M/S Shreeji Developers vs State Of Gujarat
2022 Latest Caselaw 9077 Guj

    C/SCA/9584/2022                                   CAV JUDGMENT DATED: 13/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 9584 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

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 ?

========================================================== M/S SHREEJI DEVELOPERS & 1 other(s) Versus STATE OF GUJARAT & 3 other(s) ========================================================== Appearance:

RUSHABH H SHAH(7594) for the Petitioner(s) No. 1,2

MR NILESH A PANDYA(549) for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 1,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 13/10/2022 CAV JUDGMENT

1. The present petition, under Article 226 of the

Constitution of India, is filed by the petitioners

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challenging the order dated 29.04.2022 passed by the

Deputy Town Development Officer, Vadodara -

respondent No.3 herein, whereby the respondent authority

has put on hold the development permission (Rajachitthi)

dated 18.02.2022.

2.1 Brief facts of the case are as such that; one

Koyabhai Melabhai Rathodiya was holding the land

bearing Survey Nos.5, 265, 268, 566, 583, 286, 37 & 99

situated at Village Vadsar, Taluka and District Vadodara.

2.2 Since, said Koyabhai Melabhal was unable to render

service to the State because of his old age, an order

dated 05.12.1958 was passed bearing Taluka Vatan

No.1967 of 1958 mutating the name of his son -

Mohanbhai Koyabhai Rathodiya in respect of said lands

held by Koyabhai Melabhai on the condition that he will

not be entitled to mortgage, sell or gift the land and on

further condition that he continues to provide service

which was being provided by his father Koyabhai

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Melabhai.

In view of the above order dated 15.09.1958, the

effect was given in the revenue record vide mutation

entry No.513 and the same was later certified on

24.01.1962.

In or around the year 1961, Koyabhai Melabhai

passed away and his name was deleted pursuant to

mutation entry No.513, but, i.e. Mohanbhai Koyabhai

Rathodiya, Ramabhai Koyabhai Rathodiya & others

names of legal heirs of Koyabhai Melabhai were not

brought on record.

2.3 In view of Government Notification No.V.1.W.1061

dated 31.07.1962, the persons in service were relieved,

therefore, the name of the State was mutated in the

revenue record in respect of the aforesaid survey

numbers, as first name in first record of right (Pahela

Hak ma') and the name of Mohanbhai Koyabhai

Rathodiya was retained as second name in second record

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of right ('Bija Hak ma') below the line. The relevant

mutation entry in respect of the above notification was

passed on 21.09.1962 being Entry No.656.

2.4 On 12.07.1988, Mohanbhai Koyabhai Rathodiya died,

and thereafter, names of his legal heirs i.e. Shantilal

Mohanbhai, Arvindbhai Mohanbhai, Janaben Mohanbhai,

Savitaben Mohanbhai, Shardaben Mohanbhai and

Laxmiben Mohanbhai were entered into the revenue

record vide mutation entry No.1832 on 10.08.1988 as

joint occupants and the entry No.1832 was mutated and

certified on 30.11.1988.

2.5 Thereafter, one Ramanbhai Ramabhai Rathodiya, son

of Ramabhai Koyabhai Rathodiya preferred revenue

proceedings before the Deputy Collector, Vadodara by

challenging Entry No.1832.

The Deputy Collector, vide its order dated

30.04.1993, rejected the revision application.

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The said order came to be challenged by Ramanbhai

Rathodiya by filing RTS Appeal before the Collector,

Vadodara, which also came to be rejected by the

Collector, Vadodara vide order dated 08.09.1993.

Being aggrieved by the said order, Ramanbhai

Rathodiya preferred revision application before the

Special Secretary, Revenue Department, which also came

to be rejected vide order dated 12.09.2001.

2.6 Said Ramanbhai Ramabhai Rathodiya filed Special

Civil Suit No. 12 of 1992 before the Court of Civil

Judge (S.D.), Vadodara against Shantilal Mohanbhai

Rathodiya, other legal heirs of Mohanbhai Koyabhai

Rathodiya, Bhaijibhai Koyabhai Rathodiya and others. In

the said proceedings, it appears that pursuant to the

consent terms purportedly arrived at between the parties,

a consent decree was passed in the said suit on

16.07.1993.

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As per the consent terms, 1/3rd share in the said

properties comes to Bhaijibhai Koyabhai Rathodiya, 1/3rd

share comes to heirs of Mohanbhai Koyabhai Rathodiya

and remaining 1/3rd share comes to the heirs of

Ramanbhai Koyabhai Rathodiya.

Further, on basis of the above referred consent

decree, mutation entry no. 2570 was mutated in the

revenue record on 20.12.1996.

This mutation entry was, however, rejected on the

ground that the land was of new tenure and no

permission of competent authority, as stipulated under

Section 5 of the Act, was sought for before partition of

the said parcels of land.

2.7 In view of the above, the property in question

continued to remain in the revenue records only in the

name of heirs of Mohanbhai Koyabhai Rathodiya.

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2.8 On death of Shantilal Mohanbhai Rathodiya on

17.01.1997, mutation entry No.2949 was recorded in the

revenue records for bringing his legal heirs on record as

joint holders of the aforesaid properties.

2.9 On 04.03.2014, again on basis of the purported

consent decree dated 16.07.1993 in Special Civil Suit

No.12 of 1992, mutation entry bearing No.3788 was

mutated in the revenue record in respect of the aforesaid

lands.

While certifying, however, it was stated that

pursuant to the notice under section 135D, it was

mentioned that some of the persons to whom notice was

issued had not agreed to the mutation entry and

accordingly the said mutation entry was certified only to

record the same in the column of other rights.

2.10 Thereafter, an application is filed by one

Arvindbhai Mohanbhai Rathodiya and others before the

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Collector, Vadodara, and the Collector passed an order on

23/27.10.2015 granting permission for converting the land

bearing survey No.99 situated at Village Vadsar, Taluka

and District Vadodara admeasuring 4148 Sq. Meters (now

included in TP Scheme No. 32 of Vadsar and bearing

Final Plot No. 37 admeasuring 2489 Sq. Metres) to old

tenure for non-agricultural residential purpose to enable

the owners to sell the same to Hemesh Natubhai Patel

and Nilesh Jashbhai Patel, subject to various conditions

imposed in that order.

Prior to passing of the above order, an amount of

Rs. 59,73,600/- was deposited towards premium on

03.09.2015 and in view of the above, that order was

given effect in the revenue record vide Entry No.3782 on

05.11.2015 which was certified on 17.12.2015.

2.11 Accordingly, legal heirs of Mohanbhai Koyabhai

Rathodiya executed a registered sale deed on 05.11.2015

in favour of Hemesh Natubhai Patel and Nilesh Jashbhai

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Patel in respect of land bearing survey no. 99

admeasuring 4148 Sq. Meters.

The names of the purchasers i.e. Hemesh Natubhai

Patel and Nilesh Jashbhai Patel were entered in the

revenue record vide mutation entry no. 3873 dated

05.11.2015, which came to be certified on 28.12.2015.

2.12 Thereafter, the Collector, Vadodara vide order

dated 05.08.2016 granted non-agricultural permission to

the purchasers and mutation entry No.3911 to that effect

was entered in the revenue record on 27.09.2016, which

was certified on 07.11.2016.

2.13 Pursuant thereto, Hemesh Natubhai Patel and

Nilesh Jashbhai Patel applied for development permission

and on 12.08.2016 the same was granted by the

Respondent No.2 - Authority.

2.14 The order dated 05.08.2016 passed by the

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Collector came to be challenged by one Zaverbhai

Bhaijibhai Rathodiya by way of filing Revision

Application before the Special Secretary, Revenue

Department, which came to be rejected vide order dated

07.06.2018.

The mutation entry No.3995 to that effect was

entered in the revenue record, which was certified on

23.07.2018.

2.15.1 Mutation entry No.3873, which was qua sale in

favour of Hemesh Natubhai Patel and Nilesh Jashbhai

Patel was challenged by the legal heirs of other two

branches of deceased Koyabhai i.e. Bhaijibhai Koyabhai

(deceased) and Ramabhai Koyabhai (deceased) before the

Deputy Collector by way of Appeal Nos.4 of 2016 and 87

of 2016.

The Deputy Collector rejected the said appeals vide

its order dated 13.03.2019.

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Effect of the same was given in the revenue record

vide mutation entry no. 4037 dated 16.03.2019.

2.15.2 Further, order of Deputy Collector was

challenged by way of filing revision application before the

Collector, which was rejected vide order dated 30.12.2019,

and effect of which was given in the revenue record vide

mutation entry No.4114 dated 19.01.2020.

2.15.3 Being aggrieved by the above order dated

30.12.2019 passed by the Collector, Vadodara, preferred

Revision Application bearing No.HKP/VDD/184/2020 before

the Special Secretary, Revenue Department which is

pending adjudication.

2.15.4 It is noted that the heirs of Bhaijibhai

Rathodiya and Ramabhai Rathodiya were aware of the

sale executed in favour of Hemesh Natubhai Patel and

Nilesh Jashbhai Patel since prior to the year 2016.

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2.16 In the interregnum period, the subject property

came to be purchased by petitioner No.1 - Shreeji

Developers from its erstwhile owners Hemesh Natubhai

Patel and Nilesh Jashbhai Patel by executing a

registered sale deed dated 12.09.2016.

Pursuant to which, name of Shreeji Developers was

entered into the revenue record vide mutation entry

No.15878 dated 28.10.2016.

2.17 The plaintiffs of Special Civil Suit No.12 of

1992 made an application at Exh.39 before the competent

Civil Court to pass final decree for partition in terms of

preliminary decree dated 16.07.1993.

The competent Civil Court disposed of the said

application vide order dated 22.03.2019.

2.18 Pursuant to the above, the plaintiffs preferred

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an application before the Competent Authority to mutate

their names in the revenue record and accordingly their

names were mutated vide entry No.4050.

Prior to certifying the above referred entry, no

mandatory notice under section 135-D was served.

Pursuant to that, several other heirship entries

bearing nos. 4165, 4166, 4167, 4168 and 4169 came to

be mutated in the revenue record.

2.19.1 Thereafter, the legal heirs of Mohanbhai

Koyabhai Rathodiya - Shantilal Mohanbhai Rathodiya,

being aggrieved by the order dated 22.03.2019 passed in

Special Civil Sulit No.12 of 1992 has preferred a Special

Civil Application No.9505 of 2019 before this Court

against the legal heirs of deceased - Ramanbhal

Ramabhai Rathod and legal heirs of deceased Bhaijibhal

Koyabhai Rathod, which is pending for adjudication;

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2.19.2 Further, he has preferred RTS Appeal/Delay

Case No. 20/2019 before the Deputy Collector challenging

mutation entry Nos.3788 and 4041.

The said delay application came to be rejected by

the Deputy Collector vide order dated 20.08.2020.

2.19.3 Being aggrieved and dissatisfied by the above

order, he has preferred RTS Appeal along with delay

condonation application bearing No.RTS Appeal/Delay

No.91/2022, which is still pending for adjudication;

2.20 Further, the other legal heirs of deceased

Mohanbhai Koyabhai Rathodiya also preferred RTS

Appeal before the Deputy Collector, Vadodara for setting

aside mutation entry No.4050 and heirship entries

Nos.4165, 4166, 4167, 4168, 4169. Since there was a

delay in preferring RTS Appeal, legal heirs of deceased -

Mohanbhai Koyabhai Rathodiya has also preferred an

application for condonation of delay being RTS

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Appeal/Delay No.14/2022, which is pending for

adjudication.

2.21 Thereafter, the petitioner No.1 applied for

development permission for residential cum commercial

purpose before the competent authority and paid requisite

fees of Rs. 67,07,590/-. After conducting necessary

inquiry, the petitioner No.1 was granted development

permission vide Rajachhithi No.Ward-4/HB/87/2021-2022

dated 18.02.2022.

2.22.1 Further, though petitioner No.1 initiated steps

to develop the subject land and invested considerable

amount, he was served with a notice issued by

respondent No.3 dated 22.04.2022, whereby the petitioner

No.1 was informed that with reference to the

development permission dated 18.02.2022, objection has

been received from Manjulaben D/o Ramanbhai Rathodiya

and petitioner No.1 was asked not to carry out

construction work and was further asked to produce

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relevant documents within a period of 3 days, despite

the fact that the petitioner No.1 had already submitted

all the relevant documents on 23.02.2022.

2.22.2 Upon such notice being served, petitioner No.1

immediately approached the concerned authority and

requested for copy of the objections submitted by

Manjulaben, however copy of the same was not provided

to the petitioner.

Further, petitioner No.1 also pointed out that on

23.02.2022, the relevant documents regarding ownership

of petitioner No.1 have already been produced by

petitioner No.1.

2.22.3 Despite the above and without considering the

fact that no construction work was carried out by the

petitioner, respondent No.3, without giving any

opportunity of hearing to the petitioner, straight away,

vide order dated 29.04.2022, stayed the development

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permission granted to the petitioner.

2.22.4 Upon receiving the impugned order, petitioner

No.1 immediately addressed a detailed communication to

respondent No.3 by pointing out that petitioner No.1 is a

bona fide purchaser of the property in question and

documents pertain to the ownership of petitioner No.1

were already submitted on 23.02.2022 and in the

interregnum, petitioner No.1 has executed registered sale

deed on 29.04.2022 in favour of Shreeji Developers -

petitioner No.2 herein for the subject land.

Further, prior to passing of the impugned order,

copy of the so-called objections were also not provided to

the petitioner.

Further, on 04.05.2022, the petitioner No.1 obtained

copy of the purported objections and upon perusal of the

purported objections, the present petitioners were shocked

to notice that the purported objections are supposedly

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submitted by Respondent No.4 on 24.02.2021 even prior

to grant of Rajachitthi dated 18.02.2022.

2.23 It is this impugned order dated 29.04.2022,

which is challenged by the petitioners before this Court.

3. Heard Mr. R.S. Sanjanwala, learned senior advocate

with Mr. Rushabh H. Shah, learned advocate for the

petitioners, Mr. Meet Thakkar, learned AGP for

respondent No.1 - State Authorities, Mr. Nilesh Pandya,

learned advocate for respondents No.2 and 3 and Mr.

Mehul S. Shah, learned senior advocate with Mr. Jenil

M. Shah, learned advocate for respondent No.4.

4. Rule. Learned advocates waive service of notice of

rule on behalf of the respective respondents.

5. Initially, on 17.05.2022, this Court has issued notice

and on 20.03.2022, interim relief was granted by this

Court. Further, on 01.09.2022, the interim relief is

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vacated in Civil Application No.1 of 2022 of Special Civil

Application No.9584 of 2022. Thereafter, today, the

present petition is heard for final disposal.

6.1 Learned Senior Advocate Mr. R.S. Sanjanwala for

the petitioners has submitted that the subject land was

re-granted under the Bombay Inferior Village Watans

Abolition Act, 1958 to one Mohanbhai Koyabhai

Rathodiya. Under Section 5(3) of the said Act mandates

restriction on transfer or partition by metes and bound

of the land re-granted without previous sanction of the

Collector. He has further submitted that no claim has

been made by the private respondents for grant under

the provisions of the Bombay Inferior Village Watans

Abolition Act, 1958. He has further submitted that after

the demise of Mohanbhai Koyabhai Rathodiya, on

12.07.1988, the names of his legal heirs were entered in

the revenue record vide mutation entry No.1832. He has

further submitted that legal heirs of Bhaijibhai Rathodiya

and others have also tried to mutate their names on

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basis of the consent decree vide mutation entry No.2570

but the same came to be rejected on the ground that

the land was of new tenure and no prior permission of

competent authority was obtained. Even at that stage,

appropriate proceedings were not instituted by legal heirs

of Bhaijibhal Rathodlya.

6.2 He has further submitted that no further steps for

obtaining requisite permission from the competent

authority under the Bombay Inferior Village Watans

Abolition Act, 1958 were taken and the land continued

in the name of legal heirs of Mohanbhai Koyabhai

Rathodiya. He has further submitted that the Collector

vide its order dated 23/27.10.2015 granted permission to

convert the subject land from new tenure to old tenure.

He has further submitted that on 05.11.2015, by way of

registered sale deed executed by legal heirs of

Mohanbhai Koyabhai Rathodiya in favour of on Hemesh

Patel & Nilesh Patel, the mutation entry No.3873 is also

effected which was subsequently challenge by the legal

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heirs of Bhaijibhai Rathodiya and the same was also

rejected by Deputy Collector vide order dated 13.03.2019

and by Collector vide order dated 30.12.2019 and against

that the revision is pending before learned S.S.R.D. He

has further submitted that on 05.08.2016 the Collector

granted non-agricultural use permission to the

purchasers, which also came to be challenge by legal

heir of Bhaijibhai Rathodiya before the SSRD and the

same was also rejected vide order dated 07.06.2018. He

has further submitted that on 12.08.2016 the Collector

granted development permission to the purchasers and

this is not subjected to any challenge.

6.3 He has further submitted that on 12.09.2016 subject

property came to be purchased by petitioner No.1 by

executing registered sale deed and thereafter, mutation

entry No.15878. He has further submitted that the

plaintiffs of Special Civil Suit No.12 of 1992 applied vide

Exh.38 to the learned Civil Judge to grant final decree

for partition in terms of preliminary decree dated

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16.07.1993. He has further submitted that the learned

Civil Judge disposed of the application by order dated

22.03.2019 which is also subjected to challenge by the

legal heirs of Shantilal Mohanbhai Rathodiya by

preferring Special Civil Application No.9505 of 2019

which is pending before this Hon'ble Court. He has

further submitted that on 09.08.2019 the petitioner No.1

has applied for development permission after payment of

requisite fees amounting to Rs.67,07,590/- from the

authority. He has further submitted that on 24.02.2021

the respondent No.4 submitted objections before the

authority concerned against grant of development

permission. He has further submitted that on 18.02.2022

the petitioner was granted development permission and

on 23.02.2022 the petitioner was called upon by the

authorities to submit again all relevant documents and

the petitioner submitted all the necessary documents

evidencing ownership of petitioner No.1 over the subject

property. He has further submitted that on 22.04.2022

since the fact that all relevant documents pertaining to

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ownership were already provided by the petitioner, the

petitioner was served with a show cause notice and was

asked to produce relevant documents. He has further

submitted that on 29.04.2022 the authorities straight

away without affording any opportunity of hearing,

suspended the development permission granted in favour

of the petitioner.

6.4 He has further submitted that respondent No.4 has

knowledge about the registered sale deed dated

05.11.2015 executed in favour of Hemesh Patel and

Nilesh Patel and registered sale deed dated 12.09.2016

executed in favour of petitioner No.1 has not been

challenged by filing appropriate proceedings by

respondent No.4 or any other legal heirs of Bhaijibhai

before any competent court. He has further submitted

that in view of this background, the respondent No.4 has

no locus to oppose the development permission of the

present petitioners as the respondent No.4 cannot claim

any right, title or interest by virtue of consent decree

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dated 16.07.1993 as over these years, the so called

consent decree has never been acted upon, and therefore,

has now become unenforceable in the eyes of law. He

has further submitted that the respondent authorities

while granting the development permission under the

provisions of Gujarat Town Planning and Urban

Development Act, 1976 cannot decide or go into the

question regarding title of the land in question and

therefore, he has submitted that the powers which are

exercised by the respondent authority under Section 29

of the Gujarat Town Planning and Urban Development

Act, 1976 is similar to the powers exercised by the

Collector under Section 65 of the Land Revenue Code for

non-agriculture permission.

6.5.1 In support of his submissions, he has relied

upon the judgments of the Honb'le Apex Court in the

cases of (i) State of Punjab & Ors. versus Gurdev Singh

& Ashok Kumar reported in AIR 1992 SC 111, (ii)

Tulsan versus Pyare Lal reported in (2006) 10 SCC 782,

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(iii) Chanda C. Kadam versus Additional Collector &

Competent Authority reported in (2013) 16 SCC 371 and

(iv) New India Cooperative Housing Society Limited

versus Municipal Corporation of Greater Mumbai reported

in (2008) 9 SCC 694.

6.5.2 Further, in support of his submissions, he has

relied upon the judgments of this Court in the cases of

(i) Tusharbhai Harjibhai Ghelani versus State of Gujarat

reported in 2019 (4) GLR 2578, more particularly para

22, 35 and 39 are relevant and (ii) Anil Developers

versus State of Gujarat reported in 2016 JX (Guj.) 698.

6.6 He has further submitted that the respondent

authority has also acknowledged in affidavit-in-reply that

they do not have any powers to go into the question

pertaining to title and Rule 3.3.1.1 of G.D.C.R. Rules,

2017 is relevant to refer for that very purpose. He has

further submitted that the petitioners are bona fide

purchasers for value and the petitioner has invested

huge amount for purchasing the land in question and

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pursuant to execution of registered sale deed, the

petitioner has paid fees amounting Rs. 67,07,590/- for

obtaining development permission and as the petitioner

has invested huge amount in initiating steps for

developing the subject land, the impugned order is

causing great prejudice to the petitioners since the

petitioners are incurring huge losses on day-to-day basis.

He has referred the affidavit-in-reply filed by respondent

No.4 and has submitted that in the affidavit-in-reply the

respondent No.4 has narrated several irregularities

committed by the petitioners while obtaining development

permission which are in breach of G.D.C.R. Rules, 2017

and has submitted that such irregularities is raised first

time before this Court and the same is not permissible

under the law. He has further submitted that the points

of law, which are raised by the respondents are

answered by the aforesaid cited judgments, therefore, he

prays to allow the present petition by exercising the

power conferred under Article 226 of the Constitution of

India by quashing and setting aside the impugned

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communication passed by the respondent authority.

7.1 Per contra, learned Senior Advocate Mr. Mehul S.

Shah appearing for respondent No.4 has submitted that

the various proceedings is initiated as earlier stated by

learned Senior Counsel for the petitioners. He has relied

upon the consent pursis which is produced on record rd wherein, the 1/3 share is given pursuant to the consent

pursis. He has further submitted that on the basis of

that pursis, consent decreed and the decree remained

challenged and attained the finality, and therefore, the

right of respondent No.4 cannot be disturbed unless the

decree is challenged by the petitioners. He has further

relied upon the revenue entry and has submitted that

the N.A. permission is granted for residential purpose

which is sought by the petitioners. He has further

submitted that the sale deed in favour of the petitioners

is executed on 12.09.2016 and thereafter, the matter is

proceeded further. Thereafter, the petitioners have applied

for development permission and thereafter, the respondent

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No.4 have approached the respondent corporation by

filing objection against the development permission and

thereafter, the respondent corporation has issued show

cause notice to the petitioner and the petitioner was not

satisfied with the query raised in the show cause notice

by the respondent corporation, the respondent corporation

has suspended such development permission by

communication dated 29.04.2022.

7.2 He has further submitted that it is also relevant to

note that though the respondent corporation has

suspended such permission and meaning thereby, the

petitioner cannot further develop the land in question

and cannot enter into the transaction but on the very

same day i.e. on 29.04.2022, the sale deed is executed by

petitioner No.1 in favour of petitioner No.2 and this

shows gross conduct of the petitioners which is with a

view to define any legal proceedings.

7.3 He has further submitted that the affidavit-in-reply

filed by the respondent corporation is also supporting the

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case of the respondent No.4 to some extent. He has

further submitted that it is the duty of the respondent

corporation to take appropriate action but it is found

from the reply to some extent that the corporation is

shirking the responsibility to discharge its statutory duty

in the present matter. He has further submitted that the

void order is required to be declared.

7.4.1. In support of his submissions, he has relied

upon the judgments of the Hon'ble Apex Court in the

cases of (i) Gurdev Singh & Ashok Kumar (supra), more

particularly para 5, 6 & 8 are relevant, (ii) Tulsan

versus Pyare Lal reported in 2006 (0) AIJEL-SC-38029

and more particularly, para 13 & 16 are relevant, and

has submitted that the consent decree is in favour of the

predecessor entitled of respondent No.4. (iii) Chanda C.

Kadam (supra), wherein the action is dehors under the

provisions of law, (iv) New India Cooperative Housing

Society Limited (supra).

7.4.2. In support of his submissions, he has relied on

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the judgments of this Court in the cases of (i)

Laxmanbhai Rambhai Jalu versus Surat Municipal

Corporation of the City of Surat reported in 2022 JX

(Guj.) 1 (ii) Anil Developers versus State of Gujarat

reported in 2016 (0) AIJEL-HC-235505.

7.5 He has further submitted that since the conduct of

the petitioners is against the provisions of law and if

looking at the impugned communication by which the

petitioner is aggrieved, it transpires that such

communication dated 18.02.2022 is issued pursuant to

objection raised by respondent No.4 and by asking to

supply necessary documents and on non-supply of

document, the communication dated 29.04.2022 is issued

and therefore, there is no error committed by the

respondent authority by suspending the development

permission until otherwise irreversible situation will be

created if the petitioner is permitted to develop the land

in question and the rights of many persons will be

jeopardized in future, if any order is passed against the

petitioners and in the facts and circumstances of the

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present case, the respondent authority has rightly

considered the objection raised by respondent No.4 in

proper perspective.

7.6 He has relied upon the allotment permission

granted on 18.02.2022 wherein there is reference of

application dated 09.08.2019 for obtaining such

permission.

7.7 He has further submitted that there also, such

permission is governed by the necessary Rules of

G.D.C.R. Rules, 2017. He has also pointed out the order th passed by learned 11 Additional Civil Judge, Vadodara

dated 22.03.2019 whereby the learned Court has disposed

of the application on drawing the final decree as

preliminary decree is already drawn. He has also pointed

out from the consent pursis that the right is 1/3rd of

the every stakeholder who has signed that consent decree

and the said decree is never challenged by petitioners.

7.8 He has relied upon Rule 3.6.1 of G.D.C.R. Rules,

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2017 and has submitted that said Rule expressly

stipulated that the development permission is required to

be withheld when the ownership changes after the

development permission is granted until such time new

owner is brought on record and revised development

permission is granted by the respondent authority. He

has further submitted that in the present case, on

29.04.2022 the petitioner No.1 has transferred the

property in favour of petitioner No.2 and hence the

present development permission in favour of petitioner

No.1 is required to be withheld till the time the

petitioner No.2 applies for a revised development

permission and the same is granted by the concerned

authority.

7.9 He has further relied upon Rule 3.6.2 of G.D.C.R.

Rules, 2017 and has submitted that since there was no

architect/engineer on record on the date of grant of

development permission since the two architects/engineers

of the petitioner No.1 - Anjali Associates and Mayur B.

Patel had retired from the project on 12.03.2019 and

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20.01.2022 respectively, hence the development permission

is required to be withheld till the time, and the said

irregularities are rectified as per the said Rule. He has

further submitted that an architect/engineer is required

for the very purpose.

7.10 He has further relied upon Rule 3.7 of GDCR

Rules, 2017, and has submitted that the petitioners have

made false statements and suppressed material facts

while obtaining the said permission since the petitioner

had intentionally suppressed the consent decree dated

16.07.1993 as well the final decree dated 22.03.2019

while applying for development permission and moreover,

when the petitioner was called upon by the respondent

No.3 at that point of time also, the petitioner has not

disclosed the fact before respondent No.3 by producing

relevant documentary evidence. Therefore, on 22.04.2022

the notice is issued by respondent No.3. He has further

submitted that it is also coming on record that the

abovementioned aspect is not mentioned even in

communication dated 23.02.2022. He has further

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submitted that the N.A. permission dated 05.08.2016 was

granted to the predecessors of the petitioner only for

residential purpose and He has further submitted that it

is admitted fact that the land in question is being used

for commercial use also and hence while issuing order

for development permission, specific condition was

imposed on the petitioners that the development

permission would be issued only if the petitioners obtain

a revised N.A. permission for commercial use, however,

till date no such revised N.A. permission has been

applied for by the petitioners.

7.11 He has further submitted that the conduct of

the petitioners is also required to be considered as the

petitioners were never served by notice issued by this

Court by order 17.05.2022 and the respondent No.4 has

refused by disclosing incorrect fact and therefore, on

20.05.2022, this court has passed order of status qua

which is subsequently vacated in civil application by

order dated 01.09.2022.

C/SCA/9584/2022 CAV JUDGMENT DATED: 13/10/2022

7.12 He has prayed that considering the overall

facts and aspect of the matter, the present petition is

required to be dismissed with appropriate cost, as the

petitioners are trying to abuse the process of law.

8.1 Learned advocate Mr. Nilesh Pandya appearing for

the respondent Nos.2 & 3 has submitted that the

respondent corporation has filed its affidavit and has

initiated necessary action against the present petitioners,

in accordance with law. He has drawn the attention of

this Court towards affidavit-in-reply and has submitted

that as per Rule 3.3.1.1. of G.D.C.R. Rules, 2017, the

competent authority did not consider acceptance of

correctness, confirmation, approval or endorsement of the

title, ownership and easement right of the buildings is

proposed and by considering this provision, the

corporation has sanctioned the development permission to

the petitioners.

8.2 He has further submitted that as per the averments

made in the affidavit-in-reply and in view of the claim

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made by respondent No.4, he has right, title or interest

in the disputed property and has also filed a revision

application against the order of Collector, Vadodara and

the same is pending before learned S.S.R.D. under Rule

108(6) of Gujarat Land Revenue Rule, 1972, and

therefore, the Town Development Department has

informed the petitioner that TDO is going to obtain legal

advice from the legal department and in the meantime,

the petitioner may not construct or develop the property

in question, however, in spite of the instruction given to

the petitioners, the petitioner has continued the

construction and therefore, the respondent No.4 has

aggressively objected against the grant of development

permission and in this circumstance, the corporation by

letter dated 29.04.2022 has suspended the development

permission which is under challenge. He has further

submitted that ultimately it is a dispute between private

parties i.e. petitioners and respondent No.4 with regard

to the property in question. He has further submitted

that now subsequently, the petitioner has also served

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with the copy of the order passed by the learned

S.S.R.D. dated 22.07.2022 by which the order of Collector

is confirmed by learned S.S.R.D. and therefore, the

respondent corporation will abide by the any order

passed which may be passed by this Court in the facts

and circumstance of this case.

9.1. I have heard learned advocates appearing for the

respective parties. I have considered the averments made

in the present petition. I have gone through the

documents annexed with the present petition as well as

affidavit-in-reply filed by the respective parties.

9.2 I am of the view that the present petition is

essentially a dispute between the private parties i.e.

petitioners and respondent No.4, which pertains to the

property in question as well as various legal proceedings

are connect with the matter under the provisions of the

Bombay Inferior Village Watans Abolition Act, 1958,

under the provisions of Land Revenue Code, under the

provisions of Civil Procedure Code, 1908 as well as

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under the provisions of the Gujarat Town Planning and

Urban Development Act, 1976 and it transpires that the

petitioner No.1 is a bona fide purchasers, who has

purchased the land from erstwhile owner and the

thereafter recently respondent No.2 has purchased the

land from the respondent No.1.

9.3 It also transpires from the record that the said

development permission issued on 18.02.2022 is

suspended by communication dated 29.04.2022 and

respondent No.4 has raised serious objection against the

granting of said development permission. It is also

relevant to note that the provisions of Rules 3.3.1.1,

3.6.1 & 3.6.2 of G.D.C.R. Rule, 2017 are relevant to

decide the present dispute in question, which reads as

under:

"3.3.1. Grant of a Development Permission:-

3.3.1.1 Competent Authority does not

constitute acceptance of correctness, confirmation,

approval or endorsement of: a. Title, ownership,

and easement rights of the Building‐unit for

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which the building is proposed; b. Variation in

area from recorded areas of a Building‐unit; c.

Location and boundary of Building‐unit; d.

Workmanship, soundness of material and

structural safety of the proposed building; e.

Structural reports and structural drawings and

shall not bind or render the Competent

Authority liable in any way in regard to (a), (b),

(c) (d) and (e) above.

3.6 Procedures for Obtaining Development Permission:-

3.6.1 Application content, format and attachments:-

1. Application for Development Permission shall be

made by the Owner of the Building units/land on

which the building is proposed in the format

prescribed in Form No. 5 for Buildings or for

Sub‐division or for Amalgamation and Form No.

5A for Brick Kiln, Mining and Quarrying. The

application shall be accompanied with, drawings,

specifications and documents as prescribed in

Schedule 2A for Building or for Sub‐division or/

and Amalgamation and Schedule 2B for Brick

Kiln, Mining and Quarrying. The format for

submission of drawings, specifications and

documents is specified in Schedule 2C. The receipt

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of the different payment leviable under the Act

and the regulations shall also be attached with

the application.

2. Any person intending to development single

residential building of area up to 125 sq.mt, may

be permitted to commence construction without

seeking permission in the manner specified in 1

above. In such matters the owner shall see that:-

i. The person on record, appointed by the owner,

shall ensures that the development commenced is

in compliance with these regulations;

ii. The plans and documents, in duplicate, for the

construction are, within 30 days from the date of

commencement, submitted to the competent

authority. Such plans and documents shall be

those which are prescribed to be submitted along

with the application in Form 5. (Form No. C)

iii. The competent authority shall handover the

second copy of plan to the applicant duly

acknowledged, which shall be kept for inspection

on site.

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iv. The licensed Engineer/Architect along with the

applicant shall submit an affidavit prescribed in

Form - 17.

3. The Applicant, as per time to time directions

by the competent authority or state government

shall have to apply online.

4. The competent authority may as per time to

time direction of the state government or

otherwise adopt, for the scrutiny of development

permission application, the automated scrutiny

system.

3.6.2 Scrutiny Fees:-

Scrutiny Fees and other charges for obtaining a

Development Permission shall be determined by

the Competent Authority and are listed in

Schedule 1."

9.4 It is also relevant to note that the ratio laid down

in the judgments cited by the respective parties are

binding to this Court but in the present case there is

apparently non-compliance or breach of the said Rules of

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the G.D.C.R. Rules, 2017. Though I am in agreement

with the submissions made by learned advocate for the

petitioners that the respondent corporation cannot decide

the dispute about the title. However, corporation can

certainly look into such objection raised on the basis of

document of title and to avoid further complications of

the subsequent third party purchasers, if the land is

developed and sold by the developers and therefore, I am

not in the agreement to the contention that the

respondent corporation has no power to even consider

such objection raised by the respondent No.4. It is also

relevant to note that Municipal Corporation being

statutory authority, has to perform its statutory duty at

right time and in appropriate cases and one of the duty

to permit and thenafter to keep track of the such

development activity in accordance with law and in the

present case the respondent corporation has acted

promptly.

9.5 Further, I found that in view of the provisions of

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G.D.C.R. Rules, 2017, the development permission which

is granted by the corporation is suspended in pursuant

to the dispute raised by the respondent No.4 and such

action is within the authority of the respondent No.2 -

corporation. Though, the proper opportunity of

hearing/making of representation is not given to the

petitioners but since petitioner No.1 has further executed

sale deed on 29.04.2022 in favour of the petitioner No.2,

which speaks about conduct of the petitioners and

therefore, the discretionary powers under Article 226 of

the Constitution of India is required to be considered

with more care and caution in present case, and I found

that there is no perversity or illegality as the respondent

corporation can exercise the powers in view of the fact

that Authority who has granted permission can also

suspend or cancel the permission and provisions of

Section 27 to 37 of the Gujarat Town Planning and

Urban Development Act, 1976 as well as in view of the

provisions of G.D.C.R. Rules, 2017 and I found that

there is no illegality or impropriety committed by the

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respondent corporation in issuing communication dated

29.04.2022, and I found that ends of justice would meet

as the dispute is substantially between the petitioners

and respondent No.4 about the title in the property

which cannot be decided by corporation but issue

pertains to the said development permission, which is

issued to the petitioners is required to be considered

afresh after giving opportunity to respective parties to

present their case before Authority.

9.6 It is appropriate in the interest of justice to direct

the respondent No.2 - Corporation to give appropriate

opportunity to represent their case to the petitioners and

respondent No.4, by accepting their submissions in

writing and shall take fresh decision, in accordance

with law. It is clarified that the earlier communication

dated 29.04.2022 will not come in way of either of the

parties.

10. In view of above observation, the following order is

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passed.

10.1 It is always open for the petitioners to file

appropriate application for revised N.A. permission or

development permission, if it is permissible under the

law.

10.2 The respondent No.2 - Corporation shall hear

the present petitioners as well as respondent No.4,

within a period of 3 weeks from today, after providing

proper opportunity by calling them to submit their

submission by way of written submissions within

reasonable time period, and will take fresh decision by

considering the submissions made by both the parties, in

accordance with law, by keeping in mind the provisions

of law and G.D.C.R. Rules, 2017, Gujarat Town Planning

and Urban Development Act, 1976, etc. and by

considering the relevant materials available on record

with the corporation and decide independently without

being influenced by the earlier communication issued by

the respondent corporation or order passed by this Court.

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10.3 Thus, in view of the above stated directions

the present petition is disposed of. Rule is discharged.

Direct service is permitted.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA