SCA/11952/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11952 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= = BHAVNAGAR MUNICIPAL CORPORATION - Petitioner(s) Versus SHARDABEN RASIKLAL MEHTA & 5 - Respondent(s) ========================================================= = Appearance : MR HS MUNSHAW for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 6. NOTICE SERVED BY DS for Respondent(s) : 1 - 2,5 - 6. MR DHAVAL M BAROT for Respondent(s) : 1, MS SUNEETA R SHUKLA for Respondent(s) : 3, MR RK MISHRA for Respondent(s) : 4, MR. AMIT PATEL ASSIT. GOVERNMENT PLEADER for Respondent(s) : 5, ========================================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/12/2008 ORAL JUDGMENT 1. Rule. Shri Dhaval Barot, learned advocate waives SCA/11952/2008 2/13 JUDGMENT service of notice of rule on behalf of the respondent No. 1, Ms. Suneeta R. Shukla, learned advocate waives service of notice of rule on behalf of the respondent No. 3, Shri R.K. Mishra, learned advocate waives service of notice of rule on behalf of the respondent No. 4 and Shri Amit Patel, learned AGP waives service of notice of rule on behalf of the respondent No.5. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner original defendant No.5 Bhavnagar Municipal Corporation has prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 3.6.2008 passed below Exh. 26 in Regular Civil Suit No. 303 of 2008 passed by the learned Principal Senior Civil Judge, Bhavnagar by which learned trial Court in the application submitted by the original defendant No.1 only has directed the Competent Authority of the petitioner Municipal Corporation to decide the question of granting or refusing of permission for construction of any member of Roopali Cooperative Housing Society ltd., Bhavnagar within a prescribed period of 90 days from the date of application and while allowing the said application Exh. 26 the learned Principal Senior Civil Judge, Bhavnagar has SCA/11952/2008 3/13 JUDGMENT passed the following order: 1.The Competent Authority of the defendant No.5 Bhavnagar Municipal Corporation shall decide the question of granting or refusal of permission for construction of any person of the Society Roopali Co- operative Housing Society, Bhavnagar within the prescribed period of 90 days from the date of application. 2.The defendant No. 5 Bhavnagar Municipal Corporation shall not refuse the permission of construction on the ground of pendency of Regular Civil Suit No. 471 of 1991 in this Court. 3.In case of granting permission of construction to any person the defendant No.5 Bhavnagar Municipal Corporation is at liberty to impose the condition that the permission for construction has been granted by the Bhavnagar Municipal Corporation subject to the final outcome or adjudication of Regular Civil Suit No. 471 of 1991 pending in Civil Court (Senior Division), Bhavnagar. 4. Bhavnagar Municipal Corporation is also at a liberty to impose further condition to the claimant that the permission has been granted under all risk of the claimant or applicant himself. 5.The plan or map presented by the defendant No.1 in the Office of the defendant No. 5 shall be decided by the Competent Authority for the Bhavnagar Municipal Corporation within the stipulated time period of 90 days under the condition stated hereinabove. 6.The defendant No. 5 Bhavnagar Municipal Corporation shall not refuse the permission of SCA/11952/2008 4/13 JUDGMENT construction on the ground that Plot Nos. 11 and 12 are owned by two different persons i.e. Shri Jitendra D. Gauswami and another owned by Shri Bhole Seva Santha, a Registered trust. 7.This direction to the Bhavnagar Municipal Corporation is applicable to all the persons of defendant No. 2 Society also and including to the existing premises. 3. Respondent Nos. 1 and 2 herein original plaintiffs had instituted Regular Civil Suit No. 303 of 2008 in the Court of learned Principal Senior Civil Judge for declaration and permanent injunction that the original defendant No.1 had no authority to construct the hospital or a commercial building in the plot Nos. 11 and 12 of the defendant No. 2 society. In the said suit, it is also further prayed for permanent injunction restraining the defendant No.1 from making use of plot Nos. 11 and 12 for the purpose other than the residential house and directing the defendants No. 2 to 5 restraining them from putting up such construction. In the said suit filed by the original plaintiffs, the defendant No.1 submitted the application Exh. 26 to issue appropriate direction upon the defendant No.5 directing the defendant No.5 i.e. petitioner herein to permit them to put up the construction by submitting the plans as is being done by other members of the defendant No.2 society and in the said application submitted by SCA/11952/2008 5/13 JUDGMENT the original defendant No.1, the learned Principal Senior Civil Judge, Bhavnagar has passed the impugned order which is reproduced hereinabove by which the learned Judge has not only granted the relief which is beyond application Exh. 26 but has granted blanket relief with respect to all the plot holders of the defendant No.2 society and directing the petitioner Bhavnagar Municipal Corporation to grant the permission for construction of any of the member of the Rupali Cooperative Housing Society Ltd., by further observing that in case of granting permission of construction to any person, the petitioner Bhavnagar Municipal Corporation is at liberty to impose condition that the permission for construction has been granted by the Bhanvagar Municipal Corporation subject to final outcome or adjudication of the Regular Civil Suit No. 471 of 1991 pending in the Court of Civil Judge (S.D.), Bhavnagar. Being aggrieved and dissatisfied with the aforesaid unreasonable and illegal order passed by the learned Principal Senior Civil Judge, Bhavnagar, petitioner original defendant No. 5 has preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Munshaw, learned advocate appearing on behalf of the petitioner-defendant No.5 has vehemently submitted that the impugned order SCA/11952/2008 6/13 JUDGMENT passed by the learned trial Court is absolutely illegal and / or without jurisdiction and even beyond the relief sought below Exh. 26. It is submitted that even otherwise in a suit filed by the respondent Nos. 1 and 2 herein original plaintiff such a relief in favour of the defendants could not have been granted by the learned trial Court. It is submitted that even otherwise, the learned Judge ought not to have granted such a blanket relief in favour of the plot holders of the defendant No.2 society and directing the petitioner Corporation to grant the development permission and / or permission to put up the construction that too in an application submitted by the original defendant No.1 only. It is submitted that even otherwise by granting such a mandatory relief, the learned trial Court has virtually dismissed the suit. It is submitted that as such there is a dispute with respect to the ownership of the disputed land and, therefore, also such a blanket mandatory relief could not have been granted by the learned trial Court. It is further submitted that there is a dispute with respect to title of the land and even Regular Civil Suit is preferred by the Bhavnagar Municipal Corporation in the Civil Court in the year 1991 and pending the same, there cannot be any direction to the petitioner Corporation to consider the lay out plan and to grant the development permission. It is further submitted that the respondent No.3 SCA/11952/2008 7/13 JUDGMENT herein-original defendant No. 1 wants to use the land for commercial purpose which is not permissible. Therefore, it is requested to allow the present Special Civil Application. 5. Shri Dhaval Barot, learned advocate has appeared on behalf of the respondent No.1 , Ms. Suneeta R. Shukla, learned advocate has appeared on behalf of the respondent No. 3 original defendant No.1, Shir R.K. Mishra, learned advocate has appeared on behalf of the respondent No.4 original defendant No.2 and Shri Amit Patel, learned AGP has appeared on behalf of the respondent No.5. 6. Petition is opposed by Ms. Suneeta R. Shukla, learned advocate appearing on behalf of the respondent No.3 original defendant No.1 and Shri R.K. Mishra, learned advocate appearing on behalf of the respondent No.4-original defendant No.2. Shri Mishra, learned advocate appearing on behalf of the respondent No. 4 Roopali Cooperative Housing Society Ltd., has submitted that as such the dispute with respect to the title / ownership of the land in question is already decided since long in Special Civil Suit No. 5 of 1980. Therefore, it is submitted that the Corporation is not justified in withholding the permission and / or not considering the application submitted by the plot holders of the society and therefore, the learned trial SCA/11952/2008 8/13 JUDGMENT Court has rightly allowed the application Exh. 26 and has rightly directed the Corporation to consider the application of any of the plot holders of the society. It is submitted that even the learned trial Court has also imposed the condition that while granting the permission a condition may be imposed that the said permission is subject to the ultimate outcome of the Civil Suit. 7. Ms. Suneeta Shukla, learned advocate appearing on behalf of the respondent No.3 original defendant No.1 has submitted that so far as original defendant No. 1 is concerned they wanted to put up the construction of hospital which is for a charitable purpose and, therefore, they may be permitted to put up the construction of hospital on the plots in question. It is submitted that in the facts and circumstances of the case, learned trial Court has not committed any error directing the petitioner Corporation not to refuse the permission of the construction with respect to the plot Nos. 11 and 12. 8. Shri Barot, learned advocate appearing on behalf of the respondent Nos. 1 and 2 original plaintiffs while adopting the submissions made by the learned advocate appearing on behalf of the petitioner has submitted that the impugned order passed by the learned trial Court cannot be sustained as while granting such a relief in SCA/11952/2008 9/13 JUDGMENT a suit filed by the original plaintiffs as such the learned trial Court has dismissed the said suit without any trial, therefore, it is requested to allow the present Special Civil Application. 9. Heard the learned advocates appearing on behalf of the respective parties. It is required to be noted that Regular Civil Suit No. 303 of 2008 has been filed by the respondents No. 1 and 2 herein-original plaintiffs for declaration and permanent injunction and for declaration that original defendant No.1 has no authority and / or right to put up the commercial construction like hospital and others on the plot Nos. 11 & 12 in the defendant No.2 society, without permission and/or approval of the original defendants No. 2 to 5 and for further declaration that defendant No.2 has no authority to grant such a permission to the defendant No.1. In the said suit only original defendant No.1 submitted application Exh. 26 for an appropriate direction directing the defendant No. 5 i.e. petitioner Bhavnagar Municipal Corporation to allow the defendant No. 1 to put up the construction on submitting the necessary plans and permitting it to put up the construction like other members of the society. Whether such an application in the suit filed by the respondents No. 1 and 2 herein original plaintiffs was maintainable or not itself is very triable issue. It can be said that granting SCA/11952/2008 10/13 JUDGMENT of such a relief would tantamount to even dismissing the suit without any trial. That apart on considering the impugned order passed by the the learned Principal Senior Civil Judge, Bhavnagar, it appears that even the learned Judge has gone beyond the relief sought in the application Exh. 26. In an application given by the original defendant No.1 permitting it to put up the construction, the learned Judge has granted the relief with respect to all the plot holders of the defendant No. 2 society, which is not the subject matter of the application Exh. 26 and even the suit. By the impugned order, the learned trial Court has directed the Bhanvagar Municipal Corporation-petitioner herein to decide the question of granting or refusing of permission for construction of any member of the defendant No.2 Roopali Cooperative Housing Society within 90 days from the said application and petitioner Corporation is further directed not to refuse the permission of the construction on the ground of pendency of the Regular Civil Suit No. 471 of 1991 pending in the said Court. The learned Judge has also passed an order that while granting such permission the Corporation may impose the condition that the permission for the construction has been granted by the Corporation subject to final outcome and / or adjudication of Regular Civil Suit No. 471 of 1991 pending in the Civil Court (S.D.), Bhavnagar and that the said permission has been SCA/11952/2008 11/13 JUDGMENT granted at the risk of the claimant or the applicant himself. Similar direction is also issued with respect to the defendant No.1 with respect to plot Nos. 11 and 12. Such a direction and the order is absolutely arbitrary and illegal and without jurisdiction. By granting aforesaid relief and issuing the aforesaid direction the learned Judge has granted relief which is not the subject matter of the suit and / or at least application Exh. 26. By granting such a relief the learned Judge has virtually dismissed the suit filed by the plaintiffs without trial. Even, the aforesaid directions are against the principle of natural justice as no opportunity has been given to either to the plaintiffs and/ or the petitioner- Corporation as the subject matter of application Exh. 26 was only with respect to the defendant No.1 and plots No. 11 and 12. Even, further direction issued by the learned trial Court that Corporation shall be at liberty to impose the condition that such a permission is subject to the ultimate outcome of the Civil Suit No. 471 of 1991 and shall be at the risks and costs of the respective applicants is also contrary to the law laid down by the Hon'ble Supreme Court in catena of decisions. The Hon'ble Supreme Court has deprecated granting of such a relief. In any case, the impugned order passed by the learned trial Court cannot be sustained as the same is absolutely illegal, arbitrary and SCA/11952/2008 12/13 JUDGMENT without jurisdiction and beyond application Exh. 26 and the suit and same cannot be sustained. This Court fails to appreciate how in an application given by the original defendant No.1 only and that too in the suit filed by the plaintiffs a relief can be granted in favour of the persons who are not even before the Court. Even such a relief cannot be granted in a suit filed by the plaintiffs virtually dismissing the suit. Under the circumstances, impugned order deserves to be quashed and set aside. 10.For the reasons stated above, petition succeeds. The impugned order dated 3.6.2008 passed below Exh. 26 in Regular Civil Suit No. 303 of 2008 passed by the learned Principal Senior Civil Judge, Bhavnagar is hereby quashed and set aside. Rule is made absolute accordingly with cost which is quantified at Rs. 5000/- to be paid by the original defendants No.1 and 2 (Rs. 2500/- each to the petitioner Corporation). Before parting with the present order it appears to the Court that the impugned order passed by the learned Principal Senior Civil Judge (S.D.), Bhavnagar requires to be considered by the High Court on administrative side. Under the circumstances, Registry is directed to place this order along with copy of the plaint, application Exh. 26 and impugned order for necessary action at their end. (M.R.SHAH,J.) SCA/11952/2008 13/13 JUDGMENT kaushik