was

arrived at in the Appeal from Order and the Appeal from

Order was disposed of. It will be relevant to reproduce

paras 3 to 5 of the order as under:

"3. It is an admitted position that the remaining portion of Final Plot No.56-A is concerned, the same is open land inclusive of there is no construction with respect to construction of Tower B/1 and Tower B/2.

There is a broad consensus between the learned advocates appearing on behalf of the respective parties more particularly appellants herein and the respondent No.5 purchaser that let the third and fourth floor of Tower-A be permitted to be completed by the respondent No.5 purchaser and there shall not be any further construction on the Tower-A as well as Tower B/1 and Tower B/2, and that any further transfer with respect to flats in Tower-C, the intending purchaser shall be informed by the respondent No.5 with respect to the pending proceedings/suit, and that any further transaction

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would be subject to the ultimate outcome of the suit in question. It is also agreed between the respective parties that there shall not be any transfer in any manner whatsoever any of the construction/flats of Tower-A. It is also further agreed by the parties that there shall not be any further transfer of plots so far as Final Plot No.56- B is concerned if there are any plots yet to be sold. Respondent No.5 who is personally present in the Court has filed an undertaking to the aforesaid effect.

4. Shri B.S.Patel, learned advocate appearing on behalf of the appellants has stated under the instructions from his client that he is agreeable to the above.

5. Under the circumstances, the present appeal from order is disposed of and the respondent No.5 is directed to act as per the undertaking dated 22.10.2008 which is directed to be taken on record. The impugned order passed by the learned 2nd Additional Senior Civil Judge, Surat passed below Exh.5 in Special Civil Suit No.15 of 2004 is hereby modified to the aforesaid extent. On furnishing the list of the transferees of the plots in Final Plot No.56- B as well as transferees of flat owners of Tower-C, it will be open for the appellants-original plaintiffs to submit the application before the learned trial court for joining them as party defendants in the suit and/or other applications for consequential relief, the same shall be considered by the learned trial court. It is observed that the aforesaid order is passed considering the broad consensus between the respective parties and their learned advocates and this Court has not considered the matter on merits of the case.

In the facts and circumstances of the case, the learned trial court is directed to decide and dispose of the suit, as expeditiously as possible, but not later than 31st March, 2010. The parties to complete the pleadings within a period of three months from

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today. All concerned are directed to cooperate the learned trial court in early disposal of the suit within the stipulated time as stated above."

6.2 Admittedly, therefore, the present petitioner

was conscious of the fact of the pending proceedings

esentially in context of Towers "B-1" and "B-2".

There was no construction to be made as recorded.

6.3 Though the civil suit of the plaintiff Babubhai

Nadiyadra was dismissed on 18.04.2011, on First

Appeal being filed being First Appeal No. 1643 of

2011, an interim order was passed by this Court,

which is being interpreted by both the parties

according to their perception. Reading of the order,

particularly relevant portion at paras 16 to 19 reads

as under:

"16. So far the vacant land is concerned, which is not in possession of the defendant Nos.6 to 71, we are of the view that the defendants should be restrained from changing the nature and character of the same during the pendency of the appeal, however, on condition that the plaintiffs will either deposit a sum of Rs.1 crore with the learned Registrar General of this Court or in the alternative, will give a Bank Guarantee of Rs.3 crore and will keep the said Bank Guarantee alive during the pendency of the appeal. If the plaintiffs decide to avail of the first option given to them, i.e., the deposit of money, the learned Registrar General will deposit the

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said amount of Rs.1 crore in any nationalised bank in a short term deposit and will go on renewing the same until further order of the Court.

17. In view of above deposit or security, if this appeal is ultimately dismissed, this Court may decide to pay compensation for the delay suffered by the defendants for this injunction order in the matter of construction over vacant land out of the aforesaid amount or the security that would be deposited by the appellant.

18. Let there be an unconditional order of injunction in respect of vacant portion of land as indicated above for a period till January 31, 2012. If within the aforesaid period, the plaintiffs either deposit a sum of Rs.1 crore or give a Bank Guarantee to the extent of Rs.3 crore, the interim order will continue in respect of vacant land subject to the above observations.

19. Let the hearing of the appeal be expedited. The appellants are directed to prepare eight copies of the informal paper-book containing all relevant papers used before the lower Court within four weeks from the date of service of notice of arrival of the lower Court record upon the learned advocate for the appellants. In default of filing of such paper-books within the aforesaid period, this appeal will stand dismissed. Parties are at liberty to mention for early hearing of the appeal.

Rule is made absolute accordingly. There shall be, however, no order as to costs."

6.4 Though the injunction on the land, i.e. vacant

portion on which now the Towers "B-1" and "B-2" are

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constructed was operating till 31.01.2012, which the

petitioner would want the Court to read, when a

challenge was made to this interim order by the

applicant of Civil Application No.2 of 2020 Shri

Babubhai Nadiyadra, the Hon'ble Supreme Court on

27.04.2012, passed the following order:

" We have heard Mr.Ashok H. Desai, learned senior counsel for the petitioners and Mr.C.A.Sundaram, learned senior counsel for the respondent No.5. Special Leave Petition is dismissed. However, in paragraph 18 of the impugned order the expression "or give a Bank Guarantee to the extent of 3 crore" shall stand modified as "or give a Bank Guarantee to the extent of one crore".

Further time of four weeks is granted to the petitioners for compliance of the direction contained in paragraph 18 of the impugned order. The High Court is requested to expedite the hearing of the First Appeal."

6.5 Reading the aforesaid order would indicate that

time to comply with the order and the directions

contained in para 18 were extended for a period of

four weeks. The stay, therefore, which according to

the petitioner stood expired on 31.01.2012 was infact

extended and the injunction operated.

6.6 Despite this, when an application for revised

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permission was made, an affidavit dated 21.05.2012

was filed by Laxmanbhai Jalu, the petitioner, for

development permission to construct Towers "B-1"

and "B-2". This was the construction which was

sought to be made on the vacant land. Reading the

affidavit dated 21.05.2012, (pages 148 to 152 of the

Special Criminal Application No. 544 of 2019) would

indicate that the petitioner had made a statement

that there is no order of Stay / Status quo operating

upon the land in question. Evidently this was a false

statement. The injunction which was granted by the

First Appellate Court on 23.12.2011 continued to

operate till the Appeal were so dismissed on

24.09.2013. However, the interim order of the

Hon'ble Supreme Court of 27.04.2012 which is

reproduced hereinabove should have been disclosed

as the injunction vide order dated 27.04.2012 was

operating on the date of filing of the affidavit i.e.

21.05.2012.

6.7 The arguments of Mr.Shalin Mehta, learned

Senior Advocate, that on the dismissal of the appeal,

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the order dated 23.12.2011 would merge is

misconceived.

6.8 On 12.09.2014 also when the matter was heard

before the Hon'ble Supreme Court, the learned

counsel for the present petitioner made a statement

that the entire FSI of the subject plot has been

consumed and now no more construction is to be

made on the subject land as regards B-1 and B-2

Towers and although the construction is completed,

finishing work is to be done. This was again a false

statement made knowing fully well that the

development permission itself was on the basis of a

false affidavit.

6.9 Admittedly, the litigations before the Hon'ble

Supreme Court in context of the lands in question,

including Final Plot No. 56-A on which Towers "B-1"

and "B-2" are pending final adjudication. Even while

not entertaining the First Appeal of Babubhai

Nadiyadra, the Division Bench of this Court had

strongly deprecated the conduct of the present

petitioner.

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6.10 Mr.I.H.Syed, learned Senior Advocate, rightly

pointed out this conduct by reading paragraph 56 of

the judgment and order dated 24.09.2013 in First

Appeal No. 1643 of 2011. It will be in the fitness of

things to reproduce paragraph 56 thereof, which

reads as under:

"56. We may now consider the aspect of conduct on the part of the defendants and more particularly defendants No.1 to 4 and defendant No.5, which will have the relevance in exercise of the discretion and also for exemplary damages and/or cost. Such circumstances, can be narrated as under:-

(a) Defendants No.1 to 4 prior to the expiry of the period of four years by non-discharge of statutory obligation, not only committed breach of the contract, but decided not to sell the land to the plaintiffs and entered into partnership deed with Shri Shankerbhai on 30.1.2001 by execution of the document at Exh. 264;

(b) The suit was filed by the plaintiffs against defendants No.1 to 4 on 17.1.2004 and the lis pendens to that effect for application of Section 52 of the Transfer of Properties Act was registered on 23.1.2004. Once the lis pendens was registered, the person, who is to purchase the property is put to notice about the pendency of the suit through a public document by registration thereof. It has further come on evidence that the public advertisement was also issued by the plaintiffs showing pendency of the suit and the rights being agitated based on the agreement to sell in the competent Court. In spite of the aforesaid lis pendens duly registered with the SubRegistrar and the

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defendants No.1 to 4 and also defendant No.5, who is purchaser of the property duly put to notice through registration of the lis pendens by overreaching the judicial process sale deed dated 20.1.2004 has been executed by defendants No.1 to 4 in favour of the defendant No.5, so as to create not only obstacle or hindrance in the proceedings of the suit, which had already commenced but through sale deed on March 20, 2004, it has been attempted to frustrate the suit. The surprising aspect is that in the sale deed dated 20.3.2003 the sale consideration in favour of defendant No.5 is said to have been paid of Rs.4 lac. Whereas prior thereof, in another suit No.43 of 2004 filed by defendant No.5 against defendants No.1 to 4, a statement on oath has been made by defendant No.5, who was plaintiff therein, that the land is agreed to be purchased by him for the total consideration of Rs.77,63,661/-, out of which he has already paid the amount of Rs.60 lac until the date of the suit and the remaining amount of Rs.17,63,761/- is to be paid. If the consideration paid was of Rs.77,63,661/-, defendant No.1 to 4 could not have stated in the sale deed that the total consideration received by them is of Rs.4 lac only. This shows that the sale deed has been executed by the defendants No.1 to 4 and the sale deed is got executed by defendant No.5 to frustrate the rights of the plaintiffs in the land based on the agreement to sell between the plaintiffs and defendants No.1 to 4;

(c) The oral evidence led with documentary evidence produced by Defendant No.5 show that as per defendant No.5, total sale consideration paid is of Rs.77,63,611/-. This shows that a manipulation is made by defendant No.1 to 4 in collusion with defendant No.5 by declaring a consideration falsely of Rs.4 lac as against Rs.77,63,661/- before public

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authority of Sub-Registrar.

(d) The agreement to sell between defendants No.1 to 4 and defendant No.5 has come on record at Exh. 264 and as per the said agreement to sell the last page shows the payment and the receipt thereof. As per the receipt up to 5.11.2003, the amount of Rs.60 lac was paid to defendants No.1 to 4 by defendant No.5 and the amount of Rs.6 lac on 10.12.2003, Rs.6 lac on 8.1.2004, Rs.5,63,761/- on 12.2.2004, total Rs.17,63,761/- was already paid by defendant No.5 to defendants No.1 to 4 on or before 12.2.2004, whereas a false statement is made in the proceedings of Special Civil Suit No.43/2004 preferred by the defendant No.5 against defendants No.1 to 4, on 20.2.2004, i.e. the date on which the suit is filed, that defendant No.5 is yet to pay the amount of Rs.17,63,761/-. A show is made that full consideration is not paid, though defendant No.5 had already paid the balance consideration to defendants No.1 to 4 as per Exh. 264. The most relevant and pertinent aspect is that not only false statement on oath has been made by defendant No.5 at paragraph 2 of the plaint as well as at paragraph 2 of the application for temporary injunction, but has made the said statement upon verification even in the record of proceedings of Special Civil Suit No.43 of 2004.

(e) The aforesaid shows that in the proceedings of Special Civil Suit No.43 of 2004 a show is made as if a dispute exists between defendant No.5 and defendants No.1 to 4 for specific performance of the contract and pending the suit the aforesaid sale deed is got executed by defendants No.1 to 4 in favour of defendant No.5, that too, by showing the bogus amount of Rs.4 lac as the sale consideration as against the real consideration of Rs.77,63,661/-.

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(f) In our view, the aforesaid circumstances clearly goes to show that the defendants No.1 to

seriousness of the Court proceedings, have taken the Court proceedings for a jolly ride, not only by frustrating the rights of the plaintiffs in the suit, but have created a situation, which results into frustrating the Court proceedings and that too, in open defiance to the law by making false declaration before the Court in the proceedings of Special Civil Suit No.43/2004 and also before a public authority, SubRegistrar when the aforesaid sale deed has been executed on 18.3.2004.

(g) Apart from the above, the agreement to sell between defendants No.1 to 4 and defendant No.5 has come on record at Exh.264 and in the original document, notary Kalpana C. Vyas has stated as signed before her on 7th September, 2003, whereas the plaintiffs' witness Kiritkumar Maganlal Patel, in his cross-examination dated 3.3.2011 in the present suit has stated on oath that the said agreement to sell was only signed and not notarized and he has specifically denied any incident of going before the notary had taken place. Either the statement on oath by Shri Kiritkumar Maganlal Patel - Exh. 224, witness on behalf of defendants No.1 to 4, in his crossexamination, is false or document produced at Exh. 264 for showing the notarization of signature before the notary is fabricated.

(h) In addition to the above, even if the matter is considered in light of the evidence produced by defendant No.5 at Exh. 262 and document produced in support thereof with the evidence of Harjibhai Muljibhai Gadiya on behalf of the remaining defendants at Exh. 342 - 349, the same is also in doubtful circumstances,

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inasmuch as in September 2003, the T.P.

Scheme was not finalized and it was at draft stage. Even if we consider the statement made at bar that the draft scheme was submitted to the State Government, the receipts for sale of the land of so-called Hardik Park specifically mentioned T.P. Scheme No.46, Final Plot No.56B. Such could not be printed until T.P. Scheme was finalized. If T.P. Scheme, in any case, was not finalized, it may mean that the receipts were prepared after the T.P. Schemes were finalized, but the same is back-dated. Not only that but there is over-writing in the year in the original receipt at Exh.342 and Exh. 349, which are stated to have been issued in favour of Maduben Hirjibhai Gadiya.

(i) The land in question is converted for nonagricultural use of residence as per the permission granted on 24.8.2005. The development permission is granted by Surat Municipal Corporation only on 28.12.2006 for construction of the plan on Plot No.56A. Part payment made of the flats as if the booking is already made prior to the date of the suit, in our view, are the circumstance which clearly go to show that all attempts are made in collusion with other remaining defendants, who are stated to be allottees of the plots or flats, as the case may be, to frustrate the present proceedings for specific performance of construction and irreversible situation is created."

6.11 Even paragraphs 57 and 58 also when read

as reproduced under would indicate that the Court

observed that the present petitioner - defendant

No.5 in the suit had made false statements in the

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Court proceedings and the principle of lis pendens

should squarely apply. Paras 57 and 58 reads as

under:

"57. Considering the matter in either way, we do find that the trial Court could not ignore the aforesaid important aspect and such conduct on the part of the defendant No.1 to 4 in collusion with defendant No.5 calls for appropriate penalty and also action against the person concerned.

58.We do find that if the aforesaid facts and circumstances are considered, it can be said that after the suit was filed defendants No.1 to 4 in collusion with defendant No.5 and remaining defendants have undertaken all actions to frustrate the Court proceedings so as to render them infructuous. Not only that but defendants No.1 to 4 as well as defendant No.5 have made false statement in the proceedings of the Court as well has have gone to the extent of producing the fabricated record of a notarized document before this Court. We find that the principle of lis pendens should squarely apply as provided under Section 52 of the Transfer of Properties Act, so as to make the property available for recovery the amount of compensation."

6.12 The judgments relied upon by the learned

counsel for the petitioner are in context of N.A.

Permission under Section 65 of the Gujarat Land

Revenue Code. They would not be applicable to the

facts of the case. Admittedly, by making a false

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declaration not only were the flats constructed for

which development permission was sought and a

revised one on the basis of a false affidavit dated

21.05.2012 granted stating that no stay or

injunction operated, when in fact, reading the order

dated 27.04.2012 of the Hon'ble Supreme Court

makes it clear that the injunction which was initially

granted pending the First Appeal operated and was

still in force. Despite the Building Use Permission

having been rejected in the first round of January

2019, the petitioner alienated flats in favour of third

party occupiers as a result of which the Corporation

had to issue Notice on 25.07.2019 and take action of

sealing the building on 31.12.2019. This had

prompted the owners to come forth and file Special

Civil Application No. 194 of 2020 and 4943 of 2020

which have subsequently been withdrawn.

6.13 Disputes regarding title and interests qua

the land upon which the subject premises i.e.

Towers "B-1" and "B-2" are constructed is pending

before the Hon'ble Supreme Court. N.A.Permissions

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which were the subject matter of the decisions

relied upon by Mr.Shalin Mehta, learned Senior

Advocate, cannot be relied upon in the context of

Building Use Permissions because such

permissions / occupancy certificates would

tantamount to give the occupiers right to occupy

flats and create third party interests in properties by

purchasers who may be unknowingly made parties

without their knowledge about the litigation pending

before the Hon'ble Supreme Court. The Corporation

being a statutory authority, therefore, acted in

public interest in denying Building Use Permission to

the petitioner by the impugned order dated

24.02.2020.

7 Special Civil Application No. 5315 of 2020 is

accordingly dismissed. Now, we, therefore, are

concerned with the prayers made by the petitioner

of Special Criminal Application No. 544 of 2019 and

4824 of 2019. In the earlier part of the decision, the

prayers have been reproduced. The Jahangirpura

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Police on a request made by the Corporation carried

out investigation and a report has been filed by the

Jahangirpura Police on 13.12.2018 which is a part of

the affidavit-in-reply filed by the petitioner to the

civil application for joining party. Reading of the

report would indicate that the Police Inspector after

carrying out necessary investigation came to the

conclusion that the nature of the allegations in the

complaint are of civil nature and the proceedings

are pending before the parties in the Hon'ble

Supreme Court. Even the Real Estate Regulating

Authority (RERA) has dismissed the application of

the petitioner on 06.02.2020. The Vigilance

Commission has also accordingly passed an order on

20.12.2018.

8 Having considered the factual narratives on

behalf of the applicant of the Special Criminal

Application and based on report of the Police

Inspector and the events subsequent thereto, the

Criminal Applications are not entertained and are

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accordingly dismissed.

In view of dismissal of the main matters, civil

applications also do not survive and stand disposed

of, accordingly. Interim relief, if any, stands vacated.

(BIREN VAISHNAV, J) Bimal

FURTHER ORDER

After the pronouncement of judgment, Mr.Shalin

Mehta, learned Senior Counsel, requested that

interim relief granted earlier, may be extended. The

said request is rejected.

(BIREN VAISHNAV, J) Bimal