Gujarat High Court
Farhan Tasaddukhusain ... vs Onali Ezazuddin Dholkawala on 23 August, 2023
Bench: Aniruddha P. Mayee
NEUTRAL CITATION
C/LPA/1042/2023 ORDER DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1042 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 13041 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 1042 of 2023
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FARHAN TASADDUKHUSAIN BARODAWALA
Versus
ONALI EZAZUDDIN DHOLKAWALA
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Appearance:
MR. ALKESH N SHAH(3749) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 23/08/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard the learned counsel for the appellants and perused the
record.
2. This Appeal is directed against the judgment and order dated
09.02.2023 of rejection of review application filed by the appellants
herein to seek recall of the judgment and order dated 09.03.2020
passed in Special Civil Application No.13041 of 2019 and the order
dated 23.12.2020 passed in Misc. Civil Application No.1 of 2020. To
assail the order passed by the learned Single Judge, it is submitted
by the learned counsel for the appellants, who have been non-suited
on the ground of locus, that the signatures put by the appellants on
the panchnamas, declaration signed in favour of the transferor at
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C/LPA/1042/2023 ORDER DATED: 23/08/2023
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the time of execution of the sale deed dated 24.06.2016, was a
result of misrepresentation on the part of the transferor. It is
submitted that as per the requirement of the provisions of the
Gujarat Prohibition of Transfer of Immovable Property and Provisions
of Tenants from Eviction from Premises in Disturbed Areas Act,
1991, no objection from the neighbour was required to be obtained
for seeking prior permission of execution of a sale deed for an area
covered by this Act. The submission is that there is a prescribed
performa for the declaration, which is to be signed by a neighbour,
for moving application seeking prior permission by the transferor. It
is the case of the appellants that the panchnama/declaration dated
19.09.2016 which was admittedly signed by the appellants, is not in
the prescribed format as per the statutory provisions, nor the
appellants were the neighbours, who could be asked to sign the said
document. The submission is, thus, that the panchnama/declaration
dated 19.09.2016 was a result of misrepresentation on the part of
the transferor. It is argued by the learned counsel for the appellants
that the writ petitioner has been able to obtain a favourable order
from the Writ Court by concealment of the correct facts. In order to
bring the correct and complete facts before the Court, the review
application was filed by the appellants herein which was illegally
dismissed according to the appellants, with the costs of Rs.25,000/-.
3. Taking note of the above submissions of the learned counsel
for the appellants, we are required to note the findings returned by
the learned Single Judge in paragraphs 18 and 19 of the decision for
rejection of the review application filed by the appellants herein.
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C/LPA/1042/2023 ORDER DATED: 23/08/2023
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4. A perusal thereof shows that the learned Single Judge has
noted that the applicants/appellants herein are signatories to
panchnamas which confirmed that they were residing in the
neighbourhood and the sale of the property was with free consent
and fair value. The claim of the applicants that they were made to
sign the panchnamas by misrepresentation and they did not
understand the consequence, was repelled by the learned Single
Judge, in absence of any material before the Writ Court. The
averments in the affidavit of the State on record were further noted
wherein the statements of the applicants recorded in the
proceedings were brought on record. It was noted that the
applicants/appellants did not dispute their signatures, but stated
that in fact, they were not residing in the neighbourhood. In rebuttal
of the said stand of the appellants, the original petitioners had
produced the documents to substantiate that the signatories were
residing in the neighbourhood at the relevant point of time.
5. It is further recorded in the judgment impugned that in so far
as the consent of the neighbour, when the scope of inquiry before
the Deputy Collector was that of free consent and fair value, the role
of neighbour in the context of such sale, therefore, became
irrelevant. The Deputy Collector who had passed the order dated
30.01.2017 was set aside by the leaned Single Judge in the main
judgment and order dated 09.03.2020 on the ground that the
Deputy Collector has travelled beyond the question as to whether
the transaction was an outcome of free consent and for fair value. In
our considered opinion, the learned Single Judge has rightly noted
that even the neighbours in their statements had supported the
sale.
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C/LPA/1042/2023 ORDER DATED: 23/08/2023
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6. Taking note of the above findings returned by the learned
Single Judge, we raised a pointed query to the learned counsel for
the appellants to explain the conduct of the appellants in
approaching this Court in the year 2023 seeking for recall of the
judgment and order dated 09.03.2020, whereby the order passed by
the Deputy Collector in the proceedings for grant of permission for
execution of the sale deed, was set aside. We have asked him to
explain as to why the appellants did not raise this grievance before
the competent authority for a period of more than six years as the
consent, admittedly, was given by the appellants on 19.09.2016. No
plausible explanation could be offered before us for not approaching
the competent authority, seeking for recall of the consent, in the
panchnamas/documents signed on 19.09.2016. It is, thus, evident
that the appellants herein have indulged in the act of both
approbate and reprobate in their stand in the proceedings at
different point of time.
7. The learned Single Judge has further noted that the motive of
the applicants/appellants is questionable as they have approached
this Court after a period of two years from the date the judgment
and order dated 09.03.2020 and more than six years after putting
signatures on the panchnama/declaration. It is evident that the
review application filed by the appellants herein amounts to abuse
of process of the Court. It was further noted that during the course
of the proceedings in the review application, another application
was made by 10 applicants being Civil Application No.1 of 2022,
seeking to join as parties claiming them to be neighbours of the
transferor on the ground that they are affected by the sale as their
shops are adjoining to the property subject matter of sale. It is also
noted by the learned Single Judge that after the sale deed was
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registered, application was moved for renovation of the property,
the neighbours who are the applicants in Civil Misc. Application No.1
of 2022 came to this Court to prevent the transferee from
undertaking repairs to the dilapidated structures. They also made a
complaint to the police in order to stall the repairs/construction
being carried out by the transferee. The findings returned in
paragraph 21 of the judgment in review are to be reproduced
hereunder:-
"21. The motive of the applicants is questionable. The
judgment was delivered on 09.03.2020. The signatures
of the applicants - panchas is in context of their
signatures made in the year 2016. Two years after the
decision they surface before this Court asking for a recall
of the order on the ground that they have never signed
or that they were coerced into signing. Unfortunately, a
suggestion from the Court to the State to examine this,
led to a situation where the State machinery has gone
ahead and re-examined these panchas in the year 2022-
23, in which, they appear to be not disputing their
signatures but the circumstances of they being made to
sign. Statements have also been recorded of certain
other neighbors who have now come forward suggesting
that the sale should not have happened as it was
creating a situation where the equilibrium was being
disturbed. This exercise of the State, through on affidavit
is a suggestion of opposing the application, but the
intention is seen otherwise. The motive of the applicants
has to be seen in light of this development.
Unfortunately for the applicants, the apprehension of the
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Court on such motive appears to be justified by a
subsequent application made being Civil Application No.1
of 2022 by ten third party applicants who professed to be
neighbors seeking to be joined as parties to the recall
application on the ground that they are really affected
parties as the shops purchased by the original
petitioners is adjoining their shops. It has come on record
that the original petitioners after the sale deed was
registered pursuant to the directions in the Misc. Civil
Application, made an application for renovation so that
the property can be occupied. This application of the
petitioners was made to the police authorities on
08.10.2021 and it has come on record through the
rejoinder filed by the original petitioners that the
petitioners are being prevented from undertaking repairs
to the dilapidated structure and when they were being
prevented by the neighbors they had to complaint to the
police. Obviously therefore, this when seen in context of
the facts itself is a disturbing factor that a successful
purchaser of property in a disturbed area is being
hounded and thwarting his attempt to enjoy the fruits of
the property which he successfully purchased. Obviously
therefore not only does the Review Application, but the
application of neighbors for Joining Party need to be
dismissed."
8. From the above noted facts, reflected from the record, which
could not be successfully disputed by the learned counsel for the
appellants, we find justification in the order of dismissal of the
review application with costs. No interference is called. The Appeal
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C/LPA/1042/2023 ORDER DATED: 23/08/2023
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is dismissed being misconceived. The cost imposed by the learned
Single Judge is hereby affirmed. The appellants shall deposit the
same within a period of four weeks as per the directions of the
learned Single Judge failing which adverse consequences will ensue.
9. The Civil Application for stay also stands disposed of,
accordingly.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
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