Pareshbhai Dhirajlal Thakkar vs Radhanpur Nagarpalika
2022 Latest Caselaw 3518 Guj

     C/SCA/1709/2022                            JUDGMENT DATED: 25/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1709 of 2022

                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
             In R/SPECIAL CIVIL APPLICATION NO. 1709 of 2022
                                  With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 2 of 2022
             In R/SPECIAL CIVIL APPLICATION NO. 1709 of 2022
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 1838 of 2022
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 5212 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                 Sd/-

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

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

2     To be referred to the Reporter or not ?                       Yes

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       PARESHBHAI DHIRAJLAL THAKKAR
                                  Versus
                          RADHANPUR NAGARPALIKA
==========================================================
Appearance:
MR YATIN OZA, SENIOR ADVOCATE WITH
MS PRACHI J THAKKAR(10114) for the Petitioner(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 1
MR.D K.PUJ(3836) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
MR AMIT JOSHI, ADVOCATE for the petitioner in SCA NO.1838 OF 2022
MR S P MAJMUDAR, ADVOCATE for the petitioner in SCA NO.5212 OF
2022


                                 Page 1 of 15

                                                     Downloaded on : Mon Mar 28 21:30:49 IST 2022
      C/SCA/1709/2022                                  JUDGMENT DATED: 25/03/2022



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

 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 25/03/2022

                               ORAL JUDGMENT

1. Rule. Learned advocate Mr.Deepak Sanchela waives service of rule for the respondent no.1. Learned advocate Mr.D.K.Puj waives service of rule for the respondent no.4. Mr.Ayaan Patel, learned AGP waives service of rule for the respondent-State.

2. These three petitions and the Civil Applications are arising out of the same subject matter, and therefore, at the request of learned advocates for the respective parties, the same are taken up for joint hearing and final disposal.

3. The facts are recorded from the lead matter i.e. Special Civil Application No.1709 of 2022.

4. At the outset, it is noted that, as the hearing had partly taken place by virtual method, in place of affidavit-in-reply on behalf of the private respondents, the averments made in Civil Application No.2 of 2022 will be treated to be the response of the private respondents to the petition. All the parties are agreeable to this proposition.

5. Special Civil Application No.1709 of 2022 is filed with following prayer(s):-

"8(A) This Hon'ble Court may be pleased to admit and allow the present petition.

(B) This Hon'ble Court may kindly be pleased to issue a writ of certiorari or in the nature of certiorari or any other

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

appropriate writ, order or direction thereby quashing and setting aside the impugned order dated 30.07.2018 passed by the Deputy Collector, Radhanpur as well as the impugned order dated 05.03.2021 passed by Area Development Authority, Patan and thereby direct the respondent authority not to demolish / dispossess the present petitioner from Shop No.4 situated at Revenue No.377/B/6, City Survey No.6553 admeasuring total area about 2934 Sq.mtr. Land at Radhanpur, Tal:Radhapur, Dist:Patan in pursuance of the above referred orders.

(C) Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may kindly be pleased to stay the implementation, execution and operation of the impugned order dated 30.07.2018 passed by the Deputy Collector, Radhanpur as well as the impugned order dated 05.03.2021 passed by Area Development Authority, Patan or grant status quo qua the demolish/dispossess the present petitioner from Shop No.4 admeasuring total area of 165 Sq.ft. which is 15.32 Sq.mt. situated at Revenue No.377/B/6, City Survey No.6553 admeasuring total area about 2934 Sq.mt. land at Radhanpur, Ta:Radhanpur, Dist:Patan in the interest of justice.

(D) Ad-interim relief in terms of Paragraph No.8(C) may kindly be granted.

(E) ...."

6. Special Civil Application No.1838 of 2020 is filed with following prayer(s):-

"10(a) Your Lordships may be pleased to admit and allow the present petition.

(b) Your Lordships may be pleased to issue a writ of mamdamus or certiorari or writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction by considering the application/representation dated 10.12.2021 under the provisions of Section 185 of the Gujarat Municipalities Act, 1963 for removing an unauthorized construction on the regular survey no.377/B/ 6, City Survey No.6553, Near Radhanpur Highway Cross Road by the respondent no.3 in the interest of justice.

(c) Pending admission and final hearing of the present petition, Your Lordships may kindly be grant status-quo on the construction mentioned into the application at Annexure-A to this petition situated at the regular Survey No.377/B/6, City Survey No.6553, Near Radhanpur Highway Cross Road in the interest of justice.

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

(d)...

(e) ..."

7. Special Civil Application No.5212 of 2022 is filed with following prayer(s):-

"18(A) Your Lordships may be pleased to issue a writ of certiorari /mamdamus or writ in the nature of certiorari/mandamus and/or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 30.07.2018 of the Deputy Collector and order dated 05.03.2021 of the Area Development Authority, Patan as well as quash and set aside consequential plans sanctioned by virtue of the said impugned orders and direct the respondents not to demolish and dispossess the petitioner from Shop No.5 situated at Survey No.5 situated at Revenue Survey No.377/B/6, City Survey No.6553 at Radhanpur, Dist:Patan in pursuance to the above orders in the interest of justice;

(B)...

(C) ..."

8. Essentially, the petitioner is therefore challenging the revised plan for development in Revenue Survey No. 377/B/6, City Survey No.6553 of Radhanpur ("Subject Plot" for short) which was passed for the purpose of "small center" under the office order dated 30.07.2021 and the subsequent revised plan dated 05.03.2021 by Area Development Authority.

9. It is the case of the petitioner that the petitioner is the owner and occupier of a shop, which was purchased by the petitioner from the respondent no.4 and which was one of the 7/10 shops developed by the respondent no.4 as per the plan sanctioned on 25.07.1979 by the District Development Officer on the subject plot.

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

10. It is the case of the petitioner that in connection with the subject plot in the Year-1974, the respondent no.4 had received N.A.Permission with the layout plan for residential premises, which was approved in the Year-1974 and after period of 5 years, the respondent no.4 had sought revision of the development permission by the District Development Officer and the same was granted for putting up a commercial complex. The petitioner, under a sale-deed dated 31.12.1988, is a bonafide purchaser of Shop No.4 admeasuring 165 sqr.ft. on the subject plot.

11. It is submitted that the shop of the petitioner has been in existence since last 33 years and the respondent authorities have recognized such existence by assessing the property and issuing regular municipal tax bill which the petitioner has been paying.

12. It is submitted that the respondent no.4 in a surreptitious manner has applied for revised development permission of entire City Survey No.6553 and such plan came to be sanctioned on 05.03.2021. The petitioner has not placed the order dated 05.03.2021 passed by the Area Development Authority on the record along with the petition, however, the same has come on record by way of an affidavit of the respondent no.4.

13. Learned Senior Advocate for the petitioner has argued that the application for Revised Development Permission was based on forged and fabricated documents viz. the application for Revised Development Permission was accompanied with consent letters purportedly by the father of the petitioner in whose favour

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

the shop was transferred by the sale-deed.

14. It is the case of the petitioner that the signature on such consent letter is forged signature, as consent letter is dated 28.06.2018, whereas the father of the petitioner had expired on 17.02.2018 i.e. 4 months prior to the consent letter which was notarized.

15. Learned Senior Advocate submits that the effect of sanctioning the plan and granting the Revised Development Permission will be that the petitioner shop, which was developed as per the permission granted way back in the Year 1979 will have to be demolished, and therefore, before granting such permission, the petitioner, who is adversely affected ought to have been given an opportunity of hearing. It is submitted that the respondent no.4 and officers of the authorities are hand in glow, and therefore, the revised development plan of the year 2018, which is placed on Page No.18 to the petition shows the plot of land on which the shop of the petitioner and other shops are existing to be a parking area, meaning thereby, by showing parking area exactly on the place where the shop exists the plan was passed for developing the rest of the plot lands.

16. Learned Senior Advocate has drawn attention of this Court to the consent letter and also to the order for development permission dated 30.07.2018 particularly to Clause-6 to show the existence of the shops, which were shown falsely to be in dilapidated condition and the consent letters of the owners and occupiers of the 6 shops out of the 10 existing shops.

17. Learned Senior Advocate has drawn attention of this Court to the photographs about the existence of the shops of the

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

petitioner and other 10 shops and the development which has rapidly taken place on the backside.

18. Learned advocate Mr. S.P.Majmudar adopted the arguments submitting that the shop of the petitioner is adjacent to that as the petitioner of the main petition.

19. As against this, the learned advocate for the respondent no.1 has submitted that the petitioner has directly approached this Court despite there being an alternative remedy under Section 6(B) of the Town Planning Act. It is submitted that even if any dispute is arisen then the same has to be raised before the Appeal Committee. It is submitted that the respondent no.4, who is the original builder has put an application in the ODPS Portal and after taking into consideration the application and the necessary provisions of law applicable, has sanctioned the plan which the Chief Officer of the Municipality will communicate after carrying out necessary verification from the documents available with the respondent authority.

20. Learned advocate for the respondent authority has submitted that considering the layout plan dated 30.07.2018 passed by the Collector, there exists a road with 12.3 mtrs width, and therefore, existence of the shop in question is also not in accordance with the layout plan.

21. Learned advocate for the respondent no.4 relying upon the averments made by him in his application submitted that by misleading the Court, the petitioner has secured the order dated 28.01.2022. It is submitted that deliberately the development permission dated 05.03.2021 was not annexed. It is submitted that the proposed revised layout and building plan of the

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

shopping center bearing Inward No. 1626594 and sanctioned by the Nagarpalika would indicate that the shop of the petitioner is not shown in the parking area, as the parking area is altogether at a different place, as approved in the revised layout plan, but deliberately the petitioner has mislead the Court by showing the plan, which is a revised plan for the purpose of N.A.Permission, which has nothing to do with the development permission, as the same is independent.

22. According to the petitioner, the only relevant will be the development permission by the Area Development Authority / Radhanpur Nagarpalika. It is submitted that the entire plot of land where the construction of the petitioner and others shops exists have been left out of the development plan applied by the respondent no.4, and therefore, it cannot be said that the action of the respondent authority is illegal and would affect the right of the petitioner and that the shop of the petitioner would be demolished because of sanctioning of the development plan and grant of development permission.

23. In so far as the submission regarding forged signature on the consent letter is concerned, the learned advocate for the respondent no.4 submitted that he has denied any responsibility for producing such consent letter along with his development permission by stating that the stamp paper was purchased by someone else by using the name of the respondent no.4, but the respondent no.4 himself is not aware. It is submitted that the other shops owners have given their respective affidavits in support of the respondent no.4.

24. Learned advocate for the respondent no.4 has drawn

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

attention of this Court to the development permission to demonstrate that the entire development permission and the sanctioned plan is an independent plan, which provides for all the facilities of parking, open space etc. as per the requirement of GDCR, and therefore, such development will not interfere in any right of the petitioner.

25. Learned advocate Mr.Amit Joshi has adopted the arguments made on behalf of respondent-Nagarpalika and respondent no.4.

26. As against this, in rejoinder, the learned Senior Advocate submitted that the respondent authorities' reply is clearly indicative of the fact that the petitioner and the officers of the respondents are clearly hand in glow. The nature of reply does not gives out the real situation nor does it categorically state in so many words that the development permission will directly affect the existence of the very shop of the petitioner. Even if plan is sanctioned by the Nagarpalika is taken into consideration, it will be evident that the Respondent No.4 has mislead the authority by not showing the existence of the structures like the shop of the petitioner and other shops on the very plot of land, as if it is shown as open plot of land.

27. Learned AGP has placed on record the communication dated 08.03.2022 by the Deputy Collector, Radhanpur addressed to the Office of Government Pleader along with the layout plan signed by the Deputy Collector, Radhanpur.

28. Having considered the rival submissions of the learned advocates for the respective parties and having perused the

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

documents on record, the subject plot being Revenue No. 377/B/6 of City Survey No.6553 admeasuring total area about 2934 Sqr.Mtrs of Radhanpur was converted into non-agriculture vide order dated 10.10.1974 initially for the purpose of residential premises. The N.A.Permission was thereafter revised in the Year-1979 and the District Development Officer, vide order dated 25.09.1979 revised the N.A.Permission for the purpose of a shopping center. The sanction plan was dated 25.09.1979 and the map placed on Page No.66 shows the existence of 10 shops on the very plot of land running parallel to the public road.

28.1 The father of the petitioner has purchased one of the shops by sale-deed dated 31.12.1988 i.e. Shop No.4 admeasuring total area about 165 Sqr.ft.

28.2 It appears that in the Year-2018, there was another application for revised N.A. Plan, which was sanctioned by the Town Planner of Patan by Communication No.NABP/Radhanpur/784 dated 31.05.2018 and the Layout Plan indicates the place of where the shops existed to be parking- D 165.48 Sqr.Mtrs. The development permission (Form No.D) dated 05.03.2021 though not accompanied with the development plan, the Court has taken into consideration such plan which is placed along with Civil Application filed by the respondent no.4. The said plan would make an interesting reading and as it appears and submitted by the respondent no.4 that the portion of the entire plot on which existed the shops as per the revised N.A. Plan is shown has not included in the plan for development of the subject plot, and therefore, only, in the plan, the said area is kept blank. By this, it is sought to be conveyed that the respondent no.4 when he placed a plan for

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

sanction for the development permission with the authority, he had excluded that portion of land, and therefore, his development will not affect the existence of the shops. At the most, if the road is widened and if the shop of the petitioner would fall in the building control line in that case only, the shop of the petitioner will be subjected to demolition and for such reason, sanctioning of the plan and granting the revised development permission will have no effect.

28.3 At this stage, it would be appropriate refer to Gujarat Comprehensive Development Control Regulation, 2019 particularly Clause 8.2.6 which pertains to contribution of land for any development in the Non T.P. Areas, which provides that for development in conformation with Zoning where the Town Planning Scheme is not declared, the competent authority shall enforce the applicants to contribute land admeasuring up to 40% in aggregate for all categories except D8 and D9 of its plot / building unit to the competent authority for providing roads, public purpose and multipurpose activity.

29. Considering the fact that subject plot is within the area of Radhanpur, the aforesaid clause will apply with full force, meaning thereby, the respondent no.4 at the time of putting a development plan, has to contribute 40% of the land to the authorities. The purpose behind it appears to be that as and when the Town Planning Scheme is framed then the authority will have the sufficient land balance for the proper planning of the T.P.Scheme.

30. From the report submitted along with the Civil Application of Respondent No.4, the class of the authority mentioned is "D- 7" for Radhanpur Area Development Authority. Once-again

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

reverting back to the development plan sanctioned, the area statement consists of column for deduction under various heads and if deduction for the purpose of any reservation is seen then the area mentioned against it is 369.42 Sqr.Mtrs which exactly coinsides with the area, which is kept out of the development plan in the plan submitted by the respondent no.4 (See Page No.56 of the Civil Application).

30.1 Therefore, this Court has reasons to believe that an attempt of the respondent no.4 to get the development permission as per the sanctioned plan is to show the part of the plot sought to be developed after the deduction for reservations, and therefore, only, the apprehension of the petitioner is not unjustified. The Court has also reasons to believe that the respondent no.4, who is builder and the Chief Officer, who has filed an affidavit before this Court are well aware of the issue, but have not come forth to bring this to the notice of the Court. In future, as and when the Scheme will be framed, the development of part of the plot would be as per the sanctioned plan, but will not consist of the shops, which are in existence since 1979 as per the plan sanctioned at the time of N.A.Permission and which are in actual existence, and therefore, as a natural consequence, the shops would have to be shown on a plot of land, which is reserved when the development permission impugned before this Court is granted. Therefore, the stand taken by the Chief Officer before this Court as well as the respondent no.4 hides more then it reveals.

31. The aforesaid aspect is further fortified by the issue of the consent letter purportedly signed by the father of the petitioner

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

giving consent for making an application for development permission. The Court finds sufficient grounds to believe the contention of the petitioner that the consent letter was not bearing the signature of father of the petitioner simply because the date of the consent letter is 28.06.2018, whereas the father of the petitioner has expired on 17.02.2018. Moreover, the denial by the respondent no.4 simply sitter is on the ground of stamp being purchased by someone else in the name of the respondent no.4 is also not palatable.

32. The Court has reason to believe that in near future the area in question would be subjected to Town Planning Scheme, and therefore, only, in a hot haste the respondent-Nagarpalika has acted and has taken up a stand before this Court with an open eyes that as and when the Town Planning Scheme will be framed automatically, the portion of the subject plot where the shops of the petitioner existed as per the sanctioned plan of 1979 would come under the heading of reservation.

33. The affidavit of the Chief Officer hides more than what it reveals and cannot be termed to be an affidavit, which is forth right before the Court. On an affidavit a ground is sought to be created that the development plan order submitted by Online Portal and the decision was taken at Gandhinagar and the deponent was only communicating authority, but as a matter of fact, the entire record with regard to history of the subject plot would be with the local authority viz. Nagarpalika, which would indicate the history from 1979 and the existence of the shops as per the development permission given way back in the Year- 1979, and therefore, when ultimately the development permission given and the plan is sanctioned, it is the

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

responsibility of the authority to compare the plan, which is received after preliminary sanctioned by the Online Development Portal and compare the same with the existing record with the authority. Had it been done by the responsible officer of the Nagarpalika, the issue would have been cleared and would have been a better assistant to the Court.

34. On one hand, the respondent no.4 has taken up the contention that while making the application for revised development and placing the plan for sanctioning the entire portion of the land consisting of the shop was kept out of the development permission while on the other hand, the permission granted for N.A. Revised Permission in 2018 consisted of a consent letter, which is forged, and therefore, the contention that the sanctioned plan as per the N.A.Permission has nothing to do with the development permission by the Nagarpalika will fly in the face, as the revised sanctioned plan for N.A.Permission itself is based on a forged document. One more aspect, which is required to be considered is that in the revised N.A.Permission, the sanctioned plan shows the portion of the land where shop in question land exist to be the parking area, and therefore, intention of the respondent no.4 was very much clear.

35. A submission was also made regarding a huge investment already made by the respondent no.4 in the construction so far, and therefore, any interference will put the petitioner to a great disadvantage. Considering the fact that the development permission was granted on 05.03.2021, the construction would not have reached to a position that it cannot be reversed or be putting respondent no.4 in an irreversible position.

C/SCA/1709/2022 JUDGMENT DATED: 25/03/2022

36. In view of aforesaid fact situation, the order dated 30.07.2018 passed by the Deputy Collector along with the layout plan is ordered to be quashed and set aside. Over and above, the Development Permission dated 05.03.2021 in Case No.1626594 along with the plan sanctioned by the Chief Officer of Radhanpur Nagarpalika is ordered to be quashed and set aside.

In Special Civil Application No.1709 of 2022 and Special Civil Application No.5212 of 2022 Rule is made absolute to the aforesaid extent. Special Civil Application No.1838 of 2022 stands disposed of.

At this stage, the learned advocate for the respondent no.4 requests for stay of this order, as he apprehends as a consequence of this order, when the Development Permission is ordered to be cancelled, the respondent-authorities may initiate steps to remove the construction.

Considering the request to be reasonable, the respondent- authorities are directed not to initiate any action pursuant to this order for the period of four weeks.

Sd/-

(A.Y. KOGJE, J) GIRISH