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2021 Supreme(Guj) 1106
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
MAHENDRABHAI JIVANBHAI SARVAIYA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION NO. 4042 of 2021
Decided On : 06-12-2021
For The Appellant : MR ASIM PANDYA, SR. COUNSEL WITH MR.MANAN BHATT
For The Respondent:MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP, MR MR BHATT, SENIOR COUNSEL WITH MR MUNJAAL BHATT, ADVOCATE FOR M R BHATT & CO., MR HS MUNSHAW, MR RM PARMAR, MUNJAAL M BHATT
Headnote:
Constitution of India, 1950 - Article 226 - Gujarat Provincial Municipal Corporation Act, 1949 - Section 210, 213 - Transfer of Properties Act, 1882 - Section 44 – Petitioners is that said property has not been partitioned among co-owners and co-owners i.e. respondents are trying to sell property in question without resorting to partition by metes and bounds - Having come to know that, a public notice was published by petitioners against any transfer. Similarly another public notice was published - Case of petitioners is that respondents fraudulently, illegally and unlawfully transferred 80 sq. mtrs of property in question to respondent –This was done by a sale deed - It is case of petitioners that petitioners have filed a civil suit being Special Civil Suit seeking quashing of registered sale deed executed collusively so as to defeat legal rights and interest of petitioners - After filing of civil suit, respondent who initially made an application to transfer property in question and enter their name in property card withdrew such application with a view to make such application once civil suit was finally decided - Case of petitioners is that , City Survey Superintendent rejected application of respondent stating that name of respondent cannot be entered into revenue records or property card unless there is partition or sub-plotting - Whether action of Corporation by passing impugned resolution - Whether land in question could be sold without metes and bounds by co-owners without partition is a question which is at large before civil court – Held, court would not delve into such question of document being forged when in accordance with law Corporation has found ownership of land of respondent and having acquired same in June 2020 proceeded forth in exercise of widening street - It is not open for petitioners to contend that they have not been given notices under Sections 210 or 213 of Act because as rightly opined by advocate based on which Corporation acted merely because application of respondent for having his name entered into property card is rejected it is well settled that such entries are only for fiscal purposes and Corporation would not be in any manner particularly when application to join Corporation at hands of petitioners is rejected, to stall such an exercise merely because a civil dispute is pending between parties for adjudication - Petition dismissed.
JUDGMENT :
1. On 18.11.2021, this matter with consent of the learned counsels for the respective parties was taken up for final hearing and the judgement was reserved.
2. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP for respondent no. 1, Mr. M.R. Bhatt, learned Senior Counsel appearing with Mr. Munjal Bhatt, learned advocate for respondents no.8, 8.1, 8.2, Mr. H.S Munshaw, learned counsel for respondent no. 2 and Mr. R.M. Parmar, learned advocate for respondents no. 3, 4, 5, 6.1, 6.2, 6.3, 6.4 and 7 waive service of notice of Rule.
3. Heard Mr. Asim Pandya, learned advocate appearing with Mr. Manan Bhatt, learned advocate for the petitioners, Mr. Meet Thakkar, learned AGP for respondent no. 1, Mr. M.R. Bhatt, learned Senior Counsel appearing with Mr. Munjal Bhatt, learned advocate for respondents no. 8, 8.1, 8.2, Mr. H.S Munshaw, learned counsel for respondent no. 2 and Mr. R.M. Parmar, learned advocate for respondents no. 3, 4, 5, 6.1, 6.2, 6.3, 6.4 and 7.
4. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned Resolution No. 166 dated 27.09.2019 passed by the respondent Rajkot Municipal Corporation.
5. Facts in brief are as under:
5.1 It is the case of the petitioners that the petitioners along with respondents no. 3 to 7 are co-owners of the property in question. The property is the residential premises namely ‘Ramkrupa’ situated at City Survey Ward No. 11/1, City Survey Street No. 211, City Survey No. 1181 to 1184 admeasuring around 200 mtrs. The case of the petitioners is that the said property has not been partitioned among co-owners and the co-owners i.e. respondents no. 3 to 7 are trying to sell the property in question without resorting to partition by metes and bounds. Having come to know that, on 12.09.2018, a public notice was published by the petitioners against any transfer. Similarly another public notice was published on 22.05.2019. 5.2 The case of the petitioners is that the respondents no. 3 to 7 fraudulently, illegally and unlawfully transferred 80 sq. mtrs of the property in question to respondent no. 8 – Savaliya Developers Private Limited. This was done by a sale deed dated 10.06.2019. It is the case of the petitioners that the petitioners have filed a civil suit being Special Civil Suit No. 76 of 2019 seeking quashing of the registered sale deed executed collusively so as to defeat the legal rights and interest of the petitioners. After filing of the civil suit, the respondent no. 8 who initially made an application on 25.06.2019 to transfer the property in question and enter their name in the property card withdrew such application with a view to make such application once the civil suit was finally decided. The case of the petitioners is that on 19.07.2019, the City Survey Superintendent rejected the application of the respondent no. 8 stating that the name of respondent no. 8 cannot be entered into the revenue records or the property card unless there is partition or subplotting.
5.3 Under challenge in this petition is a resolution dated 27.09.2019 issued by the Rajkot Municipal Corporation (for short ‘the Corporation’). It is the case of the petitioners that by the impugned Resolution No. 166 dated 27.09.2019 passed by the Rajkot Municipal Corporation in its Standing Committee, the Rakjot Municipal Corporation resolved in laying down a street line by virtue of which the existing bridge is proposed to be widened from 6.20 mtrs to 15 mtrs. This is to be done by acquiring the disputed property in question. The challenge according to the petitioners is that by virtue of the sale deed and claiming ownership of that portion of land of which the resolution impugned is passed, the Rajkot Municipal Corporation is obliging the respondent no. 8 under the guise of road widening to provide a better approach road and a better frontage to the new residential project of respondent no. 8. The action is therefore challenged on the ground o
