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SCA/8892/2011 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8892 of 2011
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BHASKAR
J SHUKLA - Petitioner
Versus
STATE
OF GUJARAT THROUGH CHIEF TOWN PLANNER & 2 - Respondents
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Appearance :
M/S
THAKKAR ASSOC. for Petitioner :
MR. HK PATEL, LD. AGP for
Respondent: 1,
None for Respondents : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 07/10/2011
ORAL
ORDER
Draft
amendment is allowed. Same shall be carried out.
Heard
learned advocate for the petitioner. The petitioner under Article
226 of the Constitution of India has approached this Court with
following prayers:-
“(A).
Your Lordships may be pleased to issue a writ of mandamus or any
other appropriate writ, order and/or directions, quashing and setting
aside the impugned order dated 15.3.2010 passed by respondent no.2
(Annexure A) as being illegal, arbitrary, unjust, unreasonable and an
order made in violation of principles of natural justice.
(B) Your
Lordships may be pleased to issue a writ of mandamus or any other
appropriate writ, order and/or directions, directing the respondent
no.2 to forthwith cancel the development permission granted vide
order bearing No. PRM 11/2003 dated 1.7.2004 in respect of land
bearing survey No. 1/13/2 situated at Mouje : Kalol, District :
Gandhinagar as being contrary to relevant regulations of the Gujarat
Development Control Regulations framed u/s. 12 of the Gujarat Town
Planning and Urban Development Act, 1976;
(C)
Your Lordships may be pleased to stay the impugned order dated
15.3.2010 passed by respondent no.2 (Annexure A) as being illegal,
arbitrary, unjust, unreasonable and an order made in violation of
principles of natural justice.
(D)
Your Lordships may be pleased to direct the respondent no.2 to
forthwith act in accordance with the applicable regulations under
the Gujarat Development Control Regulations for the breach committed
in respect of land bearing survey No. 1/13/2 situated at Mouje:
Kalol, District: Gandhinagar, pending the admission hearing and
final disposal of this petition in the interest of justice;
(E)
Your Lordships may be pleased to grant such other and further reliefs
as deemed fit in the interest of justice.”
Thus
essentially what is challenge in the communication dated 15/3/2010
issued by respondent no. 2 & 3 indicating therein that there
exists no case for revoking development permission granted in favour
of the land owner of land bearing Survey No. 1/13/2.
The
facts as culled from the memo of the petition, and leading to filing
this petition deserve to be set out as under.
The
land bearing survey no. 1/13 admeasuring 51726 sq. meter (approx)
situated at mouje Kalol, District Gandhinagar was in the name of late
Shri Mohanbhai Lalubhai Shukla, grandfather of the petitioner. After
the demise of Shri Mohanbhai Lalubhai Shukla, the said land was
divided in to two equal parts i.e. Revenue Survey No. 1/13/1
admeasuring 25863 sq. meter in the name of Jaydevbhai Mohanbhai and
Revenue Survey No. 1/13/2 admeasuring 25863 sq. meter in the name of
Reghubhai Mohanbhai. The revenue records were accordingly mutated.
The petitioner is managing affairs of land bearing survey no. 1/13/1
in his capacity as power of attorney holder on behalf of all the
family members of late Shri Jaydevbhai Shukla after the demise of
Shri Jaydevbhai Shukla. The plans for development were placed in
respect of and bearing survey no. 1/13/1 in the year 1998 for
proposed housing scheme to be implemented in 18363 sq. meter out of
25863 sq. meters of land of survey no. 1/13/1. The plans were
sanctioned vide order dated 18/7/1998. Thereafter petitioner sold
18363 sq. meter of land to one Ishwar Corporation and balance 7500
sq. meter of land of said survey no. 1/13/1 is retained by the
petitioner. The petitioner has averred in the memo of the petition
that one Reghudevbhai – brother of late Shri Jaydevbhai &
uncle of the petitioner transferred his share of land bearing revenue
survey no. 1/13/2 admeasuring 25863 sq. meter to one Shri Jaydeepsinh
A. Bhati, who in turn as power of attorney holder of uncle of the
petitioner, submitted a plan to respondent no.2 for the proposed
Housing society (Tenements) in respect of land bearing revenue survey
no. 1/13/2. Petitioner in the memo of the petition averred that
respondent no.2 vide order dated 1/7/2004 sanctioned the plan. The
said plan was not indicating of correct land and the land belonging
to the petitioner were shown to be part of the land for which the
plan was sought to be placed and development permission was sought to
be obtained. Therefore petitioner made various representations and he
had to move this Court also time & again for seeking appropriate
relief, wherein this Court directed the authorities to decide the
representation of the petitioner in accordance with law. The
petitioner preferred Regular Civil Suit No. 85/2005 before the
competent court wherein the petitioner has succeeded in obtaining
appropriate injunction order against the concerned person for not
putting up construction in any manner on the land which is prima
facie said to be belonging to the petitioner, and it is forming part
of the plan. This injunction order dated 15/10/2005 is also pressed
into service. However same is not available as respondent authorities
have sent communication dated 15/3/2010 which is impugned in this
petition and also the inaction on the part of respondent authorities
in not supplying the petitioner copies of report of District Land
Records Officer’s drawings for declining the claim of the petitioner.
Mrs.
Pahuwa, learned advocate appearing for the petitioner relying upon
provision in the form of Section 3.8 of the GDC Regulations, framed
under Gujarat Town Planning & Urban Development Act 1976
submitted that the development permissions if obtained fraudulently
then, there exist discretionary authority to revoke the same.
Emphasis is placed in Regulation 3.8 of the Regulations.
Mrs.
Pahuwa further submitted that the communication dated 15/3/2010
impugned in this petition do not indicate anywhere that the
petitioner was supplied with copies of record or documents which
have been relied upon by the authority, namely communication and
drawings from the office of District Land Record Inspector.
Petitioner therefore was constrained to file appropriate
representation seeking copies of those documents which were sought
to be relied upon by the authority, in declining to the petitioner.
However that attempt was also remained unanswered and therefore the
petitioner is left with no choice but to approach this Court under
Article 226 of the Constitution.
This
Court is of the considered view that the petition is misconceived
and is required to be dismissed for the following reasons, namely:-
(i)
The attempt on the part of the petitioner to cerate locus appears to
be on account of provision of Regulation 3.8 of the Regulations
governing development in the area which is required to be set out as
under:-
“3.8
– Cancellation of Permission
The
development permission, if secured by any person by any
misrepresentation or by producing false document, such development
permission will be treated as cancelled / revoked.”
This
Regulation, in my view, would not confer upon and clothe with any
locus to the petitioner to inform authority to exercise its
discretion on the facts which are highly disputed and which are
subject matter of civil court jurisdiction, wherein civil court
though recorded its prima facie opinion but has not rendered final
conclusion with regard to ownership of the land in question. The
question arises as to whether the authority can be called upon to act
on the strength of civil court’s interim order which is nothing but
merely on prima facie opinion of the court for revoking permission,
namely development permission in exercise of Regulation 3.8 of the
Regulations, which essentially requires fraud on the part of the
person concerned.
(ii)
The disputed question of law and its exercise cannot be subject
matter of scrutiny under article 226 of the Constitution. The
petitioner is already protected by the appropriate interim order
granted by the competent court vide order dated 15/10/2005 in
Regular Civil Suit filed by the petitioner. Under those prohibitory
order the concerned person who had sought development permission and
who had been granted and whose permission is sought to be cancelled
is sufficiently refrained from putting up any construction on the
land in question. Therefore, in my view, this petition is not
required to be entertained.
(iii)
The petition cannot be entertained which filed for seeking mandatory
writ against the orders of two authorities, when prima facie it
appears from the order that the discretion is exercised based upon
the record and proceedings or opinion of the inspector of land
record, then this Court under article 226 of the Constitution would
not interfere at the behest of a party who has merely obtained
interim injunction and whose dispute with regard to land in
question is yet to be adjudicated upon by the competent civil court.
This
brings this Court to consider the question whether the communication
dated 15/3/2010 can be said to be a communication not in accordance
with law. I am afraid, the submission canvassed by learned counsel
on behalf of the petitioner that this cannot be said to be a
communication in accordance with law, if accepted, then, it will
lead to render the exercise under 3.8 Regulation to be adversary
litigating provision which even the regulations are not acknowledged
and therefore, such an interpretation of Regulation 3.8 is uncalled
for. The discretion of not revoking development permission is not
final as it is the civil court to decide and in case ultimately
the civil court is in favour of the petitioner then naturally the
action taken by the person in whose favour development plan is
existing would be absolutely subject to result of the same.
Before
parting, the Court is constrained to observe that the petition is
otherwise also required to be dismissed as a person against whom the
relief is sought has not been joined as party respondent, and
therefore, on this ground of non-joinder of appropriate party also
the petition is required to be dismissed. Though Mrs. Pahuwa at this
stage submitted that the concerned respondent was to be joined as
party. Be that as it may, the Court has already opined that the writ
petition is required to be dismissed and is accordingly dismissed.
However, no order as to costs.
[
S.R. BRAHMBHATT, J ]
/vgn
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