RAMESH P. PATEL v. STATE — 1994 DIGILAW 131 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE order passed by the Competent Authority at Ahmedabad (respondent No. 2 herein) on 31st May 1988 rejecting the application made by petitioner No. 1 presumably on behalf of the petitioners under section 21 (1) of Urban Land (Ceiling and Regulation) Act 1976 ( the Act for brief) as affirmed in appeal by the order passed by the Urban Land Tribunal at Ahmedabad (the Appellate Authority for convenience) on 20th August 1990 in Appeal No Ahmedabad-388 of 1988 is under challenge in this petition under Articles 226 and 227 of the Constitution of India ( 2 ) THE faces giving rise to this petition move in a narrow compass. It appears that petitioner No. 1 on behalf of the petitioners made one application some lime on 23rd March 1979 for permission under section 21 (1) of the Act with respect to one parcel of land bearing survey No. 243 situated at Bodakdev within the urban agglomeration of Ahmedabad (the disputed land for convenience ). The petitioners thereafter entered into one agreement with one Gayatri Builders (the contractor for convenience) on 13th December 1979 to sell the disputed land to the Contractor on certain terms and conditions A copy of that agreement is at Annexure-1 to this petition. It appears that the contractor unathorisedly raised some construction and the Ahmedabad Urban Development Authority was required to issue a notice for demolition of such construction raised by the Contractor on the disputed land. The Contractor challenged that action of the Ahmedabad Urban Development Authority before this Court by means of Special Civil Application No. 2972 of 1982 It came to be disposed of by the judgment delivered by this court on 25 March 1994 on the ground that the construction on the disputed land had come to be demolished. Coming back to the subject matter of this petition it appears that that correspondence with respect to approval of the scheme was received by the Contractor on behalf of the present petitioners. It appears that the Controller did not act as directed in the correspondence received by it from time to lime in connection with the application for permission under section 21 (1) of the Act. It appears that the Controller did not act as directed in the correspondence received by it from time to lime in connection with the application for permission under section 21 (1) of the Act. It appears that the specified authority for the purposes of section 21 (1) of the Act reported to respondent No. 2 that the particulars called for from the appellant were not supplied and the scheme could not be approved. The grievance of the petitioners in this petition is that they remained blissfully ignorant of the correspondence issued in connection with the application under section 21 of the Act. It appears that respondent No. 2 issued notices from time to time to petitioner No. 1 for hearing with respect to the aforesaid application under section 21 (1) of the Act. I appears that pursuant to one such notice received by the petitioners they made a written representation on 25th May 1988 in response thereto. After hearing the parties by his order passed on 31st May 1988 respondent No. 2 rejected the application of petitioner No. 1 under section 21 of the Act. Its copy is at Annexure-IV to this petition. It appears that both the contractor and the petitioners were aggrieved by it. The Contractor carried the matter in appeal before the Appellate Authority under section 33 or the Act by means on Appeal No. Ahmedabad-299 of 1989. By the order passed on 26th September 1989 in the aforesaid appeal the Appellate Authority dismissed it. Its copy is at Annexure-VII to this petition. So far as the petitioners are concerned they also preferred a separate appeal under section 33 of the Act. A copy of their memo of appeal is at Annexure-VIII to this petition. It came to be registered as appeal No. Ahmedabad- 388 of 1988. By his order passed on 20th August 1990 in the aforesaid appeal7 the Appellate Authority dismissed it. Its copy is at Annexure-IX to this petition. The aggrieved petitioners have therefore moved this Court by means of this petition under Articles 226 and 227 or the Constitution of India for questioning the correctness of the impugned order at Annexure-VI to this petition as affirmed in appeal by the appellate order at Annexure-IX to this petition. Its copy is at Annexure-IX to this petition. The aggrieved petitioners have therefore moved this Court by means of this petition under Articles 226 and 227 or the Constitution of India for questioning the correctness of the impugned order at Annexure-VI to this petition as affirmed in appeal by the appellate order at Annexure-IX to this petition. ( 3 ) THOUGH this petition has been styled as the one under Article 226 and 227 of the Constitution of India it has to be treated as the one under Article 227 only in view of the binding Division Bench ruling of this Court in the case of Jashubhai Hiralal Gandhi vs. Competent Authority and Deputy Collector reported in 1990 (2) Gujarat Law Herald a Page 609. ( 4 ) THE grievance of the petitioners is that they did not get an opportunity of hearing as the correspondence with respect to supply of particulars demanded by the specified authority as it was received by the Contractor and they remained ignorant as to the transpired at that level and as such they could not make any effective representation in response to the notice of hearing received from the Competent Authority respondent No. 2 herein ). I think that factual position is not seriously in dispute. It is thus clear that the petitioners did not have an opportunity of having their say in the matter before the specified authority and they could not make any effective representation before respondent No. 2 in response to the notice of hearing as they remained blissfully ignorant as to what transpired between the specified authority and the Contractor with respect to supply of particulars regarding the scheme to be sanctioned. It is true that at the stage of passing the impugned order at Annexure-VI to this petition the petitioners made a representation on 25th May 1988 The petitioner however did not have any opportunity with respect to compliance with the directions issued by the specified authority from time to time as that correspondence was received by the Contractor on behalf of the petitioners. The impugned order at Annexure-VI to this petition can therefore be said to be in contravention of the audi alteram partem rule. The impugned order at Annexure-VI to this petition can therefore be said to be in contravention of the audi alteram partem rule. ( 5 ) ORDINARILY after reaching the conclusion that no opportunity of hearing in its true sense was afforded to the petitioners before passing the impugned order at Annexure-VI to this petition this court would have remanded the matter to respondent No. 2 for restoration of the proceeding in question to file and for his fresh decision according to law after giving an opportunity of hearing to the petitioners in the matter. I have however not thought it fit to do so in view of the fact that the conduct of the petitioners as found reflected from the material on record does not entire them to claim any discretionary relief under Article 227 of the Constitution of India. It cannot be gainsaid that the relief under Article 227 of the Constitution of India is discretionary in nature and this Court might refuse to exercise that discretion in favour of party whose conduct disentitles him from claiming any such discretionary relief from this Court. A reference deserves to be made to the Division Bench ruling of the Bombay High Court in the case of N. M. Nayak vs. Chhotalal Hariram reported in AIR 1968 Bombay 51. In that case the High Court refused to exercise the extraordinary jurisdiction under Article 227 of the Constitution of India in favour of the petitioner on the ground of his conduct in approaching the Court with unclean hands. The relevant observations are in paragraphs 19 and 20 of the aforesaid ruling at page 54. They read: (19) From the tenor of the said agreements it is clear that the object of the petitioner was to circumvent the provisions of the Rent Act and to make large profits by allowing the suit shop to be used and occupied by others. The rent of the suit shop was Rs. 90 per month and the petitioner was realising Rs. 250 per month from the said Bhangera and Rs. 425 from the said Society. In our opinion these agreements are nothing but camouflage and were resorted to by the petitioner to make unjustifiable gains. The rent of the suit shop was Rs. 90 per month and the petitioner was realising Rs. 250 per month from the said Bhangera and Rs. 425 from the said Society. In our opinion these agreements are nothing but camouflage and were resorted to by the petitioner to make unjustifiable gains. (20) The above conduct of the petitioner sufficiently indicates that the petitioner has not approached the Court with clean hands and he has disentitled himself from invoking the jurisdiction of this Court under Art. 227 of the Constitution and we are not prepared to assist the petitioner by exercising the discretion vested in us. We also refuse to exercise our powers under Art. 227 as there is no possibility of any grave injustice being caused to the petitioneri am in respectful agreement with the aforesaid Division Bench ruling of the Bombay High Court. With respect it is on all fours applicable in the present case in view of what is pointed out hereinobove. ( 6 ) AS pointed out hereinabove after applying for the permission under section 21 (1) of the Act the petitioners agreed to sell the disputed land to the Contractor by means of the document at Annexure-I to this petition. This the petitioners could not have done. That act on their part was contrary to the scheme of section 21 of the Act. ( 7 ) SHRI Patel for the petitioners was at pains to convince me to the effect that guidelines and circulars issued by the Central Government would permit the petitioners to enter into such transaction even after applying for the permission under section 21 (1) of the Act. He has invited my attention to one Circular No. 2/21/78-UCU of 26th February 1989 issued by the Government of India in the Ministry of Works and Housing as printed at page 458 in the book named Law of Urban Land Ceiling by Rameshwar Dial as edited by Adarsh B. Dial ( Second Edition- 1990) published by Bharat Law Publications at Jaipur (the Book for convenience ). Para 5 thereof reads:very often Landowners may not be able to undertake the construction themselves and may like to associate a builder or collaborator to construct the dwelling units and dispose of them. Para 5 thereof reads:very often Landowners may not be able to undertake the construction themselves and may like to associate a builder or collaborator to construct the dwelling units and dispose of them. There is no objection to a landowner who is permitted under section 21 (1) to retain the land entering into such an agreement with a connector or builder as does not offend section 21 (1 ). But no actual transfer of land or transfer of rights in the land to the contractor or builder should take place. Relying on the aforesaid guidelines contained in the aforesaid Circular printed at page 458 of the Book Shri Patel for the petitioners has submitted that it was open to the petitioners to entire into the agreement of the kind as reflected in the document a Annexure-I to this petition and that conduct on the part of the petitioners need not come in their way in claiming the desired relief claimed by them in this petition ( 8 ) I think the purpose of the aforesaid guidelines was to enable the landholder to obtain some financial assistance from other sources to tide over his financial difficulties in construction of the dwelling units for the weaker sections of the society alter grant of such permission under section 21 (1) of the Act. The aforesaid guidelines would not permit a landholder applying for or receiving permission thereunder to agree to sell the disputed land or the subject-matter of such permission in favour of anyone. A contractor can be retained to construct the dwelling units but a contract cannot be entered into for selling the subject matte of such permission. ( 9 ) IT is true as roughly submitted by Shri Patel for the petitioners that under Rule 11a of the Rules framed under the Act read with Schedule 1 annexed thereto a landholder after obtaining the necessary permission under section 21 (1) of the Act has been empowered to dispose of the dwelling units in favour of members of the weaker sections of the society. It cannot be gainsaid that such course of action can be taken only alter the dwelling units are constructed. It cannot be gainsaid that such course of action can be taken only alter the dwelling units are constructed. It may be open to the landholder obtaining the permission under section 21 (1) of the Act to entire into an agreement to sell a dwelling unit (while it is in the process of construction) to a member of the weaker sections of the society. The landholder may invite offers from members of the weaker sections of the society in that regard. However the necessary sale transaction in each case will have to be entered into only after completion of the construction work of such dwelling units in all respects. Besides that has to be done by the landholder himself. He cannot agree to sell the disputed land to anyone else for raising dwelling units for the weaker sections or the society and to permit the vendee or the purchaser to sell those dwelling units to members of the weaker sections of the society. That is exactly what is sought to be done under the agreement at Annexure-1 to this petition. It is a settled principle of law that what cannot be done directly cannot be permitted to be done indirectly. That would tantamount to defeating or frustrating the avowed object of the Act and the scheme of Section 21 thereof. ( 10 ) SHRI Patel for the petitioners was at pains to convince me that the appellate order at Annexure-IX to this petition suffers from the vice of non application of mind on the pan of the Appellate Authority. That might be so. The fact however remains that the relies under Article 227 of the Constitution or India is discretionary in nature and such discretion cannot and not not be exercised in favour of a party whose conduct is dubious whose conduct is to defeat or to frustrate the avowed object of the Act or the scheme of section 21 thereof ( 11 ) IN view of my aforesaid discussion no interference whatsoever is called for with the impugned order at Annexure-VI to this petition as affirmed in appeal by the appellate order at Annexure-IX to this petition. ( 12 ) IN the result this petition fails. It is hereby rejected Rule is accordingly discharged with no order as to costs. The interim relief stands vacated. ( 12 ) IN the result this petition fails. It is hereby rejected Rule is accordingly discharged with no order as to costs. The interim relief stands vacated. ( 13 ) AT the oral request of Shri A. J. Patel for the petitioners the operation of the order vacating the interim relief is stayed for a period of twelve weeks from today to enable the aggrieved petitioners to approach the higher forum by means of an appropriate proceeding for questioning the correctness of this judgment of mine on condition that the petitioners shall tile an undertaking on or before 27th April 1994 to the effect that the disputed land is vacant in their possession and that they will maintain status time with respect to the subject matter of this petition and in no manner transfer it in favour of anyone nor would they create any equity in their favour or in favour of anyone. Petition Rejected. .