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2020 DIGILAW 812 (GUJ)

Chirag Kirtikumar Mehta v. State Of Gujarat

2020-09-25

A.C.RAO

body2020
JUDGMENT : 1. Heard Mr. Viral K.Shah, learned advocate for the petitioners. Mr. Krutik Parikh, learned AGP for respondent No.1-State, Mr. Deep Vyas, learned advocate for respondent No.2 and Mr. Raj A.Trivedi, learned advocate for respondent No.3. 2. This petition challenges the inaction of the respondent No.2- Ahmedabad Municipal Corporation in not granting development permission for the land owned by the petitioner bearing Survey No. 13/1 admeasuring 12620 sq mtrs of Village Makarba Taluka City District Ahmadabad. 3. Upon hearing the matter on 11.08.2020, this Court was pleased to issue notice for final disposal while granting interim direction which was to decide the application of the petitioner dated 01/10.07.2020 (Annexure-A to the petition). 3.1 On the returnable date, the Corporation, in compliance of the direction of this Court placed on record along with its reply affidavit, the order dated 13.08.2020, by which it mandated inter alia joint signatures/consent of co-owners of the land in question i.e. Respondent Nos. 5-20 for the purposes of grant of development permission to the petitioners. Aggrieved by such order dated 13.08.2020, the petitioners by virtue of a draft amendment assailed the said order, when after, both the contesting parties were heard at length. 4. Mr. Viral Shah, appearing for the petitioners, has drawn my attention to the record of the petition and contended that the land in question originally Survey No. 13 admeasured 13456 sq mtrs. a part thereof i.e. admeasuring 12620 of the total area, as per his submission was sold to Respondent Nos. 3 and 4 through registered sale deed dated 03.11.2004, which transaction also stood reflected in the revenue record through Entry No. 9662. He has submited that such part so purchased was sought to be identified as Survey No. 13/1, and after hak durasti of such Survey No. 13/1 came to be reflected in the revenue records. 4.1 Mr. Shah, learned advocate further submits that the Survey No. 13/1 was purchased by the petitioner through registered sale deed dated 21.03.2007. That in the town planning records, Survey Nos. 13/1 and 13/2, for the reasons best known to the town planning authorities was reconstituted and identified as Final Plots 9/1 and 9/2. He would, but, assert that despite such position, there stood no dispute between the petitioners and respondent nos. 5-20 as regards the extent of their respective ownership of the lands in question. 13/1 and 13/2, for the reasons best known to the town planning authorities was reconstituted and identified as Final Plots 9/1 and 9/2. He would, but, assert that despite such position, there stood no dispute between the petitioners and respondent nos. 5-20 as regards the extent of their respective ownership of the lands in question. It is submitted that the extent of the land owned by the petitioner as per Pages 24 and 47. Such demarcation is pictorially depicted in the map, produce at page 79 in the record of the petition. It is contended that the map when read with Form F of the property in question together with the sale deed reveals that the area enclosed in points A-B-C-D and G-H-I-J admeasuring 7572 sq mtrs are owned by the petitioners whereas the area enclosed by C-D-E-F admeasuring 502 sq mtrs. are held by the Respondent Nos. 5-20. It is contended that these points earmarking the respective areas owned by the petitioners and the Respondent Nos. 5-20 are particularly superimposed upon the map provided by the Corporation – page 73 to eliminate any probability of slightest discrepancy. 4.2 It is contended by learned advocate that the extent of the land owned by petitioners was distinctly demarcated and with which position the Respondent Nos. 5-20, who were the joint owners of the land would also not dispute. It is submitted that with a view to enjoy the property in the form of land in question, the petitioner, applied for seeking development permission before the Corporation. As per petitioner, initially the Corporation exhibited inaction in processing such application whilst insisting for an NOC from the Respondent No. 5-20, which constrained the petitioner to prefer the present petition. Such insistence of the Corporation was later transposed into order dated 13.08.2020, when it decided the application of the petitioner pursuant to the direction issued by this Court as stated above through order dated 11.08.2020 – page 71. 4.3 It is submitted that the initial inaction of the Corporation of non grant of development permission, and later the refusal thereof through its order dated 13.08.2020, by submitting that the non-grant of development permission impinges upon the petitioner’s right to property. It is submitted that the Hon’ble Apex Court has more recently held that the right to property is not only a constitutional right but also a human right. To buttress his submissions Mr. It is submitted that the Hon’ble Apex Court has more recently held that the right to property is not only a constitutional right but also a human right. To buttress his submissions Mr. Shah has relied upon the judgment rendered by the Hon’ble Supreme Court of India in Civil Appeal No. 6156 of 2013 being the case of Hari Krishna Mandir Trust Vs. State of Maharashtra. Mr. Shah would lay emphasis upon the following observations of the Hon’ble Apex Court: “96.The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and ahuman right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others. In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law…” 5. Per Contra, while vehemently opposing the petition, Mr. Deep. D. Vyas, appearing for the Corporation preliminarily objected to the maintainability of the petition by contending that the petitioner would have an alternative remedy under Section 67A of the Gujarat Town Planning and Urban Development Act, 1956, since the said provision was incorporated by way of an amendment to mitigate circumstances as were faced by the petitioner. He has also meticulously taken this Court through the scheme of the Act, 1956 as also the Gujarat Provincial Municipal Corporation Act, 1949. 5.1 Mr. Vyas while taking this Court through the affidavit in reply filled to the petition would rely upon the following averments contained therein :- “6. Before dealing with the petition on merits, it would be imperative to mention that the areas in question compromise in Final TP Scheme No. 84/A (Makarba) which is been finalized by the State Government vide Notification dated 8.3.2018. That, on sanctioning of the scheme under provisions of sub section 3 of Section 65 the same becomes part of the act and all rights settled by the town planning officer with respect to the original plot, which is been reconstituted into final plots, have become final and are binding between the parties. 7. That, under the sanctioned scheme, with respect to land bearing Survey No. 13 against Original Plot No. 9 admeasuring 13456 sq. mtrs. The owners have been jointly allotted 2 Final Plots bearing Nos. 9/1 and 9/2 admeasuring 5629 and 2445 sq. mtrs . 7. That, under the sanctioned scheme, with respect to land bearing Survey No. 13 against Original Plot No. 9 admeasuring 13456 sq. mtrs. The owners have been jointly allotted 2 Final Plots bearing Nos. 9/1 and 9/2 admeasuring 5629 and 2445 sq. mtrs . That, while setting the redistribution details, it is observed and significantly mentioned in column no. 16 that the right and share of owners in the final plot would be in proportion to their right and share in the original plot . Copy of the part plans along with redistribution details, as settled by the town planning officer and sanctioned by the State Government is annexed hereto and marked as Annexure R/2. 8. It is submitted that under the circumstance, where the land has been jointly allotted to more than one owners and the original plot has been reconstituted in final plots, in absence of defining and demarcating the areas of the respective shares, it would not be within the authority of Corporation to grant development permission on the basis of an application filed partly by one and not by all joint owners. 9. It is submitted that the Corporation being the authority has bounded duty to implement the scheme as sanctioned by the State Government . It is submitted that in absence of any challenge to the town planning scheme and redistribution rights as sanctioned by the State Government, where all owners are jointly allotted final plots, an application by one owner for defining and demarcating his share, the same is neither maintainable nor tenable. 11. It is submitted that even otherwise the respondent-authority has no authority to grant development permission., bereft of the demarcation of the areas, which is been jointly allotted to the owners and an application for development permission is required to be filed by submitting necessary plans and documents, in the prescribed format on payment of requisite fees.” 6. Mr. Parikh, Ld. AGP has contended that the dispute is to grant development permission or not. The respondent state is not concerned with the dispute between respondent corporation and the petitioners. 7. Mr. Shah would rejoined by repelling the submissions of Mr. Vyas and states that Section 67 A has no applicability in the facts of the present case. Mr. Parikh, Ld. AGP has contended that the dispute is to grant development permission or not. The respondent state is not concerned with the dispute between respondent corporation and the petitioners. 7. Mr. Shah would rejoined by repelling the submissions of Mr. Vyas and states that Section 67 A has no applicability in the facts of the present case. He strenuously submitted that the ground of the Corporation to deny development permission i.e. the land in question being bereft of demarcation amongst its joint owners viz. petitioners and Respondent Nos. 5-20, is an irrelevant consideration, which is contrary to record that clearly indicates distinct demarcation of the extent owned by the petitioners and the Respondent No. 5-20. He would draw this Courts attention to the mandate of the Hon’ble Apex Court given in Hari Krishna Mandir Trust (supra) as follows: 100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration. 101. In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority. 102. In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Directors of Settlements, Andhra Pradesh and Others v. M.R. Apparao and Anr. Pattanaik J. observed: “One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right which entitles him to any of the rights and that such right has been infringed. Pattanaik J. observed: “One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, “Mandamus” means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. The duty that may be enjoined by mandamus maybe one imposed by the Constitution, a statute, common law or by rules or orders having the force of law.” 103. The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same. 104. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same. 104. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must been exercised on sound judicial principles. Reference may be made inte ralia to the judgments of this Court Gunwant Kaur v. Municipal Committee, Bhatinda and State of Kerala v. M.k. Jose. In M.K. Jose (supra), this Court held:- “16. Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3SCC 769], it has been held thus: (SCC p. 774, paras 14-16) “14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons. 15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.” (emphasis supplied) 105. In ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., this Court referring to previous judgments of this Court including Gunwant Kaur (supra) held: - “19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [ (1969) 3 SCC 769 ] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can betaken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition 2 even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. 27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule; c) A writ petition involving a consequential relief of monetary claim is also maintainable.” Relying upon the above observations of the Hon’ble Apex Court, Mr. Shah would urge to allow this petition. 8. At this stage, it is required to be noted that despite issuance of notice for final disposal, the Respondent Nos. 5- 20 have chosen not to appear. 9. Having heard the contesting parties at length, and after examining the record of the petition this Court notices the following undisputed facts 9.1 The petitioner purchased Survey No. 13/1 vide a registered sale deed dated 21.03.2007 thereby becoming absolute owner thereof from such date. 9.2 The Town Planning Scheme No. 84/A in which the land in question is comprised came to be sanctioned much later i.e. 08.03.2018. 9.3 The respondent offers no explanation as to why despite distinct identifications in the revenue records since 2007, Survey No. 13/1 and 13/2 were given joint final plots 9/1 and 9/2 post reconstitution owing to the advent of the TPS No. 84A. 9.3 The respondent offers no explanation as to why despite distinct identifications in the revenue records since 2007, Survey No. 13/1 and 13/2 were given joint final plots 9/1 and 9/2 post reconstitution owing to the advent of the TPS No. 84A. 9.4 Be that as it may, despite the above anomaly at the behest of the respondent authority, the extent of holding of both the petitioners as also Respondent No. 5-20 is admeasured, demarcated, distinct and indisputable as would arise from the record, i.e. the registered sale deed of the holding of the petitioner at Pages 24 and 47 as also the map at Annexure R1 and the Form F from the Municipal Records available at Page 72. It cannot be refuted that area admeasured and enclosed as A-B-C-D and G-H-I-J are owned by the petitioners and C-D-E-F is owned by the Respondent Nos. 5-20. 9.5 The refusal of the corporation to grant development permission as is apparent from the order dated 13.08.2020, is founded upon the grounds that the application of the petitioner was not in the prescribed format and that it lacked the consent of the joint owners who have their rights in the land in question as joint owners. There is nothing on record to show that the land is jointly owned by the petitioners. I do no find any reason from the respondent -corporation for not considering the registered sale-deed of the petitioners. It is now well settled by catena of judgments of the Apex Court that revenue entry does not create right, title, interest in the property. Renumbering of revenue survey number is nothing but a type of revenue entry. By stretch of imagination it cannot be said that if town planning authority renumbers two survey numbers in one plot number the owners of two survey numbers become joint owner of the plot. 10. It is in the context of the above undisputed facts that the resistance of the Corporation to the maintainability of the petition as also grant of reliefs prayed in the petition may have to be tested. 10.1. The Corporation has objected to the maintainability of the petition by relying upon 67A of the Act to state that the remedy available there in countenances the grievance of petitioner. 10.1. The Corporation has objected to the maintainability of the petition by relying upon 67A of the Act to state that the remedy available there in countenances the grievance of petitioner. Section 67A appears in the Statute books as under :- SECTION 67A : Manner of resolution of grievances after sanctioning scheme (1) In case where the final plot is allotted in joint ownership in the sanctioned preliminary or final scheme, then on application being made to the Committee by any of the joint owners, the Committee constituted under sub-sec. (2) shall give a notice to all the concerned and after giving them an opportunity of being heard, shall with respect to such final plot define the share of the joint holders and demarcate the area that may be allotted to each of them. (2) The committee shall consist of the following members, namely: (i) the Secretary, Urban Development and Urban Housing Department, shall be the Chairman; (ii) the Chief Town Planner, - Member Secretary, ex-officio, and (iii) any other member, appointed by the Chairman. (3) The decision of the Committee in this regard shall be deemed to be the part of the scheme sanctioned under Sec. 65. An examination of the above provision indicates that the same seeks to remedy grievances related to demarcation of the area of final plot or for defining share of a joint holder. As opposed to the object of the above provision, the grievance of the petitioner is not with respect to defining its share in the final plot, or demarcate their area thereof, but, is with respect to non grant of development permission. It can thus be deduced and accordingly held that the contention of the Corporation that the remedy under Section 67A would sub-serve the petitioner as an alternative remedy to mitigate their grievance is thoroughly misconceived. The preliminary objection of the Corporation is hence over ruled as being baseless and misconceived. 10.2 Having held as above, this Court would now delve into the merits of the defense of the Corporation. 10.2.1 The Corporation in its reply has stated that the original Survey No. 13 was re-constituted as Final Plot No. 9/1 and 9/2 post the advent of TPS No. 84A. As to how would the respondent authority be justified in its reconstitution despite Survey Nos. 10.2.1 The Corporation in its reply has stated that the original Survey No. 13 was re-constituted as Final Plot No. 9/1 and 9/2 post the advent of TPS No. 84A. As to how would the respondent authority be justified in its reconstitution despite Survey Nos. 13/1 and 13/2 distinctively identified in the revenue records since 2007 remains to be an aspect of inquiry. There is also no justification forthcoming from the Respondents for such a gaffe if at all it is one. 10.2.2 Even after such reconstitution inconsistent with the revenue records, there is admittedly no dispute with respect to the extent of holding interse the petitioners and the Respondent Nos. 5-20. The contention of the petitioner qua such position is well supported and rather corroborated by the record as is available not only at Pages 24 and 47 and arising out of the map placed with the rejoinder of the petitioner but also with municipal records i.e Form F. Neither the demarcation at Page 24 and 47 nor defined areas depicted in the map annexed with the rejoinder of the petitioner is disputed or controverted by any of the Respondents and particularly the Corporation. 10.2.3 Thus, the undisputed extent of the petitioners holding from the Final Plots 9/1 and 9/2 which is admeasured, defined and demarcated stands to be established. Such position viz-a-viz the Respondent Nos. 5-12 predated the application of the petitioner seeking development permission and also stood accepted by the Corporation when it neither controverted nor disputed such demarcations in its affidavit-in-reply or after they were re asserted in the rejoinder by the petitioner. 10.2.4 As a corollary of the above analysis it is held that the claim of the petitioners for seeking development permission is with respect to the extent of their holding in the final plots 9/1 and 9/2 which is defined and demarcated. 10.2.5 In view of the forgoing examination, and since the extent of the holding of the petitioner is held to be admeasured defined and demarcated as A-B-C-D and G-H-I-J available on the map read with Form F and the sale deed of the petitioner, the insistence of the Corporation warranting consent of the Respondent Nos. 5-12 while processing the application for development permission of the petitioner is held to be irrelevant and unreasonable. 5-12 while processing the application for development permission of the petitioner is held to be irrelevant and unreasonable. 10.2.6 At the same time since the Corporation fails to present a basis for such insistence of requiring consent of Respondent No. 5-12 while processing the application seeking development permission of the petitioner in the form of a policy or a provision of law, the said requirement is held as arbitrary. 10.2.7 I find force from the observations made by the Hon’ble Apex Court in Hari Krishna Mandir Trust (supra) this Court is constrained to render the above findings of facts which are based upon records and are also undisputed and uncontroverted at the end of the Respondents. The petitioner as an absolute owner of his holding has not only a constitutional right but also a human right to enjoy his property. The petitioners cannot be deprived off their such right in property by the Corporation on irrelevant, unreasonable and arbitrary grounds. The refusal to process/grant development permission to the petitioner by the Corporation tentamounts to a failure of duty. 11. On foregoing discussion, the petition is partly allowed by passing the following directions: 11.1 The order dated 13.08.2020 passed by the Corporation is quashed to the extent that it requires consent of the Respondent Nos. 5-20 for processing/granting development permission to the petitioners. 11.2. The petitioners are hereby directed to make the application seeking development permission as per the prescribed format and after payment of due fees as also post making the necessary submissions as are required in law qua the petitioners' property as established and held hereinabove. 11.3 If such application as stated above is made by the petitioners, the respondent Corporation is directed to consider the application of the petitioners seeking development permission and subsequently grant the same in accordance with law within 90 days from the receipt of such application. 11.4 Parties to bear their own cost. With above observations and directions, present petition stands disposed of.