SNEHAL PARK COOP HOUSING SOCIETY LIMITED v. STATE — 1999 DIGILAW 562 (GUJ)

S. K. KESHOTE, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) THE petitioner, a registered Cooperative Housing Society, by this petition under Article 226 of Constitution of India praying for a writ of mandamus or any other writ or order or direction directing the respondent No. 1, its subordinate officers to invoke powers under Section 10 of Urban Land (Ceiling and Regulation) Act, 1976 and to take possession of the land comprising survey No. 546/2, Final Plot No. 62 admeasuring 4000 Sq. Yrds. in Vejalpur Scheme No. 1 City Taluka and District Ahmedabad. Further prayer has been made for the direction to the respondent No. 2, and its officers to remove unauthorised construction made in the land aforesaid by the respondent Nos. 3 to 7. The second prayer has been made to restrain the respondent Nos. 3 to 7 and their servants and agents by an injunction from making any construction on the aforesaid land during the pendency of this Special Civil Application. ( 3 ) THIS petition has come up for preliminary hearing in the court on 31/3/90. On that day court ordered that "notice pending admission returnable on 19/4/90. Ad-interim relief in terms of Para 7 (b)". Ultimately, on 23/3/92 the petition was admitted. However, I do not find anything on the record of this Special Civil Application that the interim relief, which has been granted by this court earlier was extended from time to time and finally it made permanent. The petitioners, as per their case, out of the land in dispute agreed to purchase 2000 Sq. Yrds. from the respondent No. 5. For this the petitioner has entered into a land development agreement cum Banakhat with respondent No. 5 and alleged to have paid Rs. 85,501. 00 to him. It is the case of the petitioner that the respondent No. 5 has delivered possession of 500 Sq. Yds. land to the petitioner. Further payment of Rs. 3,000. 00 has been made to the respondent No. 5. 85,501. 00 to him. It is the case of the petitioner that the respondent No. 5 has delivered possession of 500 Sq. Yds. land to the petitioner. Further payment of Rs. 3,000. 00 has been made to the respondent No. 5. The document aforesaid is on the record of this Special Civil Application as Annexure-A. ( 4 ) FROM the facts, stated by the petitioner in this Special Civil Application, I find that the day on which the agreement aforesaid was entered into between the petitioner and respondent No. 5 the land in dispute had been declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976. The petitioner, as what I find from para No. 3 of the Special Civil Application, filed Civil Suit No. 746 of 1986 in the court of Civil Judge (JD) at Narol against the respondent No. 5 - its promoter Saiyadali Samsalali Doctor and one Mahendrabhai M. Desai for permanent injunction restraining the defendants from transferring or parting with possession of the suit land. As per the case of the petitioner, the suit is still pending. ( 5 ) FROM para 4 of the Special Civil Application, it comes out that the petitioner was fully aware of the fact that this land was declared surplus and it has filed application under Section 23 of the Act aforesaid to the competent authority and Additional Collector, Ahmedabad and the respondent No. 1 to grant the land to the petitioner-society. This application is also stated to be pending. In para 5 of the Special Civil Application, the petitioner averred as under :-"in the meantime it is learnt by deponent of this petition that respondent Nos. 3 to 7 are trying to encroach upon said surplus land and to make unauthorised construction over the same. Hence Petitioner society informed resp. No. 1 to take immediate steps. Copy of reply dtd. 29/12/1989 of competent Authority and Additional Collector (Urban Land Ceiling) Ahmedabad in response to petitioner said letter is attached herewith and marked as Annexure-B. As per Annexure-B, resp. No. 2 has been informed by competent authority to take steps to stop unauthorised construction, if carried in suit land. Inspite of this, no prompt and speedy steps have been taken by resp. No. 1 and 2 and unauthorised and illegal activities of resp. No. 3 to 7 of encroaching upon said land and making unauthorised construction is going on". No. 2 has been informed by competent authority to take steps to stop unauthorised construction, if carried in suit land. Inspite of this, no prompt and speedy steps have been taken by resp. No. 1 and 2 and unauthorised and illegal activities of resp. No. 3 to 7 of encroaching upon said land and making unauthorised construction is going on". ( 6 ) ON the record of this Special Civil Application, I do not find anything from the side of the petitioner or from the side of the respondent that the possession of the disputed land was taken by the competent authority. From the facts, as stated in the Special Civil Application, it reveals that the possession of the land in dispute appears to be with the respondent Nos 3 to 7. From the prayer, as made in para 7 (a) of the Special Civil Application, there remains no doubt whatsoever that the possession of the land in dispute remains with the respondent Nos. 3 to 7. It is a clear admission of the petitioner in this para of the Special Civil Application of the factum of the possession of the disputed land with the respondent Nos. 3 to 7. Para 7 (a) of the Special Civil Application reads as under :"this Honble court be pleased to issue a writ of Mandamus or any other writ or order or direction directing resp. No. 1 its subordinate officers to invoke powers under section 10 of Urban Land (Ceiling and Regulation) Act, 1976 and to take possession of Survey No. 546/2 which is Final Plot No. 62 admeasuring 4000 Sq. Yds. in Vejalpur Scheme No. 1 City Taluka and District Ahmedabad. And resp. No. 2 and its officers be directed to remove unauthorised construction made in said land by resp. Nos. 3 to 7. And this petition be allowed". ( 7 ) THE interim relief, which has been granted by this court has been continued or not, I do not find anything on the record. Reply to the affidavit on behalf of the respondent No. 3 is there on the record and therefrom also it is clear that the respondent Nos. 3 to 7 have not parted with the possession of the land. Reply to the affidavit on behalf of the respondent No. 3 is there on the record and therefrom also it is clear that the respondent Nos. 3 to 7 have not parted with the possession of the land. ( 8 ) THE Urban Land (Ceiling and Regulation) Act, 1976 has been repealed in the State of Gujarat and as the possession of the land in dispute is with the respondent Nos. 3 to 7, this Special Civil Application abates. Otherwise also the learned counsel for the petitioner submits that in view of the subsequent developments, which have been taken place during the pendency of this Special Civil Application, the first part of the prayer made in para 7 (a) does not survive. ( 9 ) FROM the second prayer made in para 7 (a) of the Special Civil Application, it is an admitted case of the petitioner that the respondent Nos. 3 to 7 had already put construction on the land. This also fortified from the prayer in para 7 (b) of the Special Civil Application, which reads as under :-"during the pendency and final disposal of this petition, resp. Nos. 3 to 7 and their servants and Agents be restrained by an injunction from making any construction in Land bearing Survey No. 546/2 admeasuring 4000 Sq. Yds. and being Final Plot No. 62 situated in Vejalpur Scheme No. 1 city taluka and District Ahmedabad". ( 10 ) THE claim of the petitioner for this land is based on land development agreement cum Banakhat and admittedly on the day on which the petitioner and respondent No. 5 had entered into that agreement, the land in dispute was already declared surplus land under existing provisions of the Urban Land (Ceiling and Regulation) Act, 1976. The agreement cum Banakhat itself is null and void as such agreements are prohibited to be entered into under the provisions of the Act, aforesaid. The holder of the land, which has been declared surplus has no right to enter into an agreement and similarly the persons who are willing to purchase the land knowing this fact, are also not legally entitled to purchase the land. When the agreement itself is void ab initio, the claim made on the basis of such an agreement otherwise cannot be entertained by this court sitting under Article 226 of the Constitution of India. When the agreement itself is void ab initio, the claim made on the basis of such an agreement otherwise cannot be entertained by this court sitting under Article 226 of the Constitution of India. If such agreements are being enforced, then the court will perpetuate an illegality. Moreover, the very purpose and object of the enactment of the Act, 1976 will be frustrated. It is an agreement which clearly exhibits an example of committing a fraud by the petitioner and the respondent No. 5 with the provisions of the Act, 1976. It is hardly of any relevance and material that the members of the petitioner-society are of persons of weaker section. Law is equally applicable to the citizens of the country and only on the basis that the members of the petitioner-society are SC/st it will not be taken to be different. It is, at the cost of repetition to be stated a clear case of fraud with the Act, 1976 as well as to the Constitution of India. The petitioner is also not a law abiding person and when it acted contrary to the law of the country otherwise also only on this ground it disentitles itself for taking a relief from this court under Article 226 of the Constitution, under its extraordinary equitable jurisdiction. ( 11 ) THERE is yet another ground, which justifies dismissal of this Special Civil Application. Whatever the prayers made now first prayer made in clause (a) of para 7 is already the subject matter of the civil suit filed by the petitioner in the Civil Court prior to filing of this petition. It is not the case of either of the parties that civil suit has been decided. So far as the prayer made in clause (b) of para 7 of the Special Civil Application is concerned, it is a prayer for grant of interim relief, which ultimately merges in the final decision. So, only the second prayer made in clause (a) of para 7 is to be taken note of. Herein the petitioners prayed for direction to the respondent No. 2 to remove the unauthorized construction made on the land by respondent Nos. 3 to 7. For this, the petitioner otherwise also have no locus standi. So, only the second prayer made in clause (a) of para 7 is to be taken note of. Herein the petitioners prayed for direction to the respondent No. 2 to remove the unauthorized construction made on the land by respondent Nos. 3 to 7. For this, the petitioner otherwise also have no locus standi. It is understandable that in case illegal construction is put on in a proper case, the court may give direction to competent authority to remove the same. But the conduct of the petitioner is very material and important. The petitioner itself wants to take the benefit of an illegal agreement. The demolition of the constriction is prayed for by the petitioner for its own benefits and not for the benefit of the public at large. The petitioner wants the demolition of the construction so that if ultimately they succeed in the petition or suit it may get the land. Moreover, the agreement to sale does not create any right, title or interest in the land, which at the most gives right for specific performance of the agreement, if it is a lawful agreement. This petition is filed by the petitioner, who itself is responsible for an illegal transaction, no relief of the nature as prayed for can be granted by the court. ( 12 ) THERE is yet another conduct of the petitioner, which disentitle its from seeking any relief from this court under its extraordinary equitable jurisdiction. Before approaching the court, the petitioners have already filed civil suit. The petitioner once availed of a remedy and that remedy is also pending it cannot avail of second remedy. Whatever the grievances, which the petitioner had against the respondent No. 3 to 7 or even respondent Nos 1 and 2 those could have been made the subject matter of the suit. Otherwise also, the petitioner cannot be permitted to have to avail of two parallel remedies for the same dispute and availing of these two remedies simultaneously otherwise also illegal and not permissible. ( 13 ) TAKING into consideration the totality of the facts of the case, this writ petition is wholly misconceived and the same is dismissed. Petitioner is directed to pay Rs. 1,000. 00 as costs of this petition to respondent Nos. 1 and 2. Rule is discharged. Interim relief, if any, granted by this court stands vacated. .