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2016 DIGILAW 2140 (GUJ)

Harsh Reality Firm v. Anil Developers

2016-10-21

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2016
ORDER : VIPUL M. PANCHOLI, J. The appellant, original respondent no. 3 in Special Civil Application No. 11317 of 2016, has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent, aggrieved by the order dated 06.05.2016 passed by the learned single Judge. 2. The facts in a nutshell are as under; Respondent no. 1 herein, original petitioner, is a Partnership Firm carrying on business in the name of “M/s. Anil Developers”. The said firm is engaged in the business of acquisition and development of lands. Ukabhai Pujabhai Mali, owner of the land bearing Survey No. 142 ad-measuring 49,068 sq. metres and situated at Village Savad, entered into a development contract with the original petitioner-firm on 24.10.1988 in respect of the said land. In pursuance of the aforesaid contract, the original petitioner made huge investments for development of the land in question. By order dated 17.03.1999, the District Collector, Vadodara declared the land as Non-agricultural land and N.O.C under the old tenure land was issued. On 14.12.2000 Somabhai Ukabhai Mali, son of Ukabhai Pujabhai Mali, executed one General Power of Attorney in favour of Dwarkadas, a Partner of the petitioner-firm and another person, named, Rashmikant Jayashankar Bhatt. On 29.12.2000 the respondent-Vadodara Municipal Corporation (“the VMC” for short) granted development permission of 346 Plots and also issued the ‘Rajachitti’ in respect of the said plots. 2.1 It was the case of the petitioner-firm that on 04.01.2001 a new contract was entered into between the petitioner-firm and the original land owner for development of the land with the condition that the same shall be sold to the petitioner-firm only. However, the respondent no. 3 attempted to disturb the ownership of the land in question by relying upon the proceedings filed by some third party wherein, the original land owners and one of the Partners of the petitioner-firm, were parties. 2.2 On 16.01.2007 the original land owner, Somabhai Ukabhai Mali, executed two registered sale deeds in favour of the petitioner-firm. The first registered sale-deed bearing registration no. 384 was executed in respect of Plots No. 196 to 206 situated on the northern side and having City Survey No. 20 ad-measuring 1646 sq. metres and the second registered sale-deed bearing No. 385 was executed in respect of Plots No. 209 to 279 ad-measuring 8777 sq. metres. The first registered sale-deed bearing registration no. 384 was executed in respect of Plots No. 196 to 206 situated on the northern side and having City Survey No. 20 ad-measuring 1646 sq. metres and the second registered sale-deed bearing No. 385 was executed in respect of Plots No. 209 to 279 ad-measuring 8777 sq. metres. In pursuance of the above sale, the name of the petitioner was entered in the City Survey property card vide Entry Nos. 4454 & 4484. 2.3 On 11.02.2011 Somabhai Ukabhai Mali passed away. On 13.03.2012 10 heirs of deceased Somabhai got their names entered in the revenue record in respect of the land in question behind the back of the petitioner. Thereafter, on 06.08.2012 respondent no. 3-firm, the appellant herein, in collusion with the heirs of deceased Somabhai Ukabhai Mali, entered into a registered sale-deed in respect of lands bearing Plot Nos. 196 to 279 of Survey No. 142. 2.4 In the year 2015 the petitioner-firm came to know about the alleged mischief played by respondent no. 3. On 15.02.2015 respondent no. 3-firm applied for development permission before respondent-VMC in respect of 10423 sq. metres of land situated in the same Survey No. 142. Being aggrieved by the above action of respondent no. 3, the petitioner-firm preferred a suit being Special Civil Suit No. 115 of 2015 seeking cancellation of the registered sale-deed executed in favour of respondent no. 3 before the Court of learned Civil Judge, Vadodara, which is reported to be pending. The petitioner-firm submitted its detailed objections before the Municipal Commissioner, Vadodara in respect of the application submitted by respondent no. 3 seeking development permission. However, by order dated 15.06.2015, the respondent-VMC granted development permission (‘Rajachitti’) in favour of respondent no. 3. 2.5 Being aggrieved by the aforesaid action of the respondents, the petitioner-firm had preferred the captioned writ petition before this Court. After hearing both the sides, the learned single Judge issued the following directions in Para-10 of the judgment; “10. …Considering the peculiar facts and circumstances of the present case, following directions are issued to the respective parties: The petitioner as well as respondent No. 3 shall produce relevant documents before the Corporation within a period of two weeks from today. The application dated 19.2.2015 submitted by respondent No. 3 u/s.27 of the Act shall be decided by the Commissioner himself within a period of six weeks thereafter. The application dated 19.2.2015 submitted by respondent No. 3 u/s.27 of the Act shall be decided by the Commissioner himself within a period of six weeks thereafter. The Commissioner shall pass an order in accordance with the provisions of the Gujarat Town Planning and Urban Development Act and Rules therein and General Development Control Regulations applicable to area of city of Vadodara, after giving opportunity of hearing to all concern. It is hereby made clear that this Court has not gone into the merits and demerits with regard to right, title and interest in the property of respective parties. Whatever observations made hereinabove, shall not be binding to any authority in any other proceedings pending either before civil court or revenue authority, etc. This Court has also not expressed any opinion with regard to suppression of facts by either party before this Court or before any other authority. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 3. Learned counsel Mr. B.S Patel appearing on behalf of appellant-original respondent no. 3 submitted that the respondent-VMC had granted development permission in favour of the appellant after considering the record of the case. It was submitted that development permission granted u/s.29 of the Gujarat Town Planning and Urban Development Act, 1976 (“the Act” for short) can be cancelled only in the event of circumstances provided u/s.33 of the said Act. However, in the present case, no such circumstances prevailed and therefore, the learned single Judge erred in setting aside the development permission granted by the respondent-VMC. 3.1 Learned counsel Mr. Patel further submitted that a suit in respect of the title and ownership of the land in question is pending between the parties and the authority has granted permission with the condition that such permission is subject to the outcome of the said suit. Under the circumstances, the learned single Judge ought not to have set aside the development permission since the authority has already imposed the condition that such permission was subject to the final result in the suit. Further, the direction issued by the learned single Judge would amount to conferring jurisdiction on the authority to decide the issue of title of the property, which issue is already pending before the competent civil Court. Hence, the impugned order passed by the learned single Judge deserves to be set aside. 4. Mr. Further, the direction issued by the learned single Judge would amount to conferring jurisdiction on the authority to decide the issue of title of the property, which issue is already pending before the competent civil Court. Hence, the impugned order passed by the learned single Judge deserves to be set aside. 4. Mr. Shalin Mehta, learned Senior Advocate appearing with Mr. P.Y Divyeshvar for the original petitioner, submitted that the respondent-VMC ought not to have granted development permission u/s.29 of the Act in favour of the] appellant when written objections were filed by the petitioner-firm on 18.04.2015 and 23.04.2015 and Legal Notice was served on 27.05.2015 However, without considering the objections/notice, the respondent-VMC granted development permission in favour of the appellant, which is erroneous and violative of the principles of natural justice. 4.1 Learned Senior Advocate Mr. Mehta further submitted that though the respondent-VMC has imposed condition while issuing development permission, it would lead to multiplicity of proceedings since rights would be created in favour of third party, after the land is developed by the appellant and permission is granted to transfer the same. Therefore, the learned single Judge has rightly set aside the permission granted u/s.29 of the Act and is justified in issuing the directions in the impugned order. 5. Mr. Nilesh Pandya, learned counsel appearing on behalf of respondent-VMC, submitted that the authority has granted permission on the basis of the documents available on record. However, considering the peculiar facts of the case, the willingness of the Municipal Commissioner of respondent-VMC to reconsider the case was revealed before the learned single Judge. He, therefore, submitted that the present appeal deserves to be dismissed. 6. We have heard learned counsel for both the sides and perused the material on record. Having gone through the record of the case, we find that there are rival claims in respect of the ownership of the land in question. In that connection, a suit being Special Civil Suit No. 115 of 2015 has also been filed by the petitioner-firm before the Court of learned Civil Judge, Vadodara, which is reported to be pending. Considering the said aspect, the respondent-authority had granted development permission to the appellant on condition that the same shall be subject to the result in the pending civil suit. 7. Considering the said aspect, the respondent-authority had granted development permission to the appellant on condition that the same shall be subject to the result in the pending civil suit. 7. There is no dispute about the fact that the authority has committed any error while exercising powers u/s.29 of the Act in favour of the appellant except the fact that it has not considered certain details narrated in the objections/notice filed by the petitioner-firm. What is under challenge is the direction issued by the learned single Judge whereby, the development permission granted u/s.29 of the Act, with the condition that such permission shall be subject to the outcome in the pending suit, has been set aside and the authority has been directed to reconsider the case afresh. It is a matter of record that there are rival claims in respect of the title/ownership of the land in question. Both the sides claim ownership over the land in question and have also produced documents in support of their claim. 8. In our opinion, when the dispute regarding title/ownership of the land in question is pending before the competent civil Court, it would not be appropriate for us to adjudicate upon the validity or otherwise of the documents on record, on the basis of which the parties have claimed title since it may prejudicially affect the rights and/or interests of either side in the suit pending before the civil Court. It is pertinent to note that in the written objections filed by the petitioner-firm, on two different occasions and also in the legal Notice, reference was made about certain documents regarding the subject matter. Prima facie, it appears that said documents have not been produced before the respondent-VMC. In other words, the authority granted development permission to respondent no. 3, without considering the documents referred to in the objections/Notice filed by the petitioner-firm. The learned single Judge had the occasion to go through the files of the respondent-VMC and has recorded in the order that all documents, which were part of the memo of petition, were not before the Municipal Commissioner while the application u/s.27 of the Act was being considered. Therefore, it is clear that the authority had granted permission, without considering the document/s referred to and relied upon by the petitioner-firm in its objections/Notices. 9. Therefore, it is clear that the authority had granted permission, without considering the document/s referred to and relied upon by the petitioner-firm in its objections/Notices. 9. Considering the above aspects, the learned single Judge arrived at the conclusion that the authority ought to have considered said document/s referred to in the written objections filed by the petitioner-firm while dealing with the application submitted u/s.27 of the Act. The learned single Judge also took note of the fact that in pursuance of the permission granted u/s.29 of the Act, no construction work has been carried out by the appellant on the disputed land. Looking to the peculiar facts and circumstances of the case, we are of the opinion that the learned single Judge has not committed any error in setting aside the development permission granted u/s.29 of the Act and in directing the Municipal Commissioner to decide the application afresh, after considering all the relevant documents that shall be produced by both the sides. We are in complete agreement with the reasonings given by and the conclusion arrived at by the learned single Judge in the impugned order and hence, find no reason to entertain this appeal. 10. In view of the above discussion, the following order is passed; (i) Within a period of three weeks from today, both the sides shall produce all relevant documents, on which they want to rely upon, before the respondent-VMC. (ii) Within a period of six weeks thereafter, the Municipal Commissioner of respondent-VMC shall decide the application submitted by the appellant u/s.27 of the Act dated 19.02.2015, by passing a reasoned order, after hearing both the sides and after considering the entire documents on record. 11. With the above directions, the appeal stands disposed of. Consequently, the civil application stands dismissed.