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2016 DIGILAW 1896 (GUJ)

Rajendrakumar Amrutlal Mendha v. State of Gujarat

2016-09-02

BELA M.TRIVEDI

body2016
JUDGMENT : BELA M. TRIVEDI, J. The petitioner, by way of present petition filed under Article 226 of the Constitution of India, has challenged the impugned order dated 6th/7th May, 2011 passed by the SSRD in Revision Application No.MVV/JMN/SNR/31/2009 (Annexure-A), as also the order dated 3.2.2009 passed by the Collector, Surendra nagar (Annexure-B). The petitioner has further prayed to direct the respondent Nos. 1, 3, and 5 to remove the illegal construction made on the Plot Nos. 4 and 5 of Survey No. 7 (hereinafter referred to as “the disputed plots”) and further to direct the respondent Nos. 1 and 3 to restore the original position of the said plots. 2. The case of the petitioner, in nutshell, is that the land bearing Survey No. 7 in all admeasuring 9 acres and 20 gunthas was of the_ownership of one Khimchand Chaturbhai Shah. He had applied to the Collector for converting the said land into non-agricultural purpose. The Collector, Surendra nagar granted the said application for conversion vide the order dated 24.5.1961 The said original owner thereafter sold the said land to M/s. Shah Chhaganlal Umedchand on 9.6.1969 The said Shah Chhaganlal Umedchand put up a layout plan before the concerned authority for necessary sanction, which was sanctioned, according to which Plot No. 5 was shown as reserved for common purpose. Thereafter, the said Shah Chhaganlal Umedchand sold out the Plot No. 4 to the respondent No. 4 by registered sale deed executed on 28.5.1975 and also transferred the Plot No. 5 by executing a gift deed dated 28.5.1975 (Annexure-D) in favour of the respondent No. 4. The necessary entry in the Village Form No. 6 was also recorded. It further appears that the respondent No. 6 Society passed a Resolution on 21st September, 1975 permitting the respondent No. 4 to put up construction of Derasar (Jain Temple) on Plot No. 5 and to give all facilities for the said Derasar. The father of the petitioner became a Member of the respondent No. 6 Society in respect of Plot No. 38 on 24thSeptember, 1978. 3. The father of the petitioner became a Member of the respondent No. 6 Society in respect of Plot No. 38 on 24thSeptember, 1978. 3. According to the petitioner, since the respondent No. 4 was putting up construction of Derasar on Plot No. 5 which was reserved for common purpose, the petitioner had time and again made representation to the concerned authorities, however, the Collector vide the order dated 7.6.2000 regularized the use of the said plot in question for religious purpose. A corrigendum was also issued on 13.8.2000 Being aggrieved by the order dated 7.6.2000 passed by the Collector, the petitioner had preferred the Revision Application before the SSRD. The said Revision Application came to be dismissed vide the order dated 18.5.2005 (Annexure-F) by the SSRD. Hence, the petitioner had preferred a writ petition being Special Civil Application No. 11452 of 2005 before this Court, which came to be allowed vide the order dated 7.7.2005 and the matter came to be remanded to the SSRD. After the remand of the matter, the SSRD allowed the Revision Application of the petitioner and vide the order dated 20.5.2006 set aside the order of the Collector dated 7.6.2000, and further remanded the matter to the Collector for fresh consideration. The Collector thereafter called for certain information from the Mamlatdar, Wadhvaan vide the letter dated 11.7.2006, however, then passed the order dated 3.2.2009 (Annexure-B) confirming the earlier order passed by him regularizing the use of the plot in question for religious purpose. Being aggrieved by the said order, the petitioner preferred Revision Application before the SSRD, who vide the order dated 6.5.2015 dismissed the same. Hence, the petitioner has filed the present petition. 4. This Court while issuing Rule on 19.6.2015 in the present petition had directed that no further construction shall be carried out on the plot in question. However, according to the petitioner, the respondent No. 4 was continuing with the construction. Therefore, an application being Civil Application No. 7687 of 2016 was filed by the petitioner praying to initiate appropriate proceedings against the Secretary of respondent No. 4 Sangh. The said application was also heard along with the present petition. 5. However, according to the petitioner, the respondent No. 4 was continuing with the construction. Therefore, an application being Civil Application No. 7687 of 2016 was filed by the petitioner praying to initiate appropriate proceedings against the Secretary of respondent No. 4 Sangh. The said application was also heard along with the present petition. 5. At the outset, it is required to be mentioned that admittedly the petitioner had filed the Civil Suit being No. 21/2003 against the respondent No. 4 Sangh and respondent No. 5 Nagarpalika seeking declaration to the effect that the respondent No. 4 (Defendant No. 1 in the said suit) had no right to put up any construction on the Plot No. 4 and common Plot No. 5 and also seeking permanent injunction for restraining the respondent No. 4 from putting up any construction on the said plots. The petitioner had also moved an application Exh.5 seeking temporary injunction pending the suit, which application was dismissed by the concerned Court vide the order dated 31.3.2003 It appears that the petitioner had preferred Appeal from Order against the said order, however, the said Appeal from Order also came to be dismissed by this Court. Thereafter, the said suit came to be dismissed for non-prosecution on 20.11.2008 However, the said facts have not been disclosed by the petitioner in the present petition. It is needless to say that the petitioner invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is bound to disclose all true and correct facts, failing which his petition is liable to be dismissed on that ground alone. 6. Though Mr. Desai, learned Counsel for the petitioner had tried to show from the ground (f) contained in the petition that the petitioner had taken up the contention about the said suit, in the opinion of the Court the said disclosure could not be said to be the correct disclosure, much less full disclosure of the correct facts. As rightly submitted by the learned Counsel Mr. Sanjanwala for the respondent No.6, making cursory reference of the suit, without proper pleading in the petition, is nothing but smart or clever drafting, which can not be permitted in the petition invoking equitable jurisdiction. It is not disputed that after the dismissal of the said suit for non-prosecution, the petitioner has not made any attempt to restore the said suit. It is not disputed that after the dismissal of the said suit for non-prosecution, the petitioner has not made any attempt to restore the said suit. Under the circumstances, it clearly transpires that the petitioner after having availed of the alternative remedy of filing the suit, and having failed to obtain the temporary injunction pending the suit, the present petition was filed seeking similar relief as prayed in the said suit, which was allowed to be dismissed by the petitioner. There cannot be any disagreement to the proposition of law laid down by the Supreme Court in the case of State of Uttar Pradesh v. Jagdish Sharan Agrawal, reported in (2009) 1 SCC 689 , relied upon by Mr. Desai to the effect that when the suit is dismissed for default, it cannot operate as res-judicata, however, in the instant case, the petitioner has filed the present petition invoking extraordinary jurisdiction under Article 226 of the Constitution of India, after having failed to obtain any relief in the suit. As stated earlier, the petitioner has also not made full disclosure of the correct facts in the present petition. Hence, considering the conduct of the petitioner, the Court is of the opinion that the present petition deserves to be dismissed on the ground of the petitioner having availed of the alternative remedy of filing the suit but not pursuing it, and on the ground of non-disclosure of correct and full facts in the petition. 7. So far as the Plot No. 5 in question is concerned, the learned Counsel Mr. Desai for the petitioner has relied upon the proposed site plan for Shree Visvakunj Co-operative Housing Society Limited, Ratanpar approved by the Collector on 22.4.1963 to show that the said plot was reserved for common plot and, therefore, the said plot was required to be kept open for the benefits of the members of the Society and that no construction should have been permitted to be raised thereon. To buttress his submission, Mr. To buttress his submission, Mr. Desai has relied upon the decisions of this Court in case of Harikrushnadas Chhaganlal Nanalal and Ishwardas Mohanlal v. Vinodchandra G. Vaghela, reported in 2010 (1) GLH 710 , in case of Bipinchandra P. Patel v. Anand Area Development Authority, reported in 2001 (4) GLR 3265, and of Supreme Court in case of M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464 . The Court does not find any substance in the said submission of the learned Counsel for the petitioner. From the bare perusal of the said plan, it clearly transpires that the Plot No. 5 was not included in the plots ear-marked for the respondent No. 6 Society and that the said plot along with the other plots had remained with the original owner Shah Chhaganlal Umedchand. Therefore it could not be said that the said Plot No. 5 was reserved for the common purpose for the benefit of the members of the respondent No. 6 Society. It further appears that there were other two common plots ear-marked for the members of the Society out of the Plots of the Society. There was a road shown in the said map dividing the plots belonging to the Society and the plots belonging to the owner Shah Chhaganlal. Apart from the factxthat the plots Hin question did not belong to the said Society, what was shown in the said plan was that the said plot No. 5 was reserved for common purpose. In this regard it is further required to be noted that in the year 1975, the Society had resolved that since the respondent No. 4 Sangh was going to put up Derasar on the said plot reserved for common purpose, the Society would give all facilities to the said Sangh as may be required. It appears that thereafter the respondent No. 4 had also obtained the necessary permission to put up construction on the said plot in the year 1983 and the Collector had also regularized the use of the said plot for religious purpose. 8. Of course, Mr. Desai has vehemently submitted that no such permission was ever granted by any authority as the said permission has not been placed on record by any of the respondents, however, the said submission also cannot be accepted. 8. Of course, Mr. Desai has vehemently submitted that no such permission was ever granted by any authority as the said permission has not been placed on record by any of the respondents, however, the said submission also cannot be accepted. The Chief Officer of respondent No. 5 Nagarpalika in his affidavit-in-reply has categorically stated that the respondent No. 5 Nagarpalika had granted the permission to the respondent No. 4 vide the order dated 4.2.1983 and 7.9.1983 after verifying the lay-out plan. The Court has no reason to disbelieve the said statement made by the Chief Officer on oath. The said contention made on behalf of the respondents was also raised before the Tribunal and was accepted by the Tribunal. The order regularizing the use of the plot in question from common purpose to religious purpose was also passed by the Collector on 7.6.2000 9. Under the circumstances, it could not be said that the construction put up by the respondent No. 4 on the plot in question was illegal. In any case, whether such permission was duly granted or not, or whether the construction was illegal or not, are the disputed questions of facts, which could not be gone into by the Court exercising the jurisdiction under Article 226 of the Constitution of India. From the documents on record and the affidavits filed by the concerned respondents, the Court is of the opinion that the petitioner has failed to show that the construction on the plot in question was an illegal construction. The judgments relied upon by Mr. Desai have no application to the facts of the present case, as the said judgments are in respect of the construction put up in violation of the T.P Scheme, which is not the case in the instant case. 10. The learned Counsel Mr. R.S Sanjanwala has rightly submitted that the petitioner, claiming the Easementary Right over the plot in question had filed the suit and the said suit having been dismissed, the petitioner could not have re-agitated the said issue in the present petition in absence of any legal or fundamental right. 11. Though it is sought to be submitted by Mr. R.S Sanjanwala has rightly submitted that the petitioner, claiming the Easementary Right over the plot in question had filed the suit and the said suit having been dismissed, the petitioner could not have re-agitated the said issue in the present petition in absence of any legal or fundamental right. 11. Though it is sought to be submitted by Mr. Desai that earlier this Court in the petition filed by the petitioner had directed the SSRD to reconsider the issues raised by the petitioner, the SSRD has dismissed the Revision Application of the petitioner on the same ground ignoring the observations made by this Court, the said submission also does not deserve any consideration. The Collector as well as the Tribunal after having considered the record of the case and having been fully satisfied about the permissions obtained by the respondent No. 4 for putting up the Derasar on the plot in question, and about the regularization of the plot in question, have not accepted the contentions raised by the petitioner. The Court does not find any jurisdictional or other error in the orders passed by the respondent authorities. 12. Mr. Desai had filed the Civil Application for taking appropriate action against the respondent No. 4 alleging that the respondent No. 4 had continued to raise construction despite the interim stay granted by this Court, however, Mr. Desai has failed to substantiate the said allegation. Even otherwise, Mr. Desai having failed to show any legal right much less fundamental right over the plot in question, the application does not deserve any further consideration. 13. In that view of the matter, the petition being devoid of merits, is dismissed. Rule is discharged. No order as to costs. 14. The Civil Application, in view of the above judgment, does not survive and stands disposed of accordingly.