LPA/1220/2006j 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1220 of 2006 In SPECIAL CIVIL APPLICATION No. 1931 of 2005 With LETTERS PATENT APPEAL No. 1221 of 2006 In SPECIAL CIVIL APPLICATION No. 12749 of 2003 With CIVIL APPLICATION No. 11270 of 2006 In LETTERS PATENT APPEAL No. 1220 of 2006 With CIVIL APPLICATION No. 11274 of 2006 In LETTERS PATENT APPEAL No. 1221 of 2006 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 civil judge ? ========================================================= SNEHANJALI COOPERATIVE HOUSING SOCIETY LTD.,THRO' CHAIRMAN - Appellant(s) Versus THE STATE OF GUJARAT & 10 - Respondent(s) ========================================================= Appearance : MR ND NANAVATI Sr Advocate with RJ GOSWAMI for Appellant MS ARCHANA RAVAL AGP for Respondent(s) : 1-3, 5, MR AJ PATEL for Respondent(s) : 2, MR PR NANAVATI for Respondent(s) : 4, MR MC BHATT Sr Advocate with VIKRAM J THAKOR for Respondents : 6-11 MR TUSHAR MEHTA - Intervener ========================================================= LPA/1220/2006j 2/17 JUDGMENT CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE SHARAD D.DAVE 13th August, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) These two Appeals, preferred under Clause 15 of the Letters Patent, arise from the common judgment and order dated 20th October, 2005 passed by the learned Single Judge in so far as the above Special Civil Application No. 12749 of 2003 preferred by one- Nidhi Cooperative Housing Society Limited [hereinafter referred to as, “the Nidhi Society”] has been allowed, and the Special Civil Application No. 1931 of 2005 preferred by the appellant-Snehanjali Cooperative Housing Society Limited [hereinafter referred to as, “the Snehanjali Society”] is dismissed. The matter at dispute is the construction made by the Snehanjali Society over land admeasuring 4645 sq.mtrs of final plot No. 65 of Town Planning Scheme No.1-Thaltej. In or around the year 1971, the lands of village-Thaltej were made subject matter of Town Planning Scheme under the Bombay Town Planning Act. LPA/1220/2006j 3/17 JUDGMENT The preliminary scheme was published in the year 1974. The lands Survey nos. 110/1 and 110/2 admeasuring 40,450 sq.m. was given original plot No.10. Under the final Town Planning Scheme, the owners of these lands Survey No. 110/1 & 110/2 were allotted final plot No. 65 admeasuring 20434 sq.m. The said final plot no. 65 has been purchased by the Nidhi Society from its erstwhile owners Rameshbhai and Manekben. Out of the said 20434 sq.m of land, construction has been made by the Snehanjali Society over some 4645 sq.m of land which is the subject matter of dispute. The Nidhi Society filed above Special Civil Application No. 12749 of 2003 under Article 226 of the Constitution against the Snehanjali Society and the Ahmedabad Urban Development Authority [hereinafter referred to as, “the Authority”]. It was the case of the Nidhi Society that the Authority was obliged to hand over vacant possession of the final plot No. 65 to its lawful owners. It was, therefore, prayed that the Authority be directed to hand over vacant possession of the aforesaid 4645 sq.m of land utilized by the Snehanjali Society for construction LPA/1220/2006j 4/17 JUDGMENT of residential houses. According to the Snehanjali Society, they had purchased the said land under the registered sale deeds from the constituted attorney of the owners of the land Survey No. 113/2 of village-Thaltej. The Snehanjali Society was, therefore, lawful owner of land Survey No. 113/2 [now final plot No. 68 under the Town Planning Scheme-I Thaltej]. However, the Snehanjali Society erroneously made construction on the land of final plot No. 65 instead on the land of final plot No. 68. Mr. Mehta has appeared for the individual members of the Snehanjali Society. He has submitted that in past several efforts have been made by the Snehanjali Society to settle the matter with the Nidhi Society. However, the demand made by the Nidhi Society is beyond the reach of the members of the Snehanjali Society who were the employees of the Oil & Natural Gas Corporation and most of them have now retired. The claim is contested by the respondents- Shanaji Bhuraji Thakore and others – the owners of land Survey No. 113/2. According to the said respondents, under the TP Scheme No.1-Thaltej, in lieu of the said land Survey No. 113/2 admeasuring LPA/1220/2006j 5/17 JUDGMENT 6070 sq.m, the said respondents were allotted land final plot No. 68 admeasuring 4299 sq.m. The said respondents had never given power to sell the land. The power was given to one Chandubhai Raichanddas Patel to obtain permission, etc. to develop the final plot No. 68. The said Chandubhai was not given power to sell the land. It is submitted that the sale of the land Survey No. 113/2 [final plot No. 68] made by the said Chandubhai was without the authority of law and did not pass title in the land to the Snehanjali Society. In view of the above facts, the learned Single Judge has allowed Special Civil Application No. 12749 of 2003. The respondent-Authority is directed to implement the Town Planning Scheme Thaltej-1 [final] by handing over the vacant and peaceful possession of the entire final plot No. 65 to the Nidhi Society. The learned Single Judge has dismissed the above Special Civil Application No.1931 of 2005 filed by the Snehanjali Society to challenge the Town Planning Scheme No.1-Thaltej [Final] with respect to final plots Nos. 65 & 68. Therefore, the present Appeals. Mr. Nanavati has appeared for the appellant- LPA/1220/2006j 6/17 JUDGMENT Snehanjali Society. He concedes that the construction put up by the Snehanjali Society on part of the land of final plot No. 65 was unlawful and was without the authority of law. He has admitted that the Snehanjali Society had purchased land of Survey No. 113/2 [final plot No. 68]. It, therefore, could not have made construction over the land of final plot No. 65. He has, however, submitted that Civil Suit No. 139 of 1990 in respect of the title over final plot no. 65 is pending in the Civil Court at Ahmedabad. Pending the said Civil Suit, by Order made on Misc. Civil Appeal No. 4 of 2005, the interest of the Snehanjali Society has been protected. The direction issued by the learned Single Judge is contrary to the protection granted by the Civil Court. Such a direction ought to be set-aside. Mr. Mehta has appeared for the members of the Snehanjali Society and has supported the submissions made by Mr. Nanavati. The Appeals are contested by the Nidhi Society appearing through learned advocate Mr. A.J Patel. Mr. Patel has submitted that it is not in dispute that the Nidhi Society has purchased the land of final LPA/1220/2006j 7/17 JUDGMENT plot No. 65 from its erstwhile owners- one Rameshbhai and Manekben by registered sale deeds. The Nidhi Society is the lawful owner of the aforesaid final plot No. 65. The respondent-Authority is duty bound to hand over vacant possession of the final plot No. 65 to the Nidhi Society. He has submitted that it is not in dispute that the Snehanjali Society has not purchased any part of the land of final plot No. 65. The construction made by the Snehanjali Society over the land of final plot No. 65 is unauthorized to the knowledge of the said Society. Since the commencement of the construction, the Authority had time and again warned the Snehanjali Society against the unlawful construction commenced by it and had also issued injunction against such construction. Nevertheless, the Snehanjali Society continued to make construction and alloted the residential units to its members. Thus, Snehanjali Society was, right from inception, aware that the construction raised by it was unlawful. The Nidhi Society is entitled to vacant possession of plot No. 65 allotted under the Town Planning Scheme. He has submitted that the learned Single Judge has rightly allowed the writ petition LPA/1220/2006j 8/17 JUDGMENT No. 12749 of 2003 and has rightly directed the Authority to hand over vacant possession of final plot No. 65 to the Nidhi Society. The Appeals are also contested by Mr. Bhatt appearing for the aforesaid respondents-Shanaji Buraji Thakore and others – owners of the land bearing Survey No. 113/2 of village-Thaltej. It is not in dispute that under the Town Planning Scheme No.1-Thaltej, the aforesaid land Survey no. 113/2 admeasuring 6070 sq.m was reduced to final plot No. 68 admeasuring 4299 sq.m. Mr. Bhatt has submitted that the claim of the Snehanjali Society over the land of final plot No. 68 is not tenable. He has submitted that the Snehanjali Society has claimed proprietary right over the final plot No. 68 on the strength of the sale deeds executed in respect of the land Survey No. 113/2 by the above referred Chandubhai R. Patel. He has drawn our attention to the power-of-attorney given to the aforesaid Chandubhai. He has submitted that under the said power, the said Chandubhai was authorized to develop the land plot No. 68. The power to sell the land was never given to the said Chandubhai. The alleged sale LPA/1220/2006j 9/17 JUDGMENT made by the said Chandubhai of the land Survey No. 113/2 [final plot No. 68] was, therefore, without the authority of law, and void ab initio. Such transfer made by the said Chandubhai did not pass right, title or interest over the said land to the Snehanjali Society. He has submitted that in respect of the title in the land Survey No. 113/2, the Snehanjali Society had instituted Civil Suit No. 816 of 1997 which was allowed to be dismissed for non-prosecution on 4th September, 1997. Another suit, being Civil Suit No. 545 of 2002 in the same subject matter was instituted by the Snehanjali Society which came to be rejected on 17th February, 2004 under Order 7 Rule 11 CPC. Still one more suit in the same subject matter has been instituted being Civil Suit No. 336 of 2002 which is still pending. Mr. Bhatt has also pointed out various revenue proceedings taken out by/against the Snehanjali Society which too have been decided against the Snehanjali Society. Mr. Bhatt has submitted that all the aforesaid efforts of the Snehanjali Society to claim title over the land plot No. 68 before various fora have failed. The Snehanjali Society has not been able to establish its LPA/1220/2006j 10/17 JUDGMENT title over the land Survey No. 113/2 [final plot no. 68]. Any claim made by the appellant Snehanjali Society over the land final plot No. 68 deserves to be dismissed. The learned Single Judge has rightly dismissed Special Civil Application No. 1931 of 2005 filed by the appellant Snehanjali Society. Under the Town Planning Scheme No. 1-Thaltej, the land Survey No. 113/1 belonging to one Meenaben Mansukhlal and others, admeasuring 12141 sq.m had been given original plot No. 33/2, now final plot no. 67 admeasuring 8862 sq.m. The land survey no. 113/2 belonging to Dhayaji Motiji and others – the respondents no. 6 to 11 admeasuring 6070 sq.m had been given original plot no. 33/1, now final plot no. 68 admeasuring 4299 sq.m. It, however, appears that initially the Authority made some mistake and land survey no. 113/1 belonging to aforesaid Meenaben Mansukhlal and others was described as land Survey no. 113/2 and the land Survey no. 113/2 belonging to the respondents no. 6 to 11 was referred to as the land Survey No. 113/1. This mistake has later been rectified and the modification in the Town Planning Scheme has been made by Notification dated 23rd April, LPA/1220/2006j 11/17 JUDGMENT 2001. It is this variance made under Notification dated 23rd April, 2001 which was subject matter of challenge in the above Special Civil Application No. 1931 of 2005. The Snehanjali Society has claimed that part of the above referred land Survey No. 113/2 retainable under the Urban Land [Ceiling & Regulation] Act was purchased by it by nine registered sale deeds during the period from September, 1983 to December, 1984 from the constituted attorney of the owner-Dhayaji Motiji and others – one Chandubhai Raichand. It was that part of the land Survey No. 113/2 which on reconstitution has become part of the final plot no. 65. The Snehanjali Society, therefore, has title over that part of the land final plot no. 65. This plea, however, is neither proved nor pressed before us. As borne out from the materials on record, the aforesaid Chandubhai Raichand had not been given power to sell land survey no. 113/2. Under the power of attorney executed in the year 1979, the said Chandubhai Raichandbhai was authorized to obtain necessary permissions, etc., for development of the land Survey no. 113/2. Thus, it is apparent that the LPA/1220/2006j 12/17 JUDGMENT sale deeds executed by the said Chandubhai Raichandbhai was without the authority of law. No title passed over to the Snehanjali Society under the said sale deeds. The land Survey No. 110/1 and 110/2 admeasuring 40450 sq.m was given original plot no. 10 and the final plot no. 65 admeasuring 20434 sq.m of which the disputed land is a part. The said land plot no. 65 is purchased by the Nidhi Society from its original owners. The Nidhi Society has called upon the Authority to hand over vacant possession of the final plot no. 65. In answer to the notice dated 16th February, 1990 issued by the Authority to hand over vacant possession of the land in its occupation, the Snehanjali Society instituted Regular Civil Suit No. 139 f 1990 in the Court of learned Civil Judge [SD], Ahmedabad (Rural) against the Authority for permanent injunction against demolition of construction put up by the Snehanjali Society and to declare that the notice dated 16th February, 1990 given by the Authority was false and illegal. We are informed that pending the said suit, the Authority is restrained from demolishing the construction put-up by the LPA/1220/2006j 13/17 JUDGMENT Snehanjali Society. The said suit is still pending and the stay is operating. Certain revenue proceedings were taken out by the respondents no. 6 to 11 against the Snehanjali Society. Certain revenue proceedings were also taken out by the Snehanjali Society. In none of such proceedings, the Snehanjali Society has succeeded. On the contrary, it is consistently held that no title passed over to the Snehanjali Society under the alleged sale deeds. In a desperate move to protect its possession, the Snehanjali Society instituted Regular Civil Suit No. 816 of 1997 in the Court of learned Civil Judge {SD}, Ahmedabad (Rural) against the present respondents for a declaration of title over the land Survey No. 113/2 in its possession and for permanent injunction against its owners restraining them from transferring the same by sale, gift, mortgage, etc. and not to obstruct the possession of the Society. The said suit was not prosecuted further and was allowed to be dismissed for default on 4th September, 1997. Another Civil Suit No. 545 of 2002 was instituted by Snehanjali Society for similar prayers. The said suit came to be dismissed on 17th LPA/1220/2006j 14/17 JUDGMENT February, 2004 under Order 7 Rule 11 CPC. Unruffled by rejection of two suits, the Snehanjali Society has instituted Civil Suit No. 336 of 2004 against the same defendants for a similar relief in respect of land Survey No. 113/2. It is also prayed that the Authority be directed to allot final plot no. 65 to the plaintiff Snehanjali Society and the final plot no. 68 to the defendant-Nidhi Society. We are informed that the said suit is still pending. It is evident that the Snehanjali Society was aware of its unlawful occupation of the land in question. Nevertheless, it went on to make construction over the disputed land and to allot such construction to its members. To protect its illegal possession, the Snehanjali Society resorted to various litigations before the Revenue Authorities and before the Civil Court which is a clear abuse of process of law. Moreover, in its writ petition, the Snehanjali Society has not referred to any of the litigations and the orders made thereon, except the Civil Suit No. 139 of 1990. The Snehanjali Society has thus carefully kept back the relevant materials with a view to misleading the Court. Once the LPA/1220/2006j 15/17 JUDGMENT Snehanjali Society has failed to prove that a legal title to the disputed land had passed over to it, it cannot be permitted to continue its illegal possession. The Snehanjali Society could not have any say how the land should be reconstituted under the Town Planning Scheme or who should be allotted which plot of the land nor was the Snehanjali Society required to be given notice or hearing for this purpose. The claim made by the Snehanjali Society is totally misconceived and has rightly been rejected by the learned Single Judge. The learned Single Judge has rightly allowed the petition filed by the Nidhi Society. The Authority has rightly been directed to hand over vacant possession of the orignal plot no. 65 to the Nidhi Society. The above referred facts are gathered from the records and are not disputed. Indisputably, the appellant Snehanjali Society has made unauthorized and illegal construction over the land of final plot No. 65. The claim of the petitioner – Nidhi Society for vacant possession of final plot no. 65 is wholly justified. The learned Single Judge has rightly directed the Authority to hand over vacant possession LPA/1220/2006j 16/17 JUDGMENT of the final plot No. 65 to the petitioner-Nidhi Society. As to the claim of the appellant-Snehanjali Society over the plot No. 68, as discussed hereinabove,the appellant has failed to establish the title over the final plot No. 68 claimed by it. Nevertheless, as recorded hereinabove, Civil Suit No. 139 of 1990 in respect of the construction made by the Snehanjali Society over the final plot no. 65 is pending. As recorded hereinabove, the impugned Notification dated 23rd April, 2001 was issued to rectify the mistake committed in respect of lands Survey No. 113/1 and 113/2 of village-Thaltej. The said Notification does not give cause of action to the Snehanjali Society. For the aforesaid reasons, we find no substance in either of the above Appeals. No case for interference is made out. The Appeals are dismissed in limine. Civil Applications stand disposed of. At the request of learned advocate Mr. Goswami, it is directed that the offending construction put up by the appellant–Snehanjali Cooperative Housing LPA/1220/2006j 17/17 JUDGMENT Society over the land final plot No. 65 may not be demolished for a period of eight weeks from today. {Miss R.M Doshit, J.} {Sharad D. Dave, J.} Prakash*