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2020 DIGILAW 423 (GUJ)

Dipakbhai Jashvantbhai Rathod v. Secretary

2020-03-06

A.Y.KOGJE

body2020
ORDER : 1. This petition under Article 226 of the Constitution of India is filed seeking direction for quashing and setting aside the order dated 03.02.2020 and 26.02.2020 by the respondent No.3-The Chief Officer, Talaja Nagarpalika. 2. The petitioners have taken the Court through the various documents to contend that the petitioners have come in possession of the land in question under due process from the erstwhile allottee of the plot by the municipality. It is submitted that after the following the due procedure, the petitioners had received the permission for construction and started putting up the construction and in the midst of the construction, without following due process of law and without giving an opportunity of hearing, the impugned notices have been issued as by virtue of this ongoing construction of the petitioners has come to a standstill. 3. Learned advocate submitted that initially land was allotted on the basis of 99 years lease to the erstwhile owner and heirs of Manharlal Gagnadas namely Rajesh Manharlal Rathod and Mrudula Manhalrlal Rathod. It is submitted that thereafter, the Nagarpalika passed a Resolution and moved proposal for giving property in question on sale basis to erstwhile owner namely Manharlal Gangadas and his heirs. Accordingly, price was fixed by the State Government and option was left for fixing the price by the District Valuation committee which ever price fixed was higher was to be charged for such purpose. Accordingly, the predecessor of the petitioners had made payment which was quite high as per the market rate fixed by the Valuation committee and was paid to the Talaja Nagarpalika. He drew attention of this Court to such communication of the Chief Officer to the Resident District Collector and the receipt of payment. It is submitted that thereafter as the land was sold in favour of heirs of Mr. Manharlal Gangadas, original allottee the petitioners thereafter entered into sale deed with the heirs of Mahlarlal Gangadas and became the owner of the land. 3.1. It is submitted that that the petitioners thereafter had made an application and sought for development permission which was also granted in the name of one Dipakbhai Jaswantbhai Rathod-the petitioner No.1 herein and accordingly, the construction had proceeded. 3.1. It is submitted that that the petitioners thereafter had made an application and sought for development permission which was also granted in the name of one Dipakbhai Jaswantbhai Rathod-the petitioner No.1 herein and accordingly, the construction had proceeded. It is submitted that under the Right to Information proceedings, the petitioners came to know that the permission for the said sanction of the State Government under communication dated 01.02.2019 is not genuine permission and does not form part of the record of the State Government. Therefore, treating such permission to be fake permission, an FIR came to be registered against the erstwhile allottee. It is submitted that the said FIR does not consist Section 120B of the Indian Penal Code and is registered only against erstwhile allottee namely Rajesh Manharlal Rathod and therefore, the petitioners have no role to play as per the FIR. It is also submitted that the said Rajesh Manharlal Rathod has been granted anticipatory bail by this Court vide order dated 28.02.2020 in Criminal Misc. Application No. 3919 of 2020, wherein the Court has observed in paragraph No.6(b) as under:- 6(b) Learned advocate for the applicant has referred to the order dated 10.11.2005 passed by the Government, by which it was decided to grant the land-in-question on permanent basis to the applicant after taking necessary amount from the applicant and after the amount decided by the District Valuation Committee, applicant has to deposit the same amount within a stipulated period and after the amount deposited by the applicant, the Collector was required to pass formal order.” 3.2. It is therefore, submitted that there is no role that the petitioners have played in the entire episode especially granting permission to sale and therefore, as the petitioners are now bonafide purchasers for value and hence, directions contained in the impugned notice and communications are directly affecting the petitioners and without giving an opportunity of hearing or without issuing any notice to the petitioners. 3.3. In view of the aforesaid, the communications and the notices may not be proceeded further and the petitioners be permitted to carry out with the construction as per the building permission. 3.4. 3.3. In view of the aforesaid, the communications and the notices may not be proceeded further and the petitioners be permitted to carry out with the construction as per the building permission. 3.4. Learned advocate has thereafter referred to Section 65(2) of the Municipality Act to contend that the municipality was within its power to enter into lease first and thereafter sale as the Government has granted Previous permission and therefore, when the petitioners had acted on such order, the petitioners cannot be now punished. It is submitted that the municipality under Section 261 of the Act is within its power to take necessary action in such situation however, no such action as contemplated under Section 261 of the Act is undertaken by the municipality before issuing notice by which the construction of the petitioners is stalled. 4. Learned advocate has thereafter relied upon the judgment of the Hon’ble Supreme Court, in the case of Sangram Singh v/s. Election Tribunal, Kotah and another, reported in AIR 1955 SC 425 and more particularly relying upon in para-10 submitted that certiorari will have to be issued when the Court or the Tribunal acts illegally in exercise of its undoubted jurisdiction, the same is done without giving an opportunity of hearing to the parties to be heard. It is submitted that in the instant case also before issuing of notice and communication, the construction of the petitioners has been stalled and no opportunity of hearing has been given to the petitioners. Reliance is also placed upon the decision of Hon’ble Supreme Court, reported in the case of The Purbatpur Company Limited v/s. Cane Commissioner of Bihar and others, reported in AIR 1970 SC 1896 and more particularly relying upon on para-17 submitted that in quashi judicial proceedings principles of natural justice are required to be followed even if the same are not finding any place in the statute. 5. The Court has considered the submissions of learned advocate for the petitioners and perused the documents placed on record. The crux of the matter is order dated 01.02.2019 passed under purported signature of Deputy Secretary, Urban Development and Urban Town Planning Department. 5. The Court has considered the submissions of learned advocate for the petitioners and perused the documents placed on record. The crux of the matter is order dated 01.02.2019 passed under purported signature of Deputy Secretary, Urban Development and Urban Town Planning Department. It is the case which has come on record that this document is outright forged and fabricated and therefore, the previous sanction for sale of the land in question was non existent and therefore, the sale in favour of the erstwhile allottee Rajesh Manharlal Rathod was based on the document which was forged even from the record of the Government. Therefore, apparently, to arrest ongoing development which is based on such forged and fabricated document, the impugned communications are issued. 6. The matter pertains to immovable property having city survey No.1828 admeasuring 1328.59 Sq.Mtrs of land situated at Gopnath Road, Taluka: Talaja, District: Bhavnagar. Under the previous proceedings, the Talaja Nagarpalika had at the relevant time passed a Resolution in favour of one Manharlal Gangadas Rathod to lease the land for a period of 99 years. Pursuant to which land was given on lease and the resolution in that connection is dated 10.11.2005 was issued. In the said resolution, the land price was fixed at the rate of Rs.230/- per sq,mtr. However, the same was to be made subject to the decision of the District Valuation committee and by charging the price whichever was higher, formality with regards to entering in the sale was to be carried out. Apparently, nothing has happened after such resolution as no amount was deposited by the erstwhile allottee. 7. It appears that thereafter, the proposal was moved by the Tajaja Nagarpalika by a communication dated 01.01.2018 for the purpose of sale of the land instead of giving on lease for 99 years. Based on such proposal, it appears that exercise of fixing the price was undertaken as per the decision of 2005 and ultimately, in the year 2018, the price was fixed by the District Development Committee at Rs.2700/- per sq. mtr and accordingly, an amount of Rs.35,87,193/- was paid by the erstwhile allottee with the Nagarpalika. The amount was deposited on 04.04.2018, the receipt for which was issued on the same day. 8. mtr and accordingly, an amount of Rs.35,87,193/- was paid by the erstwhile allottee with the Nagarpalika. The amount was deposited on 04.04.2018, the receipt for which was issued on the same day. 8. It appears that prior to such deposit, sanction was also required from the State Government and therefore, reliance was placed by the Nagarpalika on the communication dated 01.02.2019. In the said resolution of the State Government dated 01.02.2019, it is stated as under:-. “With reference to above subject, Talaja Nagarpalika has passed the Resolution No.23 during its general meeting dated 22/03/1999 to allot the land owned by Talaja Nagarpalika located in Talaja Nagarpalika area having City Survey No.1828 admeasuring 1328.59 sq. mt. to Shri Rajesh Manharlal Rathod- heir of Shri Manharlal Gangadas Rathod by way of sale on permanent basis. Pursuant to the same, the Collector, Bhavnagar assessed value of aforesaid land at Rs.2700/- per sq. mt. in the meeting of the District Assessment Committee on 27/03/2018. Pursuant to the letter of the Collector bearing No.:Muni/2/Vashi/290/2018, the applicant has deposited the sale amount of aforesaid land with Talaja Nagarpalika. After due consideration regarding guidance sought in that regard, approval of the Government is hereby granted to the Resolution of Nagarpalika under Section 65(2) of the Gujarat Nagarpalika Act, 1963 as per the proposal of Nagarpalika.” 9. It appears that thereafter, on 02.03.2019, the sale deed was executed by the Nagarpalika in favour of the legal heir of the erstwhile allottee namely Rajesh Manharlal Rathod and thereafter on 29.03.2019, the registered sale deed was executed between the said Rajesh Manharlal Rathod and the present petitioners. 10. It appears that on the basis of some RTI proceedings, it was found that the resolution dated 01.02.2019 does not exist on the record of the State Government particularly in the department of Urban Town Planning. In that connection, an FIR being C.R.No.11216008200056 with Gandhinagar Sector-7 Police Station was filed, wherein the subject matter of investigation was the same resolution dated 01.02.2019. The allegations in the FIR go on to state that the signatory of the land has not actually signed the said order and that there is no record of such order even in the file of the department. 11. Therefore, prima-facie the Court is of the view that the document being resolution dated 01.02.2019 appears to be a fake and fabricated document. 11. Therefore, prima-facie the Court is of the view that the document being resolution dated 01.02.2019 appears to be a fake and fabricated document. Considering the fact that such document is the foundation for the subsequent action on the part of the Nagarpalika in executing sale deed in favour of legal heirs of erstwhile allottee and when such document prima-facie is found to be forged and fabricated any further action on such document cannot be permitted to be proceeded. 12. The Court has observed that the original resolution in favour of father of Rajesh Manharlal Rathod was of the year 2005 and that too for the purpose of lease of 99 years. It appears that thereafter, there is no development in the matter and straightway in the year 2013, the petition is filed for seeking direction to act according to the said resolution of 2005. Thereafter also, only in the year 2018, again movement is seen and that too with regards to the change in the decision from converting the land in question from lease to direct sale in favour of the erstwhile allottee or his legal heirs. As per the provision particularly Section 65 of the Act, previous sanction is required for executing sale deed. Reliance is placed upon the document being resolution dated 01.02.2019 which prima-facie is a fabricated document and under criminal investigation and thereafter, in quick succession execution of sale deed takes place between the Nagarpalika and the erstwhile allottee or his legal heirs on 02.03.2019 and similarly in quick succession i.e. on 29.03.2019 another sale deed is executed by the heirs erstwhile allottee and Rajesh Manharlal Rathod in favour of the present petitioners. The chronology of incident prima-facie cannot rule out the role that the petitioners may have also played in getting such resolution dated 01.02.2019 on record and in quick succession executing two sale deeds. Further, the matter is now investigated in an FIR and therefore, the Court is not inclined to dwell any further on this issue. Nonetheless it is prima-facie found that the very document (previous sanction of Government.) being under cloud which is the starting point of sale deed in favour of erstwhile allottee, the respondent authorities were duty bound to act in an fashion so as to arrest any ongoing development pursuant to such alleged forged and fabricated document. Nonetheless it is prima-facie found that the very document (previous sanction of Government.) being under cloud which is the starting point of sale deed in favour of erstwhile allottee, the respondent authorities were duty bound to act in an fashion so as to arrest any ongoing development pursuant to such alleged forged and fabricated document. The Court there for, finds that action on the part of the respondents in issuing the communication dated 22.02.2020, 03.02.2020 and 26.02.2020 are justified at this stage and it is premature to entertain this petition till the cloud on the alleged fabricated and forged document based on which the action has been taken by the Nagarpalika in disposing of the land in question is cleared. 13. Reliance is placed upon the judgment of Apex Court in case of Sangram Singh (Supra) in support of the argument of issuance of certiorari on the ground of opportunity to parties to be heard, it is pertinent to observe that in the aforesaid judgment, the Apex Court was dealing with the provisions and powers of the High Court with regards to representations of the People Act. Therefore, the Court is within its power to issue a writ under Article 226 of the Constitution of India on the issue no not giving an opportunity to the parties to be heard as the same being in violation of principles of natural justice however, in the facts of the present case, the Court does not find any overwhelming fact to invoke the jurisdiction of this Court on such ground. 14. Reliance is also placed in the judgment of Apex Court in the case of The Purbatpur Company Limited (Supra), for invoking Article 226 of the Constitution of India in case of breach of principles of natural justice, it is submitted that vide this judgment, the Apex Court has held that even if the rules of natural justice are not embodied in the rules, the question of fulfilling the requirement of natural justice have to be met with by the procedure adopted. In this case, the Apex Court was examining the issue of excluding 99 villages from the area reserved under Clause-6 of the Sugar Cane (Control) Order, 1966 which was the subject matter of challenge before the High Court under Article 226 of the Constitution of India. In this case, the Apex Court was examining the issue of excluding 99 villages from the area reserved under Clause-6 of the Sugar Cane (Control) Order, 1966 which was the subject matter of challenge before the High Court under Article 226 of the Constitution of India. The facts of the same being completely on different footing and examining the facts applying Article 226 of the Constitution of India in the present case is unwarranted. 15. With the aforesaid, no case is made out for interference at this stage. The petition deserves to be and the same is hereby dismissed.