IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1082 of 2011 In SPECIAL CIVIL APPLICATION No. 890 of 2011 To LETTERS PATENT APPEAL No. 1091 of 2011 In SPECIAL CIVIL APPLICATION No. 895 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE A.J. DESAI ===============================================
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 ? YES 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 ? YES 5 Whether it is to be circulated to the civil judge ? NO =============================================== STATE OF GUJARAT & OTHERS Versus NARESHBHAI P PARMAR & OTHERS =============================================== Appearance :
MR PK JANI, GOVT. PLEADER ASSISTED BY MR RASHESH RINDANI, AGP for Appellants.
MR YATIN OZA, SR.COUNSEL ASSISTED BY MR APURVA KAPADIA for Respondent No.11.
DELETED for Respondent(s) : 1 - 10.
=============================================== CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE A.J. DESAI Date : 20/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. The Act, namely, THE GUJARAT PROHIBITION OF TRANSFER OF IMMOVABLE PROPERTY AND PROVISIONS OF TENANTS FROM EVICTION FROM PREMISES IN DISTURBED AREAS ACT, 1991, (hereinafter referred to as “the Disturbed Areas Act”) came to be enacted for declaring certain transfers of immovable property in disturbed areas which is defined under the said Act of the State of Gujarat, to be void and to prohibit temporarily transfers of immovable property in such areas which is declared as disturbed area under the said Act, and to further amend the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for providing protection to the tenants of certain immovable property in such disturbed areas from eviction.
2. The short controversy in the present appeals are with regard to the order dated 11.01.2011 passed by SubRegistrar, Ahmedabad Division – 4, Paldi, calling upon the transferee (present respondent) to get permission under Sections 4 and 5 of the Disturbed Areas Act from Collector so that the sale deed with regard to different flats/apartments in T. P. Scheme No.3/6, having Final Plot No.852 of Village Kochrab of Ahmedabad City can be registered under the provisions of the Registration Act, 1908.
3. The present appeals are filed by the State of Gujarat under clause 15 of the Letters Patent challenging the judgment dated 13.5.2011 passed by the learned Single Judge in captioned petitions by which the learned Single Judge has held that the Notification dated 29.10.1997 issued under Section 3 of of the Disturbed Areas Act does not cover the disputed property and, therefore, the SubRegistrar was directed to process the sale deeds which were submitted by the transferee (present respondent) by his letter dated 18.12.2010.
4. The brief facts arising from the case are as under.
4.1 That the respondent company which is a registered company under the provisions of the Companies Act, 1956, purchased all the flats/apartments which is known as Mevawala Flats which is constructed on Final Plot No.852 of Village Kochrab situated in Ellisbridge area of Ahmedabad City. The respondent company initially purchased 19 apartments during the period between April, 2010 to June 2010. Thereafter remaining 10 flats, out of 29 flats of Mevawala Flats, have also been purchased by the respondent company. The sale deeds of those 10 apartments which were subsequently purchased were lodged with SubRegistrar of Ahmedabad for registration under the provisions of the Registration Act, 1908, which is compulsory, during the period from 29.7.2010 to 25.11.2010.
4.2 The respondent by his letter dated 18.12.2010 requested the SubRegistrar to register 10 sale deeds and return the same after completing procedure prescribed under the Registration Act, 1908. In the said letter, the respondent company referred a communication dated 27.7.2010 addressed to City Mamlatdar, Ahmedabad by Circle Officer of Village Kochrab Chhadwad area mentioning that the Final Plot No.852 upon which the disputed property i.e. Mevawala Flats is constructed, does not fall within the disturbed area as per the Notification issued by the State of Gujarat under Section 3 of the Disturbed Areas Act.
4.3 It appears from the record that the then Speaker of Gujarat State Assembly by his letter dated 12.7.2010 requested the Collector of Ahmedabad City to look into the transaction with regard to Mevawala Flats since the flats are being sold in breach of the Disturbed Areas Act. This letter was sent to the Collector at the request of one “Kochrab Ellisbridge Hitrakashak Samiti”, who was looking after the interest of flat owners which are situated in the disturbed areas.
4.4 The Collector by his letter dated 26.7.2010 requested the SubRegistrar to supply information as under:
(i) Whether the disputed 10 apartments are registered with his office or not.
(ii) Whether prior permission of Collector which is provided under Sections 4 and 5 of the Disturbed Areas Act has been taken or not.
(iii) Whether those sale deeds are registered with the office of Registrar without prior permission or not.
4. 5 In response to the said information demanded by the Collector/City Deputy Collector, the SubRegistrar, Ahmedabad by his reply dated 27.7.2010 informed that:
(i) those 10 apartments/flats were registered with office and he has supplied the details of the same.
(ii) It was mentioned that no prior permission was obtained by the party and has also mentioned in the reply that the disputed property i.e. Mevawala Flats is not in the list of properties which is situated within the disturbed area declared under the Notification issued by the State of Gujarat.
(iii) The Registrar has stated that the sale deeds are registered without prior permission. However, the transferee has stated in the sale deeds that the disputed property i.e. Mevawala Flats does not fall in the disturbed area and, therefore, there is no need to take prior permission.
4.6 The latest notification issued by the State of Gujarat under Section 3 of the Disturbed Areas Act, which is under consideration in the present case, was issued on 1.11.1997, provides a schedule which shows the areas of Ahmedabad City and Ahmedabad Rural which is declared as disturbed area.
4.7 By the said notification, the State Government has declared certain areas as 'disturbed area' covered under different police stations of Ahmedabad City and Ahmedabad Rural. The disputed property falls within Ellisbridge Police Station area which is at Serial No.21 in the Schedule. For ready reference, Ellisbridge Police Station as well as name of areas covered under it, is reproduced hereinbelow.
1. Museum Narayannagar, Bhattha.
2. Gita Bharti Ashram, Karnavati Hospital to Backside of V.S.Hospital, Kagdivad and entire area of Kochrab Village upto Tagore Hall.
3. Rajnagar Society situated at West Bank of Sabarmati River Behind N.I.D. to Vishwakunj Char Rasta Corner Flat, Narayannagar Road upto Shantivan Char Rasta and entire society area of P.T.College Road.
4. Mahalaxmi Panch Rasta to Paldi Bhattha, Jain Society, Pankaj Dutt Society, Faizulla (Momin Society) Society and entire area surrounding Divan Ballubhai School.
4.8 Since the disputed property is situated in Kochrab area, which is part of Ellisbridge Police Station, the City Deputy Collector requested the Police Inspector of Ellisbridge Police Station to submit information whether the disputed property falls within the disturbed area or not.
4.9 In response to the said letter dated 27.11.2010, the Senior Police Inspector of Ellisbridge Police Station opined that, since the Kochrab Village is included in the notification which is within the jurisdiction of Ellisbridge Police Station, the disputed property is situated within the disturbed area and accordingly informed the Deputy Collector on 20.12.2010.
4.10 Relying upon the report submitted by Ellisbridge Police Station, the City Deputy Collector by his letter dated 4.1.2011 informed the SubRegistrar to suspend the registration of sale deed and asked him to proceed further with the registration only after informing the transferee to get permission under the provisions of the Disturbed Areas Act. Accordingly, by letter dated 11.01.2011 the SubRegistrar informed the respondent company that the disputed property i.e. Final Plot No.852 known as Mevawala Flats is situated within the disturbed area and, therefore, further procedure of registering the sale deed shall be undertaken only if the company produces the prior permission of the Collector enumerated under the Disturbed Areas Act.
4.11 The respondent – original petitioner, being aggrieved and dissatisfied with the action of the respondent authorities, challenged the said decision of the SubRegistrar dated 11.1.2011 by filing captioned petitions before the learned Single Judge and prayed that the SubRegistrar shall be directed to release the sale deeds executed in favour of the company by declaring that the Final Plot No.852 upon which the disputed property was constructed does not fall within the disturbed area as per notification issued by the State of Gujarat.
4.12 Pursuant to the notice issued in the Special Civil Application, the appellants filed their affidavitsinreply along with the communications and notices issued by the City Deputy Collector, calling upon the transferee that why the sale deeds shall not be declared as void as provided under the Disturbed Areas Act. The respondent company – original petitioner filed its rejoinder, and by additional affidavit certain revenue records as well as permission granted by the Collector under the provisions of the Disturbed Areas Act qua other final plots were also produced. Pursuant to this rejoinder, additional affidavits were filed by Principal Secretary and the respondent company – original petitioner filed their surrejoinder.
4.13 It appears that Kochrab Ellisbridge Hitrakashak Samiti, who had requested the Speaker to verify the alleged illegal transaction defeating the provisions of the Disturbed Areas Act, filed Civil Applications being Civil Application Nos.4726 of 2011 to 4735 of 2011 before the learned Single Judge, and requested to be impleaded as party respondents in the said Special Civil Applications.
4.14 The learned Single Judge, after hearing the parties at length and after hearing Kochrab Ellisbridge Hitrakashak Samiti, came to the conclusion that the disputed property is not situated within the disturbed area as per the notification issued by the State of Gujarat and therefore allowed the petitions and directed the SubRegistrar to proceed further with the registration of the sale deeds which were submitted by the respondent – original petitioner. The learned Single Judge dismissed the civil applications filed by the `Samiti'.
4.15 Being aggrieved and dissatisfied with the said judgment dated 13.5.2011, the appellant – State of Gujarat has challenged the same on several grounds.
5. During the hearing at the admission stage, by three orders dated 2.8.2011, 13.2.2012 and 6.3.2012, the Bench asked the Government to explain and file appropriate affidavits alongwith the documents in support thereof to explain the area mentioned in the notification as far as Ellisbridge Police Station is concerned. Pursuant to the order dated 2.8.2011 passed by the Division Bench, one Shri R.V.Katara, Under Secretary of Revenue Department, State of Gujarat filed his affidavit dated 9.8.2011 along with Gazetted copy of the impugned notification dated 29.10.1997 issued under Section 3 of the Disturbed Areas Act, and also produced the Map prepared by the Government Officers including the Deputy Collector of Navrangpura as well as District Inspector, Land Reforms, Ahmedabad. Pursuant to the order dated 13.2.2012, Mr.Vijay Nehra, Collector of Ahmedabad City filed his affidavit on 24.2.2012 and produced a Map under the signature of Senior Police Inspector of Ellisbridge Police Station showing the areas covered under the Ellisbridge Police Station. In reply to the affidavits filed by the authorities in the present appeals, the respondent – original petitioner filed counter and denied the averments made in the affidavits and produced the revenue records with regard to certain final plots which falls within Kochrab Village and tried to establish that the intention of the authorities while issuing impugned notification, was to cover only 'Gamthal' of Kochrab Village, since the other properties which are mentioned in the said notification, though, situated out of Kochrab Gamthal, is treated a property under the Disturbed Areas Act. By additional affidavit, Shri R.V.Katara, Under Secretary of Revenue Department tried to explain the impugned official gazette and tried to support the decision taken by the authorities treating the disputed property as a property falling within the disturbed area. By additional affidavit, the respondent has tried to submit that the notification issued by the Government is a faulty notification that since the details of the properties are not mentioned in the said notification.
6. We have heard learned Government Pleader Mr.Prakash K.Jani assisted by learned Assistant Government Pleader Mr.Rashesh Rindani for the appellants and learned Senior Counsel Mr.Yatin Oza assisted by learned advocate Mr.Apurva Kapadia for the respondent. We have gone through the memo of petition along with the annexures produced by the petitioner including certain communications between the different departments of the Government, the Maps which shown the disturbed area in which the disputed property is situated, the affidavitinreply filed before the learned Single Judge, additional affidavits filed in the present appeals by both the sides. We have also gone through the record which was kept for perusal by the authorities including the Sub Registrar, Police Inspector of Ellisbridge Police Station etc.
7. The first contention raised by Mr.P.K.Jani is with regard to the powers exercised by learned Single Judge under Article 226 of the Constitution of India to the effect that the learned Judge ought not to have gone into factual aspect of the matter. To elaborate this argument, he has submitted that, when the different authorities of the State of Gujarat has finally come to the conclusion that the disputed property is situated within the disturbed area defined under the Disturbed Areas Act, the learned Single Judge ought not to have come to the contrary conclusion.
Another contention raised by Mr.Jani is that the learned Single Judge ought to have dismissed the petition on the ground that the original petitioners have alternative remedy of filing appeal under Section 6 of the Disturbed Areas Act, which provides that the decision of the Collector rejecting the application under Sections 4 and 5 or under Section 5A can be challenged before the State Government.
The third submission raised by Mr.Jani is that the petition was at a preliminary stage and the petitioners ought not to have challenged the notices issued by the City Deputy Collector to show cause why the sale deeds which have been entered into between the parties, shall be declared as void or not. The original petitioners ought to have filed the reply to the said notices and convince the authorities that the disputed property is not situated within the disturbed area.
8. On the other hand, Mr.Yatin Oza learned Senior Counsel for the respondent has supported the decision arrived at by the learned Single Judge and has submitted that the impugned decision dated 11.01.2011 passed by SubRegistrar per se illegal since he had relied only upon two communications issued by City Deputy Collector as well as opinion of Senior Police Inspector of Ellisbridge Police Station. He has submitted that, in absence of details before the SubRegistrar, the SubRegistrar ought not to have blindly relied upon the opinion given by the authorities. He further submitted that the impugned notification which provides the declaration about the immovable properties situated in the disturbed area as per the schedule which describe the police stations of the Ahmedabad City and Ahmedabad Rural as well as the name of areas is clearly indicates that which area under particular police station is covered as disturbed area and, therefore, those properties which are not situated in the said area cannot be treated as a property situated within the disturbed area.
It was further argued by Mr.Oza that, as far as disputed property is concerned, the same is situated within the jurisdiction of Ellisbridge Police Station area and, therefore, the description provided under the said area is required to be considered, and when the learned Single Judge has come to the conclusion that the disputed area is not situated within the disturbed area, the learned Single Judge was right in allowing the petition and, therefore, he prayed that the appeals shall be dismissed.
9. As far as the first contention raised by Mr.P.K.Jani is concerned, after perusing the communications between the officers, the Maps produced by revenue authorities as well as by the police authorities, we are of the opinion that the disputed property cannot be treated as a part of entire Kochrab Village. Clause 21 of the disputed notification which is reproduced hereinabove in para 4.7, suggest that the properties of Ellisbridge Police Station which is situated at (1) Museum Narayannagar, Bhattha, (2) Gita Bharti Ashram, Karnavati Hospital to Backside of V.S.Hospital, Kagdivad and entire area of Kochrab Village upto Tagore Hall, (3) Rajnagar Society situated at West Bank of Sabarmati River Behind N.I.D. to Vishwakunj Char Rasta Corner Flat, Narayannagar Road upto Shantivan Char Rasta and entire society area of P.T.College Road, (4) Mahalaxmi Panch Rasta to Paldi Bhattha, Jain Society, Pankaj Dutt Society, Faizulla (Momin Society) Society and entire area surrounding Divan Ballubhai School are to be treated as situated in disturbed area. Now looking to the Map produced by the revenue authorities as well as the Map produced by the police authorities and 7/12 extract of revenue record, it suggest that Gita Bharti Ashram is constructed on land of Kochrab Village, Karnavati Hospital, backside of V.S.Hospital is also part of Kochrab Village and Tagore Hall is also situated in Kochrab Village. From the map prepared by revenue authority, it appears that the area of Kochrab Village is differently coloured. The disputed property i.e. Final Plot No.852 is out of the coloured area. Similarly, Gita Bharti Ashram and Karnavati Hospital is also situated out of the coloured area of Kochrab Village. Town Hall is, though, adjacent to the Village site of Kochrab, the same is not shown as part of Kochrab Village (coloured area). In view of this factual aspect, the learned Single Judge was right in holding that the intention of legislature was to include particular area only. Describing the area of Vejalpur Police Station, in the notification, the legislature has specifically mentioned that, entire Vejalpur Village including of Gamthal and Simtal area shall be treated as disturbed area under the said notification. In the present case, the authority has not included Simtal area of Kochrab Village. It is an admitted position that the disputed land is not part of Gamthal area of Village Kochrab. If the authority had intention to cover the entire area of Kochrab Village, then there was no need to specify the area of Gita Bharti Ashram, Karnavati Hospital, Town Hall etc., of Village Kochrab separately, though they may be situated in Simtal of Kochrab Village. The authority had no other data except the opinion of a Police Officer, who had also no data to include the disputed property in the disturbed area. Shri B.K.Purohit, Senior Police Inspector of Ellisbridge Police Station who had opined by his communication dated 28.12.2010 that the disputed property is situated within the disturbed area, was present when the matter was heard by the bench. In response to query put by the Court, he submitted that he had relied upon earlier permission granted by the Collector under the provisions of the Disturbed Areas Act about Survey No.850 which is situated in Kochrab Village. Now looking to the Map, said Survey No.850 is situated out of the coloured area of Village site of Kochrab. Except permission with regard to said Survey No.850, he had no other data to come to the conclusion that the disputed Survey No.852 is also part of disturbed area. As stated hereinabove, Survey No.852 as well as Survey No.850 are situated within village site of Kochrab and, therefore, the notification issued under Section 3 of the Disturbed Areas Act qua area of Kochrab Village would not cover the said properties. If a persons seeks permission for transfer of his property under the provisions of Disturbed Areas Act, under the impression that the property might be covered under such area, would not be binding to other who can successfully established that his property is not covered under the notification.
10. It is well settled principle of law that all cases involving disputed questions of facts should be relegated to the concerned authority. In catena of decisions, the Apex Court has held that the petition involving disputed question of facts should not be entertained is not a rule of law but of convenience. It has been held in the case of State of Orissa Vs. Binapani Dei (Dr.) reported in AIR 1967 SC 1269 has under.
“The object of Art.226 is to provide a quick and inexpensive remedy to aggrieved parties. If the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Art.226 is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Art.226. The high court is not deprived of its jurisdiction to entertain a petition under Art.226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Art.226, the high court has jurisdiction to try issues both of fact and of law. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the high court is of the view that the dispute should not appropriately be tried in writ petition, the high court may decline to try a petition. If, however, on consideration of the nature of the controversy, the high court decides that it should go into a disputed question of the fact and the discretion exercised by the high court appears to be sound, and in conformity with judicial principles, the Supreme Court would not interfere in appeal with the order made by the high court in this respect.”
11. In the case of ABL INTERNATIONAL LTD. AND ANOTHER VS. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.
AND OTHERS reported in (2004) 3 SCC 553, the Apex Court has held that in appropriate case, the writ court has jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar in regard thereto. In para 16 and 19 the Apex Court has observed as under.
16. A perusal of this judgment though shows that a writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of this Court in the case of Smt. Gunwant Kaur & Ors. vs. Municipal Committee, Bhatinda and Ors. [1969 (3) SCC 769] where dealing with such a situation of disputed questions of fact in a writ petition this Court held :
"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."
19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Smt.Gunwant Kaur (supra), this Court even went to the extent of holding that in a writ petition, if facts required, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact.”
12. In the case of CHOLAN ROADWAYS LTD. VS. G.THIRUGNANASAMBANDAM reported in (2005) 3 SCC 241, in para 35 the Apex Court has observed as under.
“Errors of fact can also be a subjectmatter of judicial review. [See E. v. Secy. of State for the Home Department (2004) 2 WLR 1351 (CA)]. Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. titled “Judicial Review, Appeal and Factual Error” published in 2004 Public Law, p. 788.”
13. In case of CITY AND INDUSTRIAL DEVELOPMENT CORPORATION VS. DOSU AARDESHIR BHIWANDIWALA AND OTHERS reported in (2009) 1 SCC 168, the Apex Court has held that the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is dutybound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. In paras 29 and 30 the Apex Court has observed as under.
“29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an exparte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.
30. The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether :
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of Limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions always are required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and selfdefeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law.”
In the present matter, the learned Single Judge as well as the Division Bench have perused the relevant record and asked the State authorities to provide sufficient material/data about the properties which can be treated as a part of Kochrab Village which is declared as disturbed area under the notification. After perusing the same, we have arrived at a conclusion that the officers through their affidavits have failed in establishing that the disputed property is situated in the disturbed area.
14. In the present matters, it is not a case of complex question of facts or serious disputed questions of facts which requires consideration of evidence which is not on record which would led the high court to direct the parties to approach the appropriate authorities. The authorities have produced all relevant material with regard to the question of fact whether the property is situated within the disturbed area as per the notification or not. That was the only question of fact which is to be decided in the case. The learned Single Judge was right in exercising the powers under Article 226 of the Constitution of India while dealing with the factual aspect, and when an important right of a citizen qua immovable property is involved in the matter. In short, the Court can, under Article 226 of the Constitution of India, give direction, in order to prevent injustice, as to how the authority should have exercised it's discretion or may itself pass an order which such authority should have passed.
15. The other contention raised by learned Government Pleader with regard to alternative remedy available to the petitioner is concerned, we are of the opinion that the high court exercising powers under Article 226 of the Constitution of India has come to conclusion that whether the discretionary jurisdiction should be refused or not solely on the ground of existence of an alternative remedy. It is true that ordinary the Court has imposed and restrained its own wisdom on its exercise of jurisdiction under Article 226 of the Constitution where the party invoking the jurisdiction has an effective, adequate alternative remedy, but, in our opinion, in the present case, even the aggrieved party is directed to approach the higher authority by way of filing appeal as an alternative remedy, no fruitful purpose would be served since the authorities have to rely upon the material about the disturbed area which was considered by the learned Single Judge as well as by us while deciding the present appeals.
16. In the case of U.P. STATE SPINNING CO. LTD. VS. R.S.
PANDEY AND ANOTHER reported in (2005) 8 SCC 264, the Apex Court has held that, before entertaining a petition under Article 226 of the Constitution of India, in those cases, when an alternative remedy is available, the High Court should ensure that the petitioner has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. In para 11 in the said judgment the Apex Court has observed as under.
“Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.”
17. The third contention raised by learned Government Pleader is that the petitions were filed at a premature stage since the authorities have issued only notices to the respondent under the provisions of the Disturbed Areas Act. It is pertinent to note that the challenge before the learned Single Judge was with regard to the decision dated 11.01.2011 taken by the SubRegistrar refusing to register the sale deeds on the ground that the Senior Police Inspector of Ellisbridge Police Station and City Deputy Collector of Ahmedabad have opined that the disputed properties is situated within the disturbed area. The notices are produced by the State of Gujarat along with the affidavits before the learned Single Judge.
18. As stated hereinabove, when the learned Single Judge as well as this Bench has come to the conclusion after perusing the relevant maps and revenue records that the disputed property is not situated within the disturbed area as per the notification, the Court would certainly not like to direct the respondent original petitioner to reply the notices issued by the authorities. When the entire case is before the Court and when the Court has arrived at the conclusion after exhausting hearing that the authorities below have not sufficient data or material to arrive at a conclusion that the disputed property is situated within a disturbed area, the citizens shall not be send to the authorities for reply and to proceed with the matter before the authorities below.
At this juncture, we would like to observe that, while considering the impugned notification dated 29.10.1997, the Revenue Department of the State of Gujarat who had issued the said notification, ought to have clarified details of area as far as Ellisbridge Police Station is concerned. While dealing with other police stations like Shahibaug, Meghaninagar, Shaher Kotda, Kalupur etc., the authority has clearly mentioned the name of areas which is treated to be disturbed area. For example, while considering Shahibaug Police Station, Nagori Pole, Haji Satar, Asarwa Under Bridge, entire area under Camp Sardar Bazar Police Chowki etc., is mentioned. Similarly with regard to Meghaninagar Police Station is concerned, number of chawls are mentioned as disturbed area. Similar are the cases with regard to Shaher Kotda Police Station and Kalupur Police Station and other number of police stations. While describing the area with regard to Ellisbridge Police Station, it appears that the authorities is not that much clear about the disturbed area, comparing with other police stations. In subclause 4 of Clause 21 (Ellisbridge Police Station), the authority has described entire area surrounding Diwan Ballubhai School which vague. In clause 3 the area is mentioned as entire society of P. T. College road. In our opinion, it is a vague description which lead nowhere to the authorities that which final plot or which society is covered under this area.
19. In view of what is stated hereinabove, the appeals filed by the State of Gujarat fail as we do not find any infirmity with the impugned order passed by the learned Single Judge which would call for interference by this Court. The appeals are, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/