SCA/25033/2006 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25033 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= VASUBHAI NARANBHAI PATEL & 16 - Petitioners Versus AHMEDABAD URBAN DEVELOPMENT AUTHORITY & 7 - Respondents ========================================================= Appearance : MR AJ PATEL WITH MR GIRISH K PATEL for Petitioners : 1 - 17. NOTICE SERVED BY DS for Respondents : 1 - 3. MR RR MARSHALL for Respondent : 1, MR TS NANAVATI for Respondent : 1, MR SHALIN N MEHTA for Respondent(s) : 2 - 3. None for Respondent(s) : 4 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/07/2008 ORAL JUDGMENT 1. Rule. Shri R.R.Marshall, learned advocate waives SCA/25033/2006 2/13 JUDGMENT service of notice of Rule on behalf of respondent No.1-AUDA and Shri Shalin Mehta, learned advocate waives service of notice of Rule on behalf of respective respondents. With the consent of learned advocates appearing for the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioners-original plaintiffs/appellants have prayed for an appropriate writ, order or direction, quashing and setting aside the judgment and order dated 7.11.2006 passed by the learned Additional District Judge and 2nd Fast Track Court, Ahmedabad (Rural) passed in Civil Misc.Appeal No.138 of 1998 as well as order dated 17.11.1998 passed by the learned 7th Joint Civil Judge (S.D.), Ahmedabad (Rural) below Exh.5 in Regular Civil Suit No.108 of 1997 as well as notice dated 2.8.1996 issued by the respondent No.1-Ahmedabad Urban Development Authority (hereinafter referred to as “AUDA”). The petitioners have also prayed for directing the respondent No.1 to clarify under which authority it has cancelled the development permission SCA/25033/2006 3/13 JUDGMENT dated 1.8.1992. 3. Petitioners herein-original plaintiffs have instituted Civil Suit No.108 of 1997 in the Court learned 7th Joint Civil Judge (S.D.), Ahmedabad (Rural) for a declaration for declaring the notice dated 2.8.1996 issued by the respondent No.1 herein- original defendant No.1 AUDA issued under Section 36 of the Gujarat Town Planning Act (hereinafter referred to as “the Act”) as illegal and also prayed for permanent injunction restraining the respondent No.1-AUDA from implementing the said notice dated 2.8.1996 and further restraining the AUDA obstructing the plaintiffs from using the suit property/Row houses. It is the case on behalf of the plaintiffs that they are in occupation and possession of the Row houses ad-measuring 50 sq.yrds allotted by the defendant No.2 society and they have become the absolute owner of the said Row houses. It is the case on behalf of the plaintiffs that they have been allotted the said tenements on payment of full consideration. However, as there was a dispute between the society and the original land owners, the SCA/25033/2006 4/13 JUDGMENT sale deed cannot be executed. It was further case on behalf of the plaintiffs that all of a sudden the respondent No.1 herein-AUDA issued notice dated 2.8.1996 under Section 36 of the Act for demolition of the aforesaid Row houses and therefore the aforesaid suit came to be filed for the aforesaid reliefs. In the said suit, the petitioners-original plaintiffs submitted application Exh.5 for interim injunction which came to be heard by learned Additional District Judge and 2nd Fast Track Court, Ahmedabad (Rural), who by his order dated 7.11.2006 dismissed the application Exh.5 by holding that the construction of Row houses in question is absolutely illegal and unauthorised and in fact development permission was already cancelled in the year 1992, and in spite of cancellation of development permission, Row Houses came to be constructed and that even the society from whom the plaintiffs have alleged to have purchased the Row Houses had no title and even the plaintiffs have also no title as there are no sale deed executed in their favour. The learned trial court also held that the notice dated 2.8.1996 is a consequential notice under Section 36 SCA/25033/2006 5/13 JUDGMENT of the Act and therefore neither the balance of convenience nor there is a prima facie case in favour of the plaintiffs and thereby dismissed the application below Exh.5. 3.1 Being aggrieved and dissatisfied with the order passed below Ex.5, the petitioners-original plaintiffs preferred Civil Misc. Appeal No.138 of 1998 before the learned District Judge, Ahmedabad (Rural) which came to be heard by learned Additional District Judge and 2nd Fast Track Court, Ahmedabad (Rural), who by judgment and order dated 7.11.2006 dismissed the said appeal confirming the order passed by the learned trial court passed below Exh.5. 3.2 Being aggrieved and dissatisfied with both the aforesaid orders, the petitioners-original plaintiffs have preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Shri A.J.Patel, learned Senior Counsel with Shri Girish K.Patel, learned advocate appearing on SCA/25033/2006 6/13 JUDGMENT behalf of the petitioners has vehemently submitted that the petitioners have purchased the Row Houses from the respondent No.2 society, and on payment of consideration the Row Houses came to be allotted to them. It is also further submitted by him that before issuing the notice dated 2.8.1996 issued under Section 36 of the Act, no opportunity has been given to the petitioners and therefore when the impugned notice is in breach of principle of natural justice, both the courts below ought to have restrained the respondent No.1-AUDA from implementing the said notice. It is further submitted that if the respondent No.1 is not restrained from implementing the notice by directing to maintain status-quo, the Row Houses in which the petitioners are residing would be demolished and they would be homeless. Therefore it is requested to allow the present Special Civil Application. 4.1 Shri Patel, learned Senior Counsel appearing on behalf of the petitioners has further submitted that subsequently after the cancellation of development permission in the year 1992 revised plan SCA/25033/2006 7/13 JUDGMENT came to be submitted, however, the same came to be dismissed on the ground that there is no signature of the original land owners. It is submitted that the petitioners are residing with their family members in the respective Row Houses since 1993 onwards and in fact they have not made any construction on the disputed land and therefore it is requested to allow the present Special Civil Application. 5. Petition is opposed by Shri R.R.Marshall, learned advocate appearing on behalf of respondent No.1-AUDA. It is submitted that the development permission was cancelled in the year 1992 more particularly on 17.10.1992 and in spite of cancellation of development permission the respondent No.2 society and the developer/builder continued to put up the construction of Row Houses unauthorisedly. It is submitted that as such the order dated 17.10.1992 by which the development permission came to be cancelled is not under challenge and what is challenged by the plaintiffs is the consequential notice dated 2.8.1996 issued under Section 36 of the Act. It is submitted that the petitioners have SCA/25033/2006 8/13 JUDGMENT purchased the property from the respondent No.2 who has no valid title and who has constructed and put up illegal construction after the cancellation of development permission. He has relied upon the decision of the Hon'ble Supreme Court in the case of SEEMA ARSHAD ZAHEER AND OTHERS vs. MUNICIPAL CORPORATION OF GREATER MUMBAI AND OTHERS reported in (2006) 5 SCC 282 and it is submitted that even considering the decision of the Hon'ble Supreme Court, there shall not be any injunction restraining the authority from demolishing the illegal construction. It is therefore submitted that both the courts below have rightly dismissed the application Exh.5 which is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Hence, it is requested to dismiss the present Special Civil Application. 6. Heard the learned counsel appearing on behalf of the respective parties. 7. At the outset it is required to be noted that SCA/25033/2006 9/13 JUDGMENT the respondent No.4-original defendant No.4 is the original land owner. It appears that there was an agreement to sale (Satakhat) only in favour of respondent No.2 society. It also appears that only on the basis of the aforesaid agreement to sale/Satakhat/Banakhat, the original defendant No.2 society transferred the land in favour of defendant No.3 developer/builder. Initially the AUDA granted the development permission on 1.8.1992 which was immediately cancelled/revoked on 17.10.1992 and the original land owner, society and the builder/developer original defendant Nos.2 to 4 were duly informed with respect to revocation of the development permission. It appears that still the defendants No.2 and 3 more particularly defendant No.3 builder/developer had put up unauthorised construction and constructed the Row Houses and the defendant No.2 sold the same to the plaintiffs. It appears that the plaintiffs have purchased the Row Houses after the cancellation of the development permission i.e. after 1993 and thereafter AUDA had initiated the proceedings under the Town Planning Act for removal of unauthorised construction by issuing SCA/25033/2006 10/13 JUDGMENT notice under Section 36 of the Town Planning Act read with Regulation 14 which came to be challenged by the petitioners. 8. It is the case on behalf of the plaintiffs that before revocation of development permission vide order dated 17.10.1992 and issuance of notice dated 2.8.1996, no opportunity of hearing has been given to the plaintiffs. However, it is required to be noted that when the development permission was revoked, even the plaintiffs have not purchased the Row Houses and in fact there were no Row Houses at all. Therefore there is no question of giving any opportunity to the plaintiffs when the development permission was revoked. It is also required to be noted at this stage that even the plaintiffs have not challenged the order dated 17.10.1992 revoking the development permission in the suit and what is challenged is the consequential notice dated 2.8.1996 issued under Sec.36 of the Act for removing the unauthorised illegal construction which is constructed after the development permission is revoked. Thus, the Row Houses in which the SCA/25033/2006 11/13 JUDGMENT petitioners-plaintiffs are residing are absolutely unauthorised and the builder/developer have put up the construction illegally and unauthorisedly after the development permission is cancelled/revoked. As held by the Hon'ble Supreme Court in the case Seema Arshad Zaheer and others (supra) no injunction can be granted by any court restraining the authority from demolishing unauthorised and illegal construction. 9. It is also required to be noted at this stage that even the plaintiffs have no valid title at all. No sale deed is executed in their favour. Even the defendant No.2 and/or defendant No.3 from whom the plaintiffs have alleged to have purchased the Row Houses have also no valid title. There was only agreement to sale/Banakhat in the favour of original defendant No.2 and there is no sale deed in favour of defendant No.2 society and/or builder/developer, Therefore the entire transaction is illegal. 10. Considering the above more particularly when the developer/builder have put up the construction of Row Houses illegally and unauthorisedly even after SCA/25033/2006 12/13 JUDGMENT cancellation of development permission and when revocation/cancellation of the development permission has not been challenged and when the authority initiated the proceedings under the Town Planning Act to remove/demolish such unauthorised construction/Row Houses, it cannot be said that the authority has acted illegally and/or arbitrary and/or dehors the provisions of the Town Planning Act. Both the courts below have rightly refused to grant injunction in favour of the plaintiffs restraining the AUDA from implementing the notice dated 2.8.1996 issued under Section 36 of the Act which was for demolishing and/or removing unauthorised construction. There are concurrent findings given by both the courts below which are not required to be interfered with by this Court under Article 227 of the Constitution of India. Even considering the decision of the Hon'ble Supreme Court Seema Arshad Zaheer and others (supra) referred to hereinabove, both the courts below have rightly refused to grant injunction restraining the AUDA from demolishing unauthorised construction. There is no jurisdictional error much less error of law committed by the both the Courts below. SCA/25033/2006 13/13 JUDGMENT 11. For the reasons stated above, the petition deserves dismissal and is accordingly dismissed. Rule is discharged with no order as to costs. Interim relief, if any, granted earlier shall stand vacated. ( M.R. SHAH, J. ) syed/