In a Letters Patent Appeal, the High Court dismissed the appeal against the summary dismissal of a petition seeking alternative land or additional FSI. The court held that the appellant, having already utilized full extra FSI at the reduced plot site, could not claim a second benefit of alternative land.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/LPA/2659/2010 JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2659 of 2010
In SPECIAL CIVIL APPLICATION NO. 4310 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE S.G.SHAH
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NITIN CHANDRAKANT KAKKAD....Appellant(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 2....Respondent(s)
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Appearance:
MR SANDEEP N BHATT, ADVOCATE for the Appellant(s) No. 1 GOVERNMENT PLEADER for the Respondent(s) No. 1 MR NISHANT LALAKIYA, ADVOCATE for the Respondent(s) No. 2 - 3 RULE SERVED BY DS for the Respondent(s) No. 1 - 3
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C/LPA/2659/2010 JUDGEMNT
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and HONOURABLE MR.JUSTICE S.G.SHAH
Date : 08/01/2013
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.G.SHAH)
The appellant, who was petitioner in Special Civil Application No. 4310 of 2010, has challenged the order dated 13/8/2010 passed by the Ld. Single Judge dismissing the petition summarily. The respondents are the State of Gujarat and Officers of the Rajkot Municipal Corporation.
2 The appeal was admitted by order dated 17/11/2011 and listed thereafter on several occasions. On 13/4/2012 the Court has directed the respondent nos. 2 and 3 to file the order by which additional FSI and other benefits were granted to the appellant – petitioner along with an additional affidavit. By order dated 24/9/2012 the appellant- petitioner was directed to disclose the extent of construction in square meter that he had made and also to disclose, whether any margin space in the front and corner length has been kept and whether any parking space has been kept, in compliance with Municipal rules.
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3 In addition to memo of appeal, the appellant has produced on record entire bunch of petition with its annexures. Whereas the respondents have filed their affidavit dated 19/6/2012 in compliance with the order dated 13/4/2012. Similarly the appellant has also filed an affidavit on 1/11/2012 in compliance with the order dated 24/9/2012.
4 Heard Ld. Counsel Mr. Sandip N Bhatt for the appellant, Mr. NJ Shah, Ld. AGP for the respondent no. 1 and Mr. Nishant Lalakiya for respondent nos. 2 and 3. Perused the available record.
5 By the impugned order, the Ld. Single Judge has summarily dismissed the petition on the ground that in response of the notice issued by the Court, affidavit-in-reply was filed on behalf of the Corporation pointing out that as per the policy of the Corporation, in lieu of the land which was taken away for the purpose of widening of the road, either some additional space was to be given or additional FSI was to be given and that so far as the appellant petitioner is concerned, since he was already given additional FSI, which he has utilized also by making fresh
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construction without keeping any marginal space on two sides of the plot, which is facing public road and without leaving any space for parking, appellant – petitioner cannot be given any additional FSI in lieu of the acquired land and, therefore, the appellant - petitioner is not entitled to additional space also.
5.1. Mr. Bhatt for the appellant has vehemently argued that the piece of land is not sufficient to utilize it at all and more particularly now there is no possibility to construct the 2nd floor and, therefore, practically the additional FSI has no meaning and that on the ground of equity, when his neighbourers were granted alternative space, he should have also been given alternative space by the Corporation. In support of such submission, he has produced relevant documents on record. Such documents confirm the statement of the appellant and when respondents have disclosed on record that the appellant - petitioner was not only granted the FSI, but has utilized additional FSI, for confirmation of such factual details, at-least on two occasions, the Court has directed both the parties to produce relevant information on record. In response of such orders dated 13/4/2012 and 24/9/2012, the appellant and respondents have filed affidavits on record. On perusal of such affidavits, it becomes clear that the respondent
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Corporation has disclosed relevant information which can be found on pages 45 to 50, wherein it has been clear that the appellant – petitioner was permitted to construct on 45.93 sq. mtrs., instead of 31.26 sq. mtrs., of area without keeping 4.5 mtrs., margin space in front and 2.5 mtrs., margin space in corner length and without keeping parking space at all against the rule of keeping 30% of the land open for parking space. Thereby, considering the measurement of the plot remains with the appellant being 47.37 sq. mtrs., instead of permissible FSI of 0.31, the FSI for his construction was permitted upto 2.00 i.e. almost seven times.
6 Considering such aspect of permitting full FSI against alternate land, when appellant tried to emphasize that it is difficult for him to utilize such space, a specific information was asked for from him by order dated 24/9/2012. The additional affidavit filed by the appellant after such order in December 2012, practically does not disclose the requisite information. Instead of disclosing that how much space is kept open as marginal space or for parking, the appellant – petitioner has simply disclosed that he has made total construction of 495 sq. ft. i.e. approximately 45.93 sq. mtrs.; whereas that fact is not disputed that initially the petitioner appellant was having 149.39 sq. mtrs of land, out of which, 102.02
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sq. mtrs of land was acquired for widening of the public road and, therefore, only 47.37 sq. mtrs., of land remains in possession of the petitioner – appellant, wherein the construction is made on 45.93 sq. mtrs.
7 In any case, when the petitioner – appellant has been given a chance to select either additional FSI or alternate land and when the petitioner – appellant has selected one kind of benefit in the form of additional FSI, after utilizing such additional FSI, as discussed hereinabove, now he has no right to ask for double benefit i.e., second option of getting alternate land in lieu of acquisition of his land for widening of the road.
8 So far as the usefulness of the small piece of land is concerned, the fact remains that generally shop keeper would not like to change the locality and, therefore, if the appellant - petitioner has selected to remain at the same place with full FSI and when he has utilized such FSI by making new construction, now equity does not permit him to grant second benefit, only on the ground that other persons were granted alternate land in place of the acquisition. In that case, it would have been appropriate for the appellant - petitioner to select the alternative land in the
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beginning itself. Even throughout the present litigation, it was never stated by the appellant - petitioner that he would like to let go the additional FSI or entire piece of land being small in size so as to get better place at some distance.
9 Demand for additional land in lieu of FSI that can be utilized for the acquired land can also not be considered for the simple reason that there cannot be double benefit because of the acquisition of one piece of land. In that case, the appellant – petitioner should have either let go the entire piece of land so as to enable the respondent Corporation to utilize this 47.37 sq. mtrs., of land for some other public purpose like parking, etc. In such case, the appellant – petitioner would have got the better piece of land in some other area, but after utilizing full FSI at the given place, now the appellant – petitioner is not entitled to have second benefit in the form of piece of land at some other place.
10 In view of such facts and circumstances of the case, we do not find any illegality or irregularity in the order of the Ld. Single Judge so as to exercise our limited appellate jurisdiction and hence the appeal deserves to be dismissed.
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In view of the above, the appeal is hereby dismissed.
No order as to costs.
(V.M.SAHAI, J.)
(S.G.SHAH, J.)
VR Pansala.
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NITIN CHANDRAKANT KAKKAD
STATE OF GUJARAT
OFFICERS OF THE RAJKOT MUNICIPAL CORPORATION
VIJAY MANOHAR SAHAI
S.G. SHAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
