IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 169 of 2011 With CIVIL APPLICATION No. 5149 of 2011 In APPEAL FROM ORDER No. 169 of 2011 With CIVIL APPLICATION No. 2195 of 2012 In CIVIL APPLICATION - FOR BRINGING HEIRS No. 1231 of 2011 For Approval and Signature:
HONOURABLE Ms. JUSTICE SONIA GOKANI ========================================================= 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 ?
Whether this case involves a substantial question of 4 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 ?
========================================================= NAVDURGA TEXTILE MILLS AND M/S JAY AMBE, PROPRIETORY FIRMS - Appellant(s) Versus THE AHMEDABAD MUNICIPAL CORPORATION & 6 - Respondent(s) ========================================================= Appearance :
MR CG SHARMA for Appellant(s) : 1, M/S RJ RAWAL ASSOC. for Respondent(s) : 1, MS SHIVYA A DESAI for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, 4, MR AJ YAGNIK for Respondent(s) : 3, 5, MS VIDHIJBHATT for Respondent(s) : 6, GOVERNMENT PLEADER for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE Ms. JUSTICE SONIA GOKANI 7th December 2012 CAV JUDGMENT This Appeal is preferred under Order-43, Rule-1(r) of the Code of Civil Procedure, 1908 challenging the order passed by the learned City Civil Court No.15 in Civil Suit No. 2532 of 2010 denying interim relief to the present appellant vide its order dated 14.03.2011.
This Appeal arises from the following facts :
It is the say of the appellant that the land bearing Revenue Survey No.183/1 admeasuring 12444 sq. meter situated at Village Narol, Taluka City, District Ahmedabad originally was owned and possessed by Devalbhai Chaturbhai Pael and Chinubhai Chaturbhai Patel. Out of the same, 10000 sq. meters land was agreed to be sold to Shri Bhagirath Processors, a partnership firm. A registered sale deed was effected in its favour on 19.09.1991. The land was governed under the Urban Land Ceiling Act, and therefore, the necessary permission was required to be obtained from the competent Authority, and thereafter, the same was handed over to the partnership firm on the date of execution of the registered sale deed.
It is the say of the appellant that as registration of the sale deed was taking a longtime due to hitches of payment of the total sale consideration by the firm, the vendors handed over the vacant and peaceful possession to the purchasers and an agreement to that effect was also executed on 10.02.1992.
By virtue of the said agreement, though no formal sale deed was executed between the parties, construction was put up and Bhagirath Processors, thereafter, agreed to sell the land admeasuring 2575 sq. yards out of the total land area of 10000 sq. meters to Anup Textile Mills, a proprietary firm by virtue of an agreement to sell dated 04.02.1993. Anup Textile Mills put up construction in the nature of superstructure as per its business requirements.
Anup Textile Mills, thereafter, agreed to sell the said land together with the road leading from the main public road and two agreements to sell viz. for the land of building as well as for the machineries installed therein, were executed in favour of the present appellant. These agreements dated 18.09.2001, as per the say of the appellant refer to the road on the eastern side of the road.
It is the say of the appellant that the agreement was executed by the proprietor of Anup Textile Mills, through its proprietor Shri Manav Anupkumar Gulati on 18.09.2001 itself authorizing the proprietor of the appellant firm i.e. Girishbhai Pravinchandra Rathod, to deal with the said land, building and machineries in the manner, he chooses.
The appellant had commenced its business of textile processing and was using the road on the eastern side of the land.
In the interregnum, the respondent-Municipal Corporation declared Town Planning Scheme No.62 for the lands of Village Narol and other surrounding villages. Defendant Nos. 2 to 5 herein are the owners of the land bearing Survey No.183/2 admeasuring 12545 sq. mtrs. After the T.P. Scheme was finalized, they have been allotted land admeasuring 6714 sq. mtrs in lieu of the original area and the same has been numbered as Final Plot No.19/2.
It is the say of the appellant that the respondents never objected to the use of the road by the appellant. It is averred that the respondents converted the land into old tenure from new tenure land for industrial use by an order of the District Collector dated 19.10.2010, and thereby, they intended to mar the right of the appellant in respect of the suit road and to obstruct peaceful use of the said road, which gave rise to the filing of the Civil suit No.2532 of 2010 in the Court of City Civil & Sessions, Bhadra for declaration and injunction.
In the notice of motion that was taken out, interim injunction was requested for in application below Exh.7 restraining the respondents from creating any obstruction and obstacle in the right of away claimed by the appellant as also from removing the electric and other cables, drainage pipe lines, transformers etc.
The learned Trial Court also appointed the Court Commissioner, who prepared report on 02.11.2010 with a map and on 04.11.2010 , an interim relief was granted in terms of para-8(A) of the notice of motion against respondent Nos.2 to 6 till 16.11.2010, which was extended, time and again, and after hearing both the sides, request for injunction as set out in notice of motion, was rejected vide its order dated 14.03.2011.
Being aggrieved by such order, this appeal is preferred on various grounds raised in this appeal memo.
At the initial stage, ad interim relief extended by the trial Court was continued till 9th May 2011 by virtue of the order of this Court and time and again, the same has been extended.
Heard learned advocates for the respective parties.
It is the say of the learned advocate Mr. Sharma that the order of the trial Court requires interference for the same being illegal, capricious and having been given in complete disregard to the settled position of facts and law. He although has admitted that there is neither any notice issued to the Government under Section 80 of the Code of Civil Procedure nor has any notice been given to the Ahmedabad Municipal Corporation under Section 487 of the Bombay Provincial Municipal Corporation Act. There is no dispute with regard to non mentioning of 25 ft. road in the agreement to sale executed in favour of the present appellant. However, in subsequently executed agreements, there is a reference of 25 ft. road. He urges the Court that the appellant would be virtually land locked; in the event of not allowing him to pass through the road, which he has been using and enjoying for all these years. The fact is also not disputed that no registered sale deed in respect of the suit land is executed.
He sought to rely upon decision of the Apex Court rendered in case of Joy Auto Works and Ors. V. Sumer Builder Private Limited & Anr. reported in (2009) 4 Supreme Court Cases 691. Which talks about easementary rights of necessity. In the matter before the apex Court also there was a dispute with regard to right of passage through the neighbour's plot. It was held that if the appellant's plot has no other access, it is necessary to preserve motorable access even at the interim stage, since such right is not totally extinguished upon development of the plot. The appellant was using the neighbour's plot to access the public road. A suit was filed for free and full use of motorable access since the same was used for more than 35 years. As the appellant's plot had motorable access to the public road only through the plot marked for 40 ft. development plan road by the Municipal Corporation. The trial Court alloted the access on foot but it refused interim order for motorable access.
In appeal, the High Court did not interfere by holding that the appellant could not claim his right through property belonging to others for failure of BMC to construct a DP road.
The Apex Court held that if there is no other access, it is necessary to preserve motorable access even at the interim stage, since such a right is not totally extinguished upon development of the concerned plot. It further allowed this access till 40 ft. DP road is constructed or till the disposal of the suit by simultaneously directing the BMC to implement its assurance for construction of DP road. The Court also reiterated that while allowing or denying interim order, the Court must consider if any party would suffer irreparable loss and/or injury and therefore, the Court is required to ensure balance of convenience and equity between the parties even at the interim stage.
Yet another decision that requires to be examined is rendered in case of Suraj Lamp and Industries Private Limited Vs. State of Hariyana and Anr., Spl. Leave Petition [C] No. 13917/2009 :: Decided 11th October 2011 wherein the apex Court did not hold transfer by Sale Agreement/General Power of Attorney/ will transfer as complete Sale under Section 54 & 55 of the Transfer of Property Act.
It is contended by the learned advocate appearing for the respondent No.1-Corporation that no notice has been issued under the Bombay Provincial Municipal Corporation Act and notice also has not been served under Section 80 CPC to the Town Planning Officer – respondent No.7 and therefore, there is a question of maintainability of the suit as well. It is also further contended that the suit land is a tenanted land and also comes under the definition of prohibitory land of the Bombay Tenancy & Agricultural Lands Act, 1948 and therefore, also, the suit itself is not maintainable. The agreement of sale depended upon by the petitioner herein is not a legal nor a valid document. As the passage is being claimed by the appellant through the private land, no such relief if permissible. It is further urged that road of 20 ft. width on the western direction connecting the main road is an incorrect proposition.
Learned advocate Shri A. J. Yagnik appearing for the respondent No.2 to 5 has urged that the appellant has no right, title and interest in the property as his factory is existing on the prohibitory land and the entire construction itself is illegal and unauthorized. He urged that Section 43 CPC would prohibit transfer of prohibitory land and in clear violation of the provision of law when such transfer has come into being without, seeking permission of any authority, if the appellant has land-locked itself, he has to blame his own conduct. He further urged that the Town Planning Officer has issued notice to this respondent as for original plot No.19/2 (Revenue Survey No.183/2), a new plot is being alloted to this respondent. They have possession of this property by virtue of the order of the collector and appellant would have no right to have access through the property of the present respondent as the entire factory is illegal and a reserved plot of the municipal corporation is between survey No.183/1 and 183/2 and appellant having raised construction in complete violation of law, the trial Court has rightly denied discretionary relief.
Learned senior advocate Shri Shalin Mehta appearing for the respondent No.6 has strongly objected to allowing the appeal. He pointed out that the land on which the petitioner has constructed its factory building is the land of new tenure and the original owners viz. Devalbhai C. Patel has not mentioned anything in the Banakhat executed on 19th September 1991 in favour of Bhagirath Processors; (a partnership firm) about the existence of passage road of 20 ft. as a thorough-fare. He further urged that in subsequent agreement to sale by Bhagirath Processors, if this 20 ft. road appears that will have no significance in the eyes of law.
Moreover, the appellant also claims easement by necessity and had encroached upon the property of the present respondent, when in fact, there is no thorough-fare. This has happened only on account of the fact that the land which was not severable has been sold in parts and Section 43 when rightly prohibits transfer as well or mortgage without the prior permission of the collector and yet in case of land in question it has been transferred by way of agreement to sell and by virtue of existing power of attorney and thus, when this transfers have been effected, to circumvent the law, the petitioner herein has no business to ask for any easementary right over the property of the respondent. He also urged citing Section 48A, Sections 68 & 69 of the T.P Act that the draft scheme is finalized under the Town Planning Act and it can be mutatis mutandis implemented. As well, there is an outright violation of the Bombay Tenancy Act.
Learned APP also resisted this Appeal from Order as well.
Upon thus hearing both the sides and on close perusal of the record, it transpires that the petitioner himself is responsible for the situation which he created of land locking itself, as rightly pointed out in the order of the trial Court that the property which was not to be transferred under the law without the prior permission of the Collector, changed hands several times. It also further appears that the entire parcel of land has not been transferred to the subsequent owners but it has been sold in fragments. As out of the total area of the suit land, only a portion of it was purchased by the present appellant till the respondents obtained permission and started its construction, the road was being used as a thoroughfare by the present appellant. However, in fact, this is not a road where any right is created in favour of the appellant for enjoying thoroughfare. The pleadings of the appellant is of easement by necessity. Reliance is also placed on the decision of the Apex Court which indicates use of road, sought to be closed by the respondents before the Apex Court, for a period of thirty five years because of T.P Scheme. The road suggested by the development plan was not yet prepared, and therefore, the Court directed continuation of the passage which was used in the past and also further directed the Corporation to construct the road over the land expeditiously. Here is not the case either of allowing use of the said road for a protracted period or of the Corporation not having constructed the alternative road. The appellant appears to have become victim of his own conduct and circumstances. Equity would always help those who help themselves. It is apparent from the record that the original owner of the suit land sold the same to Bhagirath Processors and Bhagirath Processors agreed to sell the land admeasuring 2575 sq. yards out of the total land admeasuring 10,000/= sq. yards to Anup Textile Mills and Anup Textile Mills; a proprietary firm thereafter agreed to sell the said land together with the road leading to the main public road in favour of the present appellant. Thus, there were two agreements to sell – one for building and another for machineries. In the first place when agreement to sale was made in favour of Anup Textile Mills, out of the total area, only 2575 sq. yards had been severed from the entire parcel of land. This transfer itself was invalid and so was the subsequent transfer by way of agreement to sale.
It is necessary to refer to the judgment of the Apex Court rendered in case of Suraj Lamp & Industries Private Limited [Supra] wherein, the Apex Court refers to the ill- effects of General Power of Attorney Sales, or Sale Agreement/General Power of Attorney/Will transfers by holding that these descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. The Apex Court in paragraphs 16, 17 & 18 held thus, “16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not ‘transfers’ or ‘sales’ and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said ‘SA/GPA/WILL transactions’ may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to SA/GPA/WILL transactions’ has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.”
This is clearly indicative that the transfers by “GPA sales” or “SA/GPA /Will transfers” are not legal modes of transfers and that are bound to create hardship to large number of persons.
In the instant case also, an attempt is made to challenge the order of the City Civil Court, which has denied request of interim injunction in favour of the present petitioner essentially when it found that the transfer made by the original owner in favour of Bhagirath Processors did not mention road of 20' approaching the main road over and above that the Court also has rightly pointed out that Section 43 of the Bombay Tenancy & Agricultural Lands Act, 1947 prohibits transfer without permission of the Collector. In absence of such permission, any subsequent transfer can have no bearing on the rightful right of true owners who have been allotted the property; once the TP Scheme was finalized. As can be noted, the respondents no. 2 to 5 were the owners of the land bearing Revenue Survey No. 183/2 admeasuring 12545 sq.m. They have been alloted in lieu thereof land admeasuring 6714 sq.m which has been given Final Plot No. 19/2. Use of the road from the land of the respondents was at no point of time legal, when the transfer of property of the appellant is contrary to the provisions of law.
Moreover, the trial Court also raised questions of very maintainability of the suit for having been preferred, in absence of any notice under Section 80 (2) of the Code of Civil Procedure as also for want of notice issued by the Municipal Corporation. The Courts of equity would help only those who approach the Courts with clean hands and on following the due process of law. The Court while considering the basic three ingredients before issuance of injunction regarded the vital factum of illegal transfer contrary to mandatory legal provision. In absence of any prima facie case and in light of discussion made hereinabove, particularly in absence of any material error going to the root of the case, no interference is desirable in the present Appeal from Order. Accordingly, this Appeal from Order fails.
{Ms. Sonia Gokani, J.} Prakash*