Natvarlal Penubhai Decd. Thro' Legal ... vs State Of Gujarat on 24 February, 2023

[Cites 31, Cited by 0]

Gujarat High Court

Natvarlal Penubhai Decd. Thro' Legal ... vs State Of Gujarat on 24 February, 2023

========================================================== NATVARLAL PENUBHAI DECD. THRO' LEGAL HEIRS & 4 other(s) Versus STATE OF GUJARAT & 8 other(s) ========================================================== Appearance:

Appearance:

MR YN OZA, SENIOR ADVOCATE, with MR RAJESH K SAVJANI(2225) for the Petitioner(s) No.2, 2.1, 2.2, 2.3, 2.4, 2.5, 2.5.1, 2.5.2, 2.5.3, 3, 4, 4.2, 5, 5.1, 5.2, 5.3 DECEASED LITIGANT for the Respondent(s) No. 4,5 MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2 MR PRASHANT G DESAI, SENIOR ADVOCATE with MR. KAUSHAL D. PANDYA, (291) for the Respondent(s) No. 3 MR DHAVAL D VYAS(3225) for the Respondent(s) No. 6 MR KK TRIVEDI(934) for the Respondent(s) No. 7,8,9 ================================================================ CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 24/02/2023 COMMON CAV JUDGMENT Page 1 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 (1) The present writ petitions emanate from Town Planning Scheme Surat No.6 (Majura-Khatodra) with regard to Final Plots No.85 and 86 situated in Village Majura, Taluka Choryasi, District Surat (Original Plot No.53/A).

FACTS:

(2) It is the case of the petitioners that they are the owners and occupiers of the aforesaid Final Plots No.85 and 86 (Original Plot No.53/ A and later on bifurcated into Survey No.53/2/1 and Survey No.53/2paiki) as per the Town Planning Scheme.

2.1) Pursuant to a registered partition deed dated 03.10.1975 entered into between the members of Penubhai Parshottambhai HUF namely - (1) Penubhai Parshottambhai, (2) Parsanaben Parshottambhai, (3) Natvarlal Penubhai, (4) Vasudev Penubhai, (5) Devidas Penubhai, (6) Chandrakant Penubhai; and (7) Shivdas Penubhai, the concerned plot is divided into seven equal parts amongst the petitioners. The petitioners in their support have produced a map annexed with the partition deed.

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C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 2.2) Accordingly, on 03.11.1975, Entry No.1350 came to be mutated in the revenue record, showing partition and names of all seven parties to the partition deed, which was certified on 31.12.1975.

2.3) The petitioners have stated that the parcel of land in Survey No.53/2/1 is in the ownership of seven members, out of which two co-owners viz. Parsanaben and Penubhai were given Final Plot No.86 and the said two co-owners lost their entire parcel of land and no portion of the land was deducted from the area of other five co-owners of the partition deed. The petitioners have alleged that in view of the Town Planning Scheme, the said two owners lost their entire parcel of land.

2.4) On 28.07.1987, the Final T.P. Scheme was sanctioned and came into force. The Town Planning Scheme came to be finalized, being Town Planning Scheme Surat No.6 (Majura- Khatodara) wherein, in lieu of Survey No.53/2/1, two final plots i.e. Nos.85 and 86 were carved out. The Final Plot No.85 came to be allotted to the petitioners and Final Plot No.86 came to be allotted to the private respondents herein from the land of Parsanaben Page 3 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 and Penubhai, whose entire parcel of land was taken away while giving effect to the said scheme.

2.5) Shri Penubhai passed away on 16.12.1982 and Parsanaben Penubhai passed away on 05.03.1989.

2.6) Being aggrieved by the same, the petitioners (legal heirs of Penubhai) preferred the present petitions being Special Civil Application Nos.3018 of 1999 and 3022 of 1999 inter alia challenging the Town Planning Scheme Surat No.6 (Majura-Khatodara) in respect of land bearing Survey No.53/2/p and Survey no. 53/2/1) re-numbered as Final Plot Nos.85 and 86.

2.7) In the year 2016, after order dated 27.07.2016 passed by this Court, the petitioners even placed on record Entry No.1350 by way of an additional affidavit to show that the names of the petitioners were incorporated in the revenue record giving effect to the partition deed dated 03.10.1975.

2.8) Recently, the respondent - Town Planning authority, issued a notice dated 16.03.2022 addressed in the name of staff of the Page 4 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 petitioners asking the petitioners to vacate the Final Plot Nos.85 and 86. The petitioners have replied to the same on 04.04.2022 bringing out the correct facts by clearly stating therein that no copy of the sketch or map, as indicated in the notice dated 16.03.2022, has been provided to the petitioners and requesting the respondent authorities to provide the same.

2.9) The petitioner preferred Civil Application (for amendment) No.2 of 2022 in both the petitions to challenge to the notice dated 16.03.2022 and all consequential action undertaken thereto.

SUBMISSION OF THE PETITIONERS:

(3) Learned Senior Advocate Mr.Y.N.Oza with learned advocate Mr.Savjani appearing for the petitioners at the outset has submitted that the petitioners are not challenging the Town Planning Scheme but their objection is with regard to the manner of the division of the final plot. He has contended that the Town Planning Officer ought to have considered the registered partition deed dated 03.10.1975 and Entry No.1350, which is mutated in the revenue records and accordingly should have finalized Page 5 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 the plot under the Town Planning Scheme. It is submitted that under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (in short "the Town Planning Act"), the Town Planning Officer has the power to vary the scheme and in the present case, when the scheme was not even at a final stage, the Town Planning Officer, ought to have considered the share of the petitioners as divided vide registered partition deed dated 03.10.1975 and not as that of the joint ownership and accordingly ought to have made variation to that effect so that no authorized and lawful owner and occupant of any parcel of land could have been deprived of his/her land as is the case in the present petitions. It is submitted that the very intent of the Legislature in providing for power of variation on account of an error, irregularity or informality is to ensure that no lawful owner or occupant is divested of his or her land/property while giving effect to the scheme.

3.1) Learned Senior Advocate Mr.Oza has contended that registration of a document is deemed notice and an authority such as the Town Planning Officer is only expected to consider Page 6 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 all revenue record before, during and after the process concerning the Town Planning Scheme so as to ensure that no person is affected adversely or deprived of his or her land which otherwise is a constitutional right under law. It is submitted that the deceased - Parsanaben and Penubhai were not allotted any final plot and their shares were taken away and allotted to the private respondents without considering the above.

3.2) It is further submitted by learned Senior Advocate that the provisions relating to the record of rights under Section 135 of the Gujarat Land Revenue Code, 1879 ("the Code"

for short) also cannot be by-passed by the Town Planning Officer in so far as it is established that the partition deed is a registered instrument, duly notified and certified in the revenue records pertaining to the said land.

3.3) Learned Senior Advocate Mr.Oza, while placing reliance on the judgment in the case of Dr.Abraham Patani of Mumbai and Anr. vs. State of Maharashtra and Ors., 2022 SCC OnLine S.C. 1143, has submitted that it is well settled that provisions of one statute should not be Page 7 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 construed or interpreted in a manner that they render redundant the provisions in another statute, and the Court's endeavour shall always be to harmoniously construct such provisions so that the legislative intent underlying both statutes can be fulfilled. Thus, it is urged that since the provisions of Section 135 of the Gujarat Land Revenue Code read with the provisions of the Gujarat Town Planning and Urban Development Act, 1976, are violated, the action of the respondents suffers from patent illegality, which warrants interference of this Court.

SUBMISSIONS ON BEHALF OF NO.3:

(4) Learned Senior Advocate Mr.Prashant Desai with Mr.Pandya appearing for the respondent-Surat Municipal Corporation (SMC) at the outset has submitted that the writ petitions filed by the petitioners are not maintainable since the same are filed after declaration and finalization of the Town Planning Scheme.

4.1) It is submitted by learned Senior Advocate that intention of the scheme has been declared on 23.12.1968 and on 06.09.1971 the State Government has accorded it's sanction to the Page 8 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 Draft Town Planning Scheme. Learned Senior Advocate Mr.Desai has asserted that the Preliminary Town Planning Scheme No.6 (Majura- Khatodara) Surat has been sanctioned under section 65 of the Town Planning Act, by the State Government on 27.10.1980 and Final Scheme has been sanctioned on 28.07.1987.

4.2) It is submitted by learned Senior Advocate that under the sanctioned scheme, the land bearing Revenue Survey No.53/2/p, admeasuring 11,600 sq.mtrs is renamed as Original Plot No.53/A and against which Final Plot No.85, admeasuring 8,452 sq.mtrs has been allotted to its owners. Learned Senior Advocate Mr.Desai has submitted the petitioners had not raised any objection at the draft stage of the scheme or at the preliminary scheme and for the first time, objection has been raised after the preliminary scheme is sanctioned by the State Government, hence, as per the decision of the Supreme Court in the case of Babulal Badriprasad Varma vs. Surat Municipal Corporation, AIR 2008 S.C. 2919, the writ petitions do not require to be entertained. It is submitted that as per section 67 of the Town Planning Act, the petitioners have lost right, title and interest from the land Page 9 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 bearing Revenue Survey No.53/2/p on and after the date, on which the preliminary scheme has been sanctioned by the State Government.

4.3) While placing reliance on the judgment of this Court in the case of Kashiben wd./o Pitambar Devchand vs. State of Gujarat, 1989 (2) G.L.R. 1176, learned Senior Advocate Mr.Desai has submitted that as per the provisions of the Town Planning Act, the date, on which the preliminary scheme is sanctioned by the State Government it becomes part of the Act and, therefore, in view of the observations made by this Court, the writ petition itself is not maintainable. It is contended that by not raising objections at the relevant stage of the scheme, the petitioners have waived their right to object allotment of Final Plot No.85 in joint ownership and hence, the petitioners have no right to question the scheme at the implementation stage.

4.4) Learned Senior advocate Mr.Desai has submitted that respondent no.3, being implementing authority, is duty bound to implement the scheme, which has been sanctioned by the State Government under section 65 of the Town Planning Act, as observed by the Apex Court in Page 10 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 the case of Municipal Corporation for Greater Bombay vs. Advance Builders, 1971(3) SCC 381 and, therefore, the present petitions deserve to be dismissed.

4.5) It is submitted by the learned Senior Advocate Mr.Desai that a notice dated 16.03.2022 has been issued to the petitioners under section 68 of the Town Planning Act read with Rule 33 of the Gujarat Town Planning & Urban Development Rules, 1979 (for short "the Town Planning Rules") for implementation of the scheme. It is submitted that in the year 2015, Section 67A has been inserted in the Town Planning Act, whereunder the petitioners can approach the Committee for separation of plot from Final Plot No.85 and, therefore, it is urged by him that the present petitions deserve to be dismissed, as the petitioners have alternate remedy available under the statute.

SUBMISSIONS OF RESPONDENT NOS.7-9:

(5) Learned Advocate Mr.K.K.Trivedi appearing for the respondent nos.7 to 9 has submitted that the petitions are barred by delay, latches, waiver and estoppel. It is submitted that Page 11 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 there is nothing on record to point out as to whether the petitioners filed any objection before the Town Planning Officer with regard to reconstitution of their original plot or not. It is submitted that in the sanctioned final scheme, respondent Nos.7 to 9 are allotted Final Plot No.86, admeasuring 3,449 sq.mtrs. from the reconstitution of the Revenue Survey No.53/2 paiki, Original Plot No.53/A against their land bearing City Survey No.1208, Original Plot No.260/B, admeasuring 7,534.73 sq.mtrs. It is submitted that thus, the petitioners lost the land area admeasuring 4085.73 sq.mtrs. under the Town Planning Scheme. It is submitted that the respondent-

Corporation is duty bound to implement the Final Town Planning Scheme, as per the provisions of sections 68 and 69 of the Town Planning Act by handing over actual, physical and legal possession of Final Plot No.86 under the Town Planning Scheme No.6 (Majura- Khatodara). Reliance is placed by him on the judgment in case of Advance Builders (supra). Thus, it is urged by him that the writ petitions may be dismissed.

CONCLUSION:

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C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 (6) The facts, which are established from the record are that the respondent-SMC declared its intention to make Town Planning Scheme Surat No.6 (Majura-Khatodra) under the provisions of Section 23 of the Town Planning Act, 1954, which is corresponding to the provisions of Section 42 of the Gujarat Town Planning Act, 1976 on 23.12.1968. The intention of the scheme has been declared on 23.12.1968 and on 06.09.1971, the State Government granted sanction to the Draft Town Planning Scheme. The entire case of the petitioners hinges on the partition deed dated 03.10.1975 of land bearing Revenue Survey No.53/2/1, which has been re-numbered as Final Plot No.85 , which is unquestionably after the sanction of the Draft Town Planning Scheme by the State Government on 06.09.1971. Hence, when the intention of the scheme was declared and the same was sanctioned and Entry No.1350 was mutated in the revenue record of partition, the draft scheme was already sanctioned by the State Government. The State Government sanctioned the preliminary scheme being Town Planning Scheme No.6 under Section 65 of the Gujarat Town Planning Act, 1976 on 27.10.1980 and the final scheme was sanctioned on 28.07.1987. Thus, the contention with Page 13 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 regard to ignoring the permission of Section 135 of the Code canvassed by the petitioners does not merit acceptance.

(7) The declaration and intention of the Draft Town Planning Scheme is provided under Chapter-IV of the Bombay Town Planning Act, 1954. The Bombay Town Planning Act, 1954 has been repealed by the Gujarat Town Planning Act, 1976, however, all the action taken with regard to the town planning under the old Act are saved. The relevant provisions would be section 22, which mentions about the intention to declare a draft scheme. In the present case, the intention was declared on 23.12.1968. The relevant provisions of Sections 24 to 28 and 32 to 34 of the T.P. Act, 1954 are incorporated as under:

"24.(1) Notwithstanding anything contained in sections 22 and 23, the State Government may, in respect of any local authority, after making such inquiry as it deems necessary, by notification published in the prescribed manner require the local authority to make and publish in the prescribed manner and submit for its sanction a draft scheme in respect of any land in regard to which a town planning scheme may be made."

25. The draft scheme shall contain the following particulars:-

(a) the area, ownership and tenure of each original plot;

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C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023

26. (1) In the draft scheme the size and shape of every reconstituted plot shall be determined, so far as may be, to render it suitable for building purposes and where the plot is already built upon, the ensure that the building as far as possible complies with the provisions of the scheme as regards open spaces.

26. (2) For the purpose of sub-section (1), the draft scheme may contain proposals, --

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) to provide with the consent of the owners that two or more original plots each of which is held in ownership is severally or in joint ownership shall hereafter, with or without alteration of boundaries, be held in ownership in common as a reconsituted plot;

27. If within one month from the date of publication fo the draft scheme any person affected by such scheme communicates in writing to the local authority any objection relating to such scheme, the local authority shall consider such objection and may, at any time before submitting the draft scheme to the State Government as hereinafter provided, modify such scheme as it thinks fit.

28.(1) The local authority shall within four months from the date of its publication in the Official Gazette submit the draft scheme with any modifications which it may have made herein together with the objections which may have been communicated to it to the State Government and shall at the same time apply for its sanction.

32.(1) In accordance with the prescribed procedure the Town Planning Officer shall,--

(i) after notice given by him in the prescribed manner, define and demarcate the areas allotted to, or reserved, for a public purpose or purpose of the local authority and the reconstituted plots;

(ii) after notice given by him in the prescribed manner, determine, in the case in whjich a reconstituted plot is to be allotted to persons in ownership in common, the shares of such persons;

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33. Except in matters arising out of clauses (v), (vi),

(viii), (ix), (x) and (xiii) of sub-section (1) of section 32, every decision of the Town Planning Officer shall be final and conclusive and binding on all persons.

34. Any decision of the Town Planning Officer under clauses (v), (vi), (viii), (ix), (x) and (xiii) of sub- section (1) of section 32 shall be forthwith communicated to the party concerned and any party aggrieved by any such decision may, within one month from the date of the communication of the decision to the District Judge for decision of the appeal by a Board of Appeal constituted under section 35; and on receipt of an appeal as aforesaid the Board of Appeal shall, as soon as may be, constituted as hereinafter provided, and shall hear and decide the appeal."

(8) The aforementioned provisions unequivocally suggest that the legislature intended to afford sufficient opportunities to the affected individuals to put forward their objections to a Town Planning Scheme. It is not the case of the petitioners that they were not aware of the publication of the notification of the Town Planning Scheme in this regard. Clause (c) of sub-section (2) to Section 26 of the T.P. Act, 1954 stipulates the scenario in which the plots which are jointly owned with or without alteration of boundaries. Section 27 stipulates the consideration of objections received by the local authority within one month of the publication of the draft scheme, and the modification of the draft scheme by the State Page 16 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 Government after receipt of such objection. The Town Planning Officer is appointed after sanction of the State Government under the provision of section 32 of the T.P. Act, 1954, who has to issue a notice for determining the re-constituted plot. Section 33 stipulates the decision of the Town Planning Officer as binding except in matters arising out of clauses (v),(vi),(viii), (ix), (x) and (xiii) of sub-section (1) of section 32. The case of the petitioners does not fall under these clauses. Finally, Chapter-VI of the T.P. Act prescribes the procedure of preliminary scheme and declaration of final Town Planning Scheme.

(9) In the present case under the sanctioned scheme, the land bearing Revenue Survey No.53/2/p, admeasuring 11,600 sq.mtrs., was renamed as the Original Plot No.53/A and against which, Final Plot No.85, admeasuring 8,452 sq.mtrs., has been allotted to its owners. The petitioners, in the present writ petitions, have questioned the division of Final Plot No.85 by counting their shares instead of entire plot. It is their case that the division should have been made as per the share as mentioned in the partition deed. It is their case that since partition was already Page 17 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 mutated in the revenue record and an entry to that effect was also mutated, the respondent- SMC, while finalizing the plot should have considered the individual plot instead of one consolidated plot. It is pertinent to note that the petitioners have raised such objections for the first time in the year 1999, after finalization of the T.P. Scheme, that too when the original plot owner - Penubhai passed away on 16.12.1982 and his wife Parsanaben Penubhai passed away on 05.03.1989.

(10) At this stage, it would be apposite to refer to the observations made by the Division Bench of this Court in the case of Kashiben wd/o Pitambar Devchand (supra), wherein the Court has in context of the provision of section 67 of the Act of 1976 has held that the preliminary scheme, which is sanctioned by the State Government becomes part of that and, therefore, the writ petitions would not be maintainable. The Division Bench has held thus:

"6. In yet another Full Bench decision of our High Court in the cases of Saiyed Mohammad v. Ahmedabad Municipal Corporation, reported in 18 G.L.R. 549, the Full Bench, dealing with the impugned notice of eviction observed -

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C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 "In view of Section 53, once property has vested absolutely in the local authority and all rights of these persons occupying the same have come to an end, the eviction power would be merely an administrative power of eviction. Such eviction would be of the same nature as of the persons who are evicted under the provisions of the Land Acquisition Act after the acquired land has vested in the State and the matter is only of taking possession."

In this decision, the Full Bench has observed that, once the land vests with the authority concerned as per Scheme, the Scheme has become a legislative measure under which the rights of the parties have totally ceased to occupy the property and the power of eviction in such a context would be in the nature of an administrative power, and, therefore, when the parties admittedly have no right under the final scheme to continue their occupation, they could never invoke any prejudice or consideration of the principle of fair play and justice so as to have been these impugned notices invalidated.

7. Considering the abovesaid decisions and also the fact that the preliminary Scheme has been already sanctioned as early as 27-10-1980, which has become the part of the Act, same cannot be questioned as late as in the year 1988."

(11) The Coordinate Bench of this Court in the case of Sukeshi Vijaybhai Bhatt vs. State of Gujarat, AIR 2021 CC 2741, after survey of various decisions of Apex Court and this Court, has held thus:

"30 It also emerges from the record that the State Government sanctioned the varied Draft TP scheme by notification dated 31.3.1975 published in the gazette on 10.4.1975. Thus the varied Draft TP Scheme was sanctioned prior to coming into force of the Act, 1976. In such circumstances, the contention raised on behalf of the petitioners that there is a deduction of more than 50% of the land is not tenable, as such land was Page 19 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 reserved for public purpose for post and telegraph department and slum clearance housing at the relevant time. It is well settled legal position and it is a trite law with regard to the legality and effect of sanctioned Town Planning Scheme under the Bombay Town Planning Act as well as Gujarat Town Planning Act and this Court as well as Supreme Court has time and again held that once the Draft Scheme is sanctioned by the State Government it partakes the character of statute. Following decisions of this Court as well as Supreme Court are referred to for such settled legal position :

1) This Court in case of Kanjibhai Dahyabhai Malsattar v. State of Gujarat (supra) held that TP Scheme would become final under section 65 read with section 67 of the Act, 1976 and once the Scheme has become final, all the lands would vest in Area Development Authority free from all encumbrances and as such, the petitioners are required to vacate the land.

2) In case of Babulal Badriprasad Varma v. Surat Municipal Corporation (supra), the Apex Court held that, in facts of the said case, the appellant through his conduct has waived his right to equitable remedy as it would operate as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the Scheme in question has attained finality as a result of the appellant's inaction.

3) This Court in case of Jiviben Hansrajbhai Patel Wd/o Hansrajbhai Devjibhai Patel v. State of Gujarat through Secretary (supra) held that once Final Plot is reserved for public purpose, the contention of the petitioner in the said case for allotment of lesser area of Final Plot was rejected on the ground that the Scheme has attained finality and the matter to be considered only with respect to enforcement of the Scheme.

4) In case of Satyadev Parasnath Pandey v. State of Gujarat (supra), this Court held that provisions of section 48A of the Act, 1976 clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. It was held that doctrine of proportionality requires that the balance has to be stuck between the individual claim and the right of the society and accordingly when the land is reserved for public purpose, the petitioner cannot Page 20 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 claim any compensation from the respondent authority.

5) In case of Ramanbhai Hargovinddas Limbachia v.

State of Gujarat (supra), it was held by this Court that the petitioners have no locus to raise the objection to purchase the land after sanctioning of the Town Planning Scheme. Admittedly, in facts of the case, father of the petitioners purchased the land after the sanctioning of the Town Planning Scheme in the year 1975."

(12) Thus, it is no more res integra that once the draft T.P. Scheme and the preliminary scheme have become part of the Act, the same cannot be questioned, since it partakes the character of statute. In the present case, the petitioners, though have very modishly stated that they are not questioning the T.P Scheme, but simultaneously are claiming the relief which directly affects the Town Planning Scheme by asserting that the final plot should have been finalized after considering their respective shares as per the partition deed. The aforesaid submissions, though seem to be innocuous, do not merit acceptance, since all the objections of the concerned parties and the niceties and nuances of the T.P. Scheme can only be considered as per the time frame specified in the statute, and not at any stage as per the convenience of the petitioners. In the case of Advance Builders (supra), the Supreme Court has held that the Corporation, Page 21 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 being an implementing authority, is duty bound to implement the scheme, which has been sanctioned under Section 65 of the 1976 Act. The Division Bench, vide judgment dated 20/22.04.1992 passed in Special Civil Application No.1608 of 1979 has held that once a public notice is given and issued by the Town Planning Officer, there is no requirement of issuing a personal notice under the provisions of the Act. The Division Bench has placed reliance on the judgment of State of Gujarat vs. Panch of Nani Hanuman's Pole, AIR 1986 S.C. 803. Hence, after 28.07.1987, when the final T.P. Scheme was sanctioned, the writ petition cannot be entertained on an objection raised by the petitioners for the first time in the year 1999. In case the contention of the petitioners is accepted with regard to the division of the plot as per the partition deed, the same will amount to tinkering with the T.P. Scheme. In fact by not responding to the public notice or registering their concern with regard to the manner of finalizing the concern plot, the petitioners have waived their right of taking such objections.

(13) At this stage, I may refer to the observations of the Apex Court in the case of Babulal Page 22 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 Badriprasad Varma (supra), wherein, while examining the provisions of the Gujarat Town Planning Act, it has been held thus:

"24......A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation.

28. Section 67 of the Act provides that all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force. What would be the quantum of payment of compensation therefor is also provided in Section 82 of the Act. It is in the aforementioned situation, a claim is to be made before the authority whenever a notice in Form H is published. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Had such a claim been filed, the authority before making final allotment could have considered the competing claims wherefor a large number of factors were required to be taken into consideration, viz., the location of the land, the area of the land, the nature of right, etc. " 33. ......................In Halsbury's Laws of England, Volume 16(2), 4th edition, para 907, it is stated:

"The expression `waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular Page 23 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it."

13. As early as 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425 in the following terms:

"It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. As Sir Johan Romilly M. R. has observed in Vyvyan v. Vyvyan [(1861) 30 Beav. 65, 74; 54 E.R. 813, 817] "waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim".

(14) As noticed hereinabove, the entire case of the petitioners hinges on finalization of the plot by calculating their respective shares on the entire plot. In this regard the petitioners have also contended that the respondent-SMC, in the process of finalizing the T.P. Scheme, Page 24 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 should have considered Entry No.1350 mutated in the revenue record showing the respective plot of the each of the petitioners. Such a contention raised by the petitioners cannot be entertained in wake of the aforementioned mentioned provisions of the Bombay Town Planning Act, 1954 and also the Gujarat Town Planning Act, 1976, after finalization of the Town Planning Scheme. As noted hereinabove, the partition deed dated 03.10.1975 of land bearing Revenue Survey No.53/2, has been executed subsequently, after sanction of the Draft Town Planning Scheme by the State Government on 06.09.1971. Thus, till the stage of the Draft Scheme the revenue record showed a consolidated plot and not in divisions, hence the Town Planning Officer proceeded on the basis of the single plot of Revenue Survey No.53/2. The State Government sanctioned the preliminary scheme being Town Planning Scheme No.6 under Section 65 of the Gujarat Town Planning Act, 1976 on 27.10.1980 and the final scheme was sanctioned on 28.07.1987. At no point of time, the petitioners have raised an objection, hence the grievance of the petitioners does not merit acceptance. This Court cannot exercise its discretion by invoking its extraordinary powers conferred Page 25 of 27 Downloaded on : Mon Feb 27 20:42:13 IST 2023 C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 under Article 226 of the Constitution of India for issuing any directions as prayed for in the writ petition, since such directions will dilute the entire purport and the scheme of the Act. The writ petition is barred by the principle of waiver and estoppel. Any directions issued at this stage will be deleterious to the objects of the Town Planning Scheme, and will set a wrong precedent. No directions, even on the suggestion of the respondent-Corporation can be issued by this Court for examining the grievance of the petitioners by a Committee formed under section 67 of the T.P. Act, 1976. Such a direction, if is issued, will further give rise to a fresh cause of action and new litigation, after passage of almost 35 years from the finalization of the T.P.Scheme and that too in a writ petition, which has been filed after a period of 12 years after finalization of the Town Planning Scheme. Hence, I am not inclined to interfere with the notice dated 16.03.2022, which is served recently during the pendency of the writ petitions and are produced in the connected civil applications.

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C/SCA/3018/1999 CAV JUDGMENT DATED: 24/02/2023 (15) The writ petition fails legal scrutiny, hence is dismissed. Rule is discharged.

(16) Since, the writ petitions are dismissed, as a sequel, no orders are required to be passed in the connected civil applications.

                                                                               Sd/-          .
                                                                     (A. S. SUPEHIA, J)

                                 FURTHER ORDER

          After       the     judgment         is       pronounced,              learned
advocate             Mr.Anurag    Rathod              for     learned          advocate

Mr.Oza, requests for stay of the judgment and order. The same is refused in view of the aforesaid observations.

                                                                           Sd/-    .
                                                                   (A. S. SUPEHIA, J)
Bhavesh-[PPS]*




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