IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18441 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 law
4 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 ?
================================================= SWATI PROCON PRIVATE LIMITED - THROUGH MANAGING DIRECTOR -
Petitioner(s) Versus MAHESHKUMAR KALIDAS SOLANKI & 1 - Respondent(s) ================================================= Appearance :
MS ANUSHREE KAPADIA for Petitioner(s) : 1, MS MAMTA R VYAS for Respondent(s) : 1, MR ADIL R MIRZA for Respondent(s) : 2, ================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 09/07/2012 CAV JUDGMENT
1. Rule. Ms. Manta R. Vyas appears and waives service of Rule for and on behalf of respondent No.1. Mr. Adil R. Mirza waives service of Rule for and on behalf of respondent No.2.
2. This petition challenges the order of the learned Second Additional District Judge passed in Miscellaneous Civil Appeal No.27 of 2011 on 8.11.2011 confirming the order of injunction dated 19.3.2011 in Regular Civil Suit No.25 of 2011.
3. The petitioner herein purchased the property bearing Revenue Survey No.293 admeasuring 5038 sq.meters at Chandkheda, Ahmedabad by a registered sale deed on 11.12.2009. Ahmedabad Urban Development Authority(AUDA) approved the plan of the petitioner for construction of residential apartment/building and granted development permission on 6.3.2010. Accordingly, the construction commenced for 8 blocks consisting of 160 flats. The land in question over which the construction of the flats is commenced forms part of Town Planning Scheme Plot No.69 ( Chandkheda, Zundal Tragad) towards north of the property of Revenue Survey No.282/3, 283/3 and 283/4 and residential scheme of tenements. Owner of Tenement No.16/b, filed Regular Civil Suit No.25 of 2011 on 12.1.2011 seeking a declaration to the effect that the petitioner herein( original defendant) does not have a right to construct building within 10 feet from the compound wall without proper plans and permission in violation of the easementary rights of the plaintiff by creating encroachment on the compound wall of the society.
4. An application for interim relief was preferred restraining the petitioner from carrying out construction within 10 feet of the said wall in alleged violation of easementary right of the society. This was allowed by way of an order dated 19.3.2011 and aggrieved by such an order, Civil Miscellaneous Appeal No.27 of 2011 under Order 43 Rule 1 of the Code of Civil Procedure is preferred. The appellate Court confirmed the order of the trial Court and also directed to expedite the suit.
5. Challenging the said order of the appellate forum as also in turn that of the trial Court, this petition under Article 227 of the Constitution of India is preferred urging to interfere with the orders of both the Courts.
6. This Court has heard at length submissions of both the sides. Main thrust of submission on the part of learned advocate Ms. Jani for the petitioner is that the construction is being carried out in accordance with the permission granted by AUDA and when almost the construction is over, such order hampers further construction, seriously jeopardizing the rights of the petitioner herein. She also further urged that Draft Town Planning Scheme (No.69) is already forwarded to the State Government and as far as the question of 10 feet margin is concerned, there is sufficient compliance by leaving margin of 4 feet as 7 to 8 feet land of respondent No.1 goes in deduction and, therefore, when AUDA has granted permission it had in mind the preliminary Town Planning Scheme, which is forwarded to the State Government and, therefore, there is no violation.
7. Learned advocate Ms. Mamta appearing for the respondent has stated that the Town Planning Scheme has not been finalized as yet and, therefore, RCC pillars, which are raised 64 feet away from the wall of respondent's premises and gallery portion is extended upto 4.5 feet as is apparent from the Panchnama, could not be allowed to continue. It is further urged that the appellate Court has taken sufficient care of expediting the suit and yet, so far the petitioner herein has not bothered cross-examination of the respondent whose examination-in-chief has already been filed from 14.12.2011. The Court, when had directed disposal of the entire proceedings by making a time bound programme, no interference, at this stage is required.
8. Affidavit-in-reply is also filed by respondent No.2 AUDA,which says that original plot No.6901 is final plot and as per the provision of the Act, the petitioner herein has given 40% deduction in the land to AUDA. From the said deduction a TP Road admeasuring about 15 meters is already laid and other land, which is taken as part of the said deduction, is kept reserved as a garden for public utility. It is also the say of AUDA that land of respondent No.1, which is bearing OP No.560 now known as FP No.56/1 and 56/2 and 35 % deduction is proposed in the final plot alloted to respondent No.1 and respondent No.2 has proposed reservation for housing of economically weaker sections. Thus, respondent No.1 is required to surrender 7 to 8 feet of land from his land and because of that, the compound wall of respondent no.1 would go farther from its original boundary and, therefore required margin before the construction of the petitioner and the boundary of final plot of respondent No.1 would be maintained. It is also the say of AUDA that development permission to the said plan was granted by AUDA on 6.3.2010 and the site visited of the land was also carried out by the officers and such construction was carried out as per the sanctioned plan.
Learned advocate for respondent No.2 appearing for AUDA has made submissions on the line of the affidavit-in- reply filed before this Court.
9. The short question that arises for consideration of this Court is as to whether the order of both the Courts suffer from any illegality on account of any lack of jurisdiction or otherwise for being perverse and causing grave injustice to either side which calls for interference in a petition under Article 227 of the Constitution of India. This Court will need to remember the objective of supervisory jurisdiction vested in this Court and it would be apt to refer to the judgments of the Supreme Court in the case of Kokkanda B.Poondacha and others vs. K.D.Ganapathi and Anr. reported in (2011)12 SCC 600. as well as in the case of Surya Dev Rai vs. Ram Chandra Rai and others reported in (2003) 6 SCC 675, where these principles are laid down in the decisions.
10. Admittedly, the petitioner herein has been granted permission to construct, therefore, it was carrying out the same till the trial Court injuncted the petitioner from further carrying out the construction. As can be also further noted there is substantial construction, which has been carried out of various blocks and, therefore, the grant of interim injunction and confirmation of the same by the appellate Court would naturally create a cause of concern for the litigating party, at the same time, both the Courts have taken note of the fact that the permission of AUDA was granted keeping in mind Draft Town Planning Scheme which is yet not finalized by the Government.
11. It becomes very apparent from the version given in the affidavit furnished by respondent no.2 AUDA that it is necessary to leave 10 feet of margin by the petitioner herein before it constructs on the said land. Undoubtedly, the permission has been given by respondent No.2 for carrying out construction and it further emerges that the petitioner herein has already deducted 40% of his land and given the same to respondent. Correspondingly, the road admeasuring 15 meters is already laid by the authority and a portion of the land, which was deducted is also reserved for garden for public utility. In other words, the petitioner has fulfilled his obligations in respect of the suit land and has duly complied with the proposals made in the Draft TP scheme.
12. AUDA has already submitted the Draft TP Scheme to the Government for sanction and keeping in mind the due compliance by the present petitioner. AUDA possibly has permitted the petitioner to construct assuming that 35% of the deduction which is proposed in the final plot alloted to respondent No.1 from his land and which is reserved for housing of economically weaker sections, would come into play. Both the Courts have noted the fact that TP Scheme has not yet become final and, therefore, at this stage, if construction has been carried out and if the same is being objected to for not having left the margin of 10 feet, as is otherwise required, this issue as well as the issue of easementary rights will require trial.
13. Draft TP Scheme has been forwarded on 25.3.2011, which is as yet not finalized. Respondent No.1 has already taken objection of deduction proposed in its margin upto 35% and in absence of finalization, respondent no.2 also agrees that there would not arise the question of taking possession of the proposed land for want of statutory sanction for so doing it.
14. In wake of the permission granted by AUDA in the aforementioned circumstances, the petitioner herein carried out the construction and is aggrieved by the fact that it has stopped at a very crucial stage and huge number of flats are remaining uninhabited on account of such litigation, which is more than a personal loss, a sheer national waste.
15. In the opinion of this Court even if such impasse has been created on account of permission given by the AUDA and bona fide belief of the petitioner herein, who followed such permission after having fulfilled its own obligation, nevertheless, it cannot be said that either trial Court or appellate Court has committed any error in protecting the interest of respondent. At this stage, one must appreciate the fact that appellate Court, having been conscious of the possible misuse of such injunction, has struck a balance by directing the parties to proceed with the final disposal of the suit and also further directed that if such proceedings are not completed within the time bound schedule, the injunction shall automatically get vacated and as is submitted to this Court, respondent No.1 herein has already filed examination-in-chief and, therefore, also no interference, at this stage, is found necessary. As the time limit contemplated by the appellate Court is already over, such time limit is being further extended by 4 months and both the parties shall ensure the disposal of the said suit. Any of the observations made while deciding this petition shall not come in the way of either side. Trial Court shall decide on its own merits without any influence of outcome of this petition.
The petition is disposed of accordingly. Rule is made absolute to the above extent accordingly.
(Ms.Sonia Gokani, J.) sudhir