Gujarat High Court
Maganbhai Popatbhai Parmar vs Urban Housing And Urban Development ... on 14 March, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/17126/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17126 of 2015
With
SPECIAL CIVIL APPLICATION NO. 7709 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MAGANBHAI POPATBHAI PARMAR & 4....Petitioner(s) Versus URBAN HOUSING AND URBAN DEVELOPMENT DEPARTMENT &
14....Respondent(s) ========================================================== Appearance in SPECIAL CIVIL APPLICATION NO. 17126 of 2015 MR KAUSHAL D PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 5 MS. JYOTI BHATT, AGP, for the Respondent(s) No. 1 , 3 - 5 MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 6 - 7 MR JITENDRA M PATEL, ADVOCATE for the Respondent(s) No. 8 MR. MIHIR THAKORE, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Respondent(s) No. 9 MR. S.N. SOPARKAR, SENIOR ADVOCATE WITH MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 10 - 15 Appearance in SPECIAL CIVIL APPLICATION NO. 7709 of 2016 MR JITENDRA M. PATEL, ADVOCATE for the Petitioner(s) No. 1 Page 1 of 24 C/SCA/17126/2015 CAV JUDGMENT MS. JYOTI BHATT, AGP, for the Respondent(s) No. 1, 3 MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 2 MR KAUSHAL D PANDYA, ADVOCATE for the Respondent(s) No. 4 - 8 MR. MIHIR THAKORE, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Respondent(s) No. 9 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 14/03/2018 COMMON CAV JUDGMENT
1. Both the petitions being interconnected with each other and allegedly in respect of the same lands, were heard together and are being decided by this common order.
2. Special Civil Application No. 17126 of 2015 has been filed by the petitioners Maganbhai Popatbhai Parmar and others seeking following prayers : -
"(A) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to cancel the development permission issued for the development of land bearing R. S. No. 175, 176 and 181 (Final Plot Nos. 37 + 46 as per the draft Town Planning Scheme No. 7 (Sargasan - Kudasan - Por) village Sargasan, District Gandhinagar;
(B) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to demolish the construction in question since it is made de hors the provisions of the Act, 1976, and in breach of the order dated 15.12.2010 passed by this Hon'ble Court;Page 2 of 24 C/SCA/17126/2015 CAV JUDGMENT
(C) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to allot final plots as per revenue records by making appropriate change in Form 'F' prepared under the T.P. Scheme No. 7 (Sargasan -
Kudasan - Por) and also give necessary effect of order dated 15.12.2010 passed by this Hon'ble Court.
(D) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to respondent authority to take immediate actions against the erring officials and also against private respondents for construction in question and submit the report before this Hon'ble Court on or before next returnable date.
(E) Pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the construction activity going on upon the land in question;
In the alternate :
This Honourable Court may be pleased to direct the respondent authorities to initiate the action to stop the construction and submit the report before this Hon'ble Court on or before next date of hearing;
(F) Be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case."
3. The Special Civil Application No. 7709 of 2016 has been filed by the petitioner Revaben Naranbhai Chauhan, who is the respondent No. 8 in the Special Civil Application No. 17126 of 2015, seeking following prayers : -
Page 3 of 24 C/SCA/17126/2015 CAV JUDGMENT"(A) To stay the execution, operation and implementation of the impugned development permission dated 09.12.2014 along with consultation letter dated 15.04.2014 (Annexure 'A' collectively) and restrain the respondent No. 9, or his servants and agents from making further construction in pursuant to the aforesaid permission (Annexure A);
(B) To appoint Commissioner for drawing the panchnama of the existing construction put up by the respondent no. 9 as per the permission (Annexure A);
(C) Be pleased to direct the respondent authority to consider the objections dated 30.03.2016 filed by the petitioner before finalizing the scheme under Section 48(2) of the Act, 1976;
(D) Pass such other and further orders as may deem fit in the interest of justice."
4. As per the case of the petitioners, in Special Civil Application No. 17126 of 2015, they are the members of the socially, economically and educationally deprived "Chamar" community, and are residing at village Sargasan since last many years. The agricultural lands bearing Revenue Survey No. 175 admeasuring 5,351 sq. mtrs., Revenue Survey No. 176 admeasuring 5,946 sq. mtrs., Revenue Survey No. 181 admeasuring 11,654 sq. mtrs. and Revenue Survey No. 391 admeasuring 2,973 were allotted to the "Chamar" community for their livelihood. The State Government declared its intention in the year 2003-04 for the Town Planning Scheme No. 7 (Sargasan - Kudasan - Por) under the provisions contained in the Gujarat Town Planning and Urban Page 4 of 24 C/SCA/17126/2015 CAV JUDGMENT Development Act, 1976 (hereinafter referred to as 'the said Act'). Accordingly, the draft Town Planning Scheme No. 7 was submitted to the State Government for its sanction under Section 48 of the said Act, including the lands in question. Upon the sanctioning of the said draft scheme by the State Government vide the notification dated 20.12.2010, the Town Planning Officer was appointed under Section 50 of the said Act. According to the petitioners, though the name of "Chamar" community was shown in the revenue record as the occupiers, somehow in the record of Town Planning Scheme, the name of Government came to be shown. Accordingly, the final Plot Nos. 37 + 46 admeasuring 14,918 sq. mtrs. came to be allotted to the Government against the original Plot No. 37 (Revenue Survey No. 175), original Plot No. 38 (Revenue Survey No. 176), and original Plot No. 46 (Revenue Survey No.
181), as per the redistribution statement i.e. the Form No. 'F'. It is further case of the petitioners that pursuant to the development permission granted by the respondent authority, the respondent No. 9 had installed its advertisement board for the residential scheme upon the lands in question. When inquired by the petitioners under the Right to Information Act, the petitioners were not furnished with the requisite information by the concerned authority. It is further case of the petitioners that the possession of the lands in question was Page 5 of 24 C/SCA/17126/2015 CAV JUDGMENT with the petitioners except the land upon which the construction was being carried out by the respondent No. 9. The respondent No. 8 - Revaben through her power of attorney holder had filed C.M.A. No. 25 of 2000 in the Court of Principal Senior Civil Judge, Gandhinagar seeking probate in respect of the lands in question. The said application was rejected by the said Court vide the order dated 16.01.2006, against which the respondent No. 8 had preferred Misc. Civil Appeal No. 64 of 2006 before the Fast Track Court, Gandhinagar. The said appeal came to be allowed vide the order dated 30.07.2006, against which some of the members of the "Chamar" community had preferred the Second Appeal being No. 121 of 2010 before the High Court. The High Court had directed the parties to maintain status quo qua the lands in question vide the order dated 15.12.2010 (Annexure 'L'). Since the respondent No. 9 was putting up construction in violation of the said order dated 15.12.2010, the petition was filed by the petitioners.
5. The petition has been resisted by the respondent No. 2 by filing the affidavit-in- reply challenging the maintainability of the petition at the instance of the petitioners. It has been contended inter alia that the respondent No. 9 had made an application on 16.12.2013 along with the layout plan in consonance with Section 27, 34 and 149 of the Page 6 of 24 C/SCA/17126/2015 CAV JUDGMENT said Act in respect of the lands bearing Survey No. 392, 398/1, 406/2/1 and 184 of Final Plots Nos. 56 + 95 + 104 + 128/1 of Town Planning Scheme No. 7. The respondent No. 2 after seeking necessary opinions from the respondent No. 3, had granted the permission vide the order dated 26.08.2014 (Annexure VIII). Thereafter, the respondent No. 9 had sought development permission as per the revised application dated 07.11.2014 along with the plan for the proposed built up area of 31,009 sq. mtrs. on the said lands. The said revised permission was granted vide the order dated 09.12.2014 (Annexure X). Thus, the respondent No. 2 had acted absolutely in consonance with the provisions of the said Act and Rules.
6. The respondent No. 8 Revaben Chauhan through her Power of Attorney holder has filed the affidavit-in-reply challenging the locus standi of the petitioners to file the petition. According to this respondent, the original Survey No. 175, 176 and 181 were given original Plot No. 37, 38 and 46, and thereafter, the said plots were reconstituted as final Plot Nos. 37 and 46 admeasuring about 14,918 sq. mtrs., under the Town Planning Scheme No. 7. Similarly, the land bearing Survey No. 391/2 was given Original Plot No. 94 admeasuring 2,125 sq.mtrs., and it was reconstituted as Final Plot No. 94 admeasuring 1,381 sq. mtrs. under the said Page 7 of 24 C/SCA/17126/2015 CAV JUDGMENT scheme (Annexure R-1 and R-2). Neither the petitioners nor the respondent No. 9 had any right, title or interest over the said lands in question as they belonged to respondent No. 8 Revaben. This respondent has narrated the history of the proceedings initiated with regard to the mutation entries made in respect of the said lands, as also with regard to the proceedings initiated by her in the Civil Court, in respect of which the Second Appeal No. 121 of 2010 is pending before this Court.
7. The respondent No. 9 has resisted the petition by filing the affidavit-in-reply denying the allegations made in the petition, and further contending inter alia that the development permission granted to the said respondent No. 9 was not in respect of the lands in question i.e. Revenue Survey No. 175, 176 and 181 or for Final Plot No. 37 + 46. According to this respondent, the respondent No. 9, was the owner of Survey No. 406/2/1, 398/1, 184 and 392, which have been given Final Plot Nos. 56, 95, 104 and 128/1. The said lands were purchased from different owners as per the chart stated therein. It is further contended that the development permission was granted on 26.08.2014 in respect of the said Final Plots, and the revised development permission was granted by the respondent authority on 09.12.2014 (Annexure R1 collectively). As per the said development Page 8 of 24 C/SCA/17126/2015 CAV JUDGMENT permission granted by the respondent authority, the respondent No. 9 had started putting up construction on the said lands, and that substantial construction has already been carried out on the said lands. It is further stated that the respondent No. 9 had no concern about the Final Plots No. 37 + 46 which were the subject matter of Second Appeal No. 121 of 2010. The petition, therefore, was filed under complete false pretext. No such development permission in respect of Final Plot No. 37 + 46 was produced by the petitioners. There was no violation of the order dated 15.12.2010, apart from the fact that the respondent No. 9 was not the party to the proceedings in the Second Appeal. It is further contended that the petitioner No. 5 along with one Vijaybhai Babubhai Amin had filed Special Civil Application No. 7492 of 2009 challenging the succession certificate issued in Civil Misc. Application No. 25 of 2000 as well as the order dated 30.07.2008 passed in Civil Misc. Appeal No. 64 of 2008, as also the entry No. 3756 dated 20.12.2008 made by the Deputy Mamlatdar, Gandhinagar, however, the said petition was dismissed by this Court (Annexure R6). According to this respondent, none of the petitioners was the party to the proceedings of Second Appeal No. 121 of 2010. Thus, the petition is not only misconceived but is bad for non-joinder and misjoinder of parties. It was Page 9 of 24 C/SCA/17126/2015 CAV JUDGMENT filed only to harass the respondent No. 9 and extract money from the said respondent. The respondent No. 9 has also filed further affidavit stating inter alia that after the sanctioning of draft Town Planning Scheme No. 7, the preliminary Town Planning Scheme No. 7 was also sanctioned by the Government under Section 65(1) of the said Act as per the notification dated 15.05.2017, and that there was no variation in the Final Plot being No. 56 + 95 + 104 + 128/1 as per the calculation sheet allotted to the respondent No. 9 (Annexure A7).
8. The respondent No. 9 had also filed one more affidavit on 05.12.2017 stating inter alia that after the sanctioning of preliminary Town Planning Scheme, the respondent No. 9 had sought revised development permission from GUDA, and paid the requisite fees on 29.05.2017, and that the competent authority after following the procedure, had granted the revised development permission in October, 2017, and therefore, the development permission dated 09.12.2014 challenged by the petitioners had also stood cancelled. The said further affidavit filed by the respondent No. 9 was resisted by the petitioners by filing affidavit-in-rejoinder on 06.12.2017 contending inter alia that the permission dated 09.12.2014 could not be said to have been cancelled merely because the revised permission was granted on 10.10.2017.
Page 10 of 24 C/SCA/17126/2015 CAV JUDGMENT9. So far as Special Civil Application No. 7709 of 2016 is concerned, the petitioner Revaben Naranbhai (Respondent No. 8 in the Special Civil Application No. 17126 of 2015), claiming to be the owner of lands bearing Survey No. 175, 176 and 181, which were given original Plot Nos. 37, 38 and 46 totally admeasuring 14,918 sq. mtrs. and claiming to be owner of land bearing Survey No. 392/2 which was given Final Plot No. 94 admeasuring 1,318 sq. mtrs., has challenged the development permission dated 09.12.2014 allegedly granted to respondent No. 9 in respect of the said lands.
10. The learned advocate Mr. Kaushal D. Pandya for the petitioners vehemently submitted that the lands in question originally belonged to the "Chamar" community, of which the petitioners are the members, and therefore, the petitioners had right to protect the interest of community. The petitioners were the party - interested and affected as the said lands were given to their community for their livelihood, as transpiring from the record of the petition as well as of Second Appeal No. 121 of 2010. The learned advocate Mr. Pandya has relied upon the decisions of Supreme Court in the case of Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others versus Union Of India And Others reported in 1981 (1) SCC 568 and in the Page 11 of 24 C/SCA/17126/2015 CAV JUDGMENT case of Lok Prahari vs State Of Uttar Pradesh and Others reported in 2016 (8) SCC 389 to buttress his submissions that the petitioners have locus to file the petition. According to Mr. Pandya, the High Court having directed the parties to maintain status quo in the Second Appeal, the respondent No. 9 could not be permitted to carry on the construction on the lands in question. He further submitted that as per the draft scheme, the lands in question were kept under the reservation for public purpose, however, as per the preliminary scheme, the said lands were allotted to the respondent No. 9 without following the due process of law. The respondent No. 2 had granted the development permission in violation of the provisions of the said Act and ignoring the opinion of the Town Planning Officer. Relying upon the decision of this Court in the case of Modinagar Co-operative Housing Society Ltd. versus State of Gujarat reported in 2006 (3) GLR 2020, Mr. Pandya submitted that until and unless the final Town Planning Scheme is sanctioned, it could not be said that the person in whose favour, the land was allotted, had become an absolute owner, and therefore, the authority ought not to have granted development permission in anticipation that the draft Town Planning Scheme would be sanctioned.
11. The learned advocate Mr. Satyam Chhaya for Page 12 of 24 C/SCA/17126/2015 CAV JUDGMENT the respondent No. 2 placing reliance upon the affidavit-in-reply filed on behalf of respondent No. 2 submitted that the development permission was granted after obtaining necessary opinions from the respondent No. 3 - Town Planning Officer, and thereafter the revised development permission was also granted as per the provisions contained in the said Act.
12. The learned AGP Ms. Jyoti Bhatt for the respondent No. 1, 3 to 5 has supported the submissions made by the learned advocate Mr. Chhaya, and further submitted that the preliminary Town Planning Scheme was sanctioned as per the notification dated 15.05.2017, and the same has become part of the Act.
13. The learned Senior Advocate Mr. Mihir Thakore for Mr. Parthiv B. Shah for the respondent No. 9 vehemently submitted that the petitioners have no locus standi to file the petition, they being neither the persons interested nor affected, and that the petition was filed misusing the process of law to extract money from the respondent No. 9. He also submitted that the petition has become infructuous in view of the revised development permission granted by the authority after the sanctioning of preliminary Town Planning Scheme, and the relief as sought for could not be granted. He further submitted that views Page 13 of 24 C/SCA/17126/2015 CAV JUDGMENT expressed by the Single Bench in the case of Modinagar Co-operative Housing Society Ltd. (supra), relied upon by the learned advocate for the petitioners were diluted by the judgment in the case of Girishbhai Nagjibhai Savaliya versus State of Gujarat and Another reported in 2014 JX (Guj) 634. In the instant case, the petitioners had failed to raise objections as contemplated under the Act, and they have no right to challenge the development permission granted to the respondent No. 9, more particularly, when the said permission related to the other lands and not to the lands mentioned in the petition. The preliminary scheme having become final, it has become part of the said Act, and could not be challenged by the petitioners. The petition was filed abusing the process of law and therefore, the same is required to be dismissed.
14. As regards Special Civil Application No. 7709 of 2016, the learned Senior Advocate Mr. Thakore for the respondent No. 9, submitted that the development permission was granted by the competent authority in view of the affidavit filed by the petitioner Revaben, and in view of the fact that the possession of the lands in question were handed over to concerned authority, and even otherwise in view of revised development permission granted after the sanction of preliminary scheme, the relief prayed for in the petition, could not be Page 14 of 24 C/SCA/17126/2015 CAV JUDGMENT granted.
15. The learned Senior Advocate Mr. Soparkar for the learned advocate Ms. Archana Acharya for the respondent Nos. 10 to 15 submitted that the subject lands originally belonged to one Hirabhai Becharbhai and upon his death, to his wife Dudhiben. The respondent Nos. 10 to 15 had taken care of Dudhiben, and therefore, the said Dudhiben had executed a writing on 23.02.1971 in favour of the forefather of the respondent Nos. 10 to 15. He submitted that the respondent No. 8 Revaben had filed the probate proceedings against the respondent Nos. 10 to 15, and the same were dismissed by the trial Court, but the appeal having been allowed, the Second Appeal No. 121 of 2010 has been filed by the respondent No. 10 to 15. Mr. Soparkar in support of the submissions made by Mr. Thakore, submitted that the petitioners being not the party - respondents in the said proceedings, and the petitioners having no right, title or interest in the subject lands, the petitioners could not be said to have any locus standi to file the petition.
16. Learned advocate Mr. Jitendra M. Patel appearing for the respondent No. 8 Revaben Chauhan in Special Civil Application No. 17126 of 2015, who is the petitioner in Special Civil Application No. 7709 of 2016, submitted that the Page 15 of 24 C/SCA/17126/2015 CAV JUDGMENT said Revaben was the owner of the lands in question, and some portion thereof was covered under the final plots allotted to the respondent No. 9. The respondent No. 9 was granted development permission though the Town Planning Scheme was pending for sanction before the Government under Section 65 of the said Act, and therefore, the said permission was in violation of the provisions contained in the said Act. According to him, merely because the final Town Planning Scheme has now been sanctioned, the development permission illegally granted to the respondent No. 9 earlier would not automatically become legal.
17. At the outset, it is required to be noted that the petition being Special Civil Application No. 17126 of 2015 not only suffers from misconception of law and facts, but is also bad for misjoinder of causes of action and of the parties. The petitioners have made absolutely inaccurate and vague statements with regard to their interest or right in the lands in question. It is nowhere averred in the petition as to what individual or personal right, the petitioners had in the lands in question. It cannot be gainsaid that except in the Public Interest Litigation, the petitioners have to assert their personal legal right and show the legal injury suffered by them because of the alleged action or inaction of the Page 16 of 24 C/SCA/17126/2015 CAV JUDGMENT respondent authorities. Merely by stating that they belong to the "Chamar" community, and once upon a time the lands in question were allotted for the benefit of "Chamar" community, would not make the petitioners entitle to invoke the writ jurisdiction under Article 226 of the Constitution of India. There has to be judicially enforceable right available for enforcement on the basis of which the writ jurisdiction is restored to. As held by the Supreme Court in the case of Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and Others reported in (2013) 4 SCC 465, the person who has not suffered legal injury, could not be said to be an "aggrieved person" entitled to file the petition under Article 226 of the Constitution of India. Para 7 and 8 of the said judgment read as under : -
"7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that Page 17 of 24 C/SCA/17126/2015 CAV JUDGMENT such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).
8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved"
does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361)."
18. The Supreme Court in the case of the Calcutta Gas Company (Proprietary) Ltd. versus the State of West Bengal and Others reported in AIR 1962 SC 1044, has also held inter alia that the relief asked for in the petition under Page 18 of 24 C/SCA/17126/2015 CAV JUDGMENT Article 226 of the Constitution of India, must be one to enforce a legal right, which ordinarily should be personal or individual right of the petitioner himself. In the instant case, the petitioners have nowhere stated in the petition about their personal, legal and enforceable right qua the lands in question. From the entire tenor of the petition, it transpires that the private disputes between the petitioners and the private respondents have been sought to be agitated under the banner of being members of "Chamar" community, and as such there was no violation of any statutory or legal right of the petitioners at the instance of the respondent authorities. As transpiring from the petition itself, the lands in question bearing Revenue Survey No. 175, 176 and 181 were covered under the draft Town Planning Scheme No. 7, and the name of the Government was entered in the record of the said scheme in respect of Final Plot No. 37 + 46 against the original Plot No. 37 (Revenue Survey No. 175), original Plot No. 38 (Revenue Survey No. 176), and original Plot No. 46 (Revenue Survey No. 181). The draft Town Planning Scheme No. 7 was sanctioned by the State Government vide the notification dated 20.12.2010 and the Town Planning Officer was appointed by the State Government under Section 50 of the said Act for carrying out the duties as contemplated in Section 51 thereof. There is nothing on record to suggest that the names of Page 19 of 24 C/SCA/17126/2015 CAV JUDGMENT any of the petitioners were ever entered in the revenue record prior to sanctioning of draft Town Planning Scheme or even thereafter. Though specific query was put by the Court to the learned advocate for the petitioners as regards the locus standi of the petitioners to file the petition, he had failed to answer the same.
19. It is further pertinent to note that the petitioners have filed the petition seeking cancellation of the development permission issued in respect of the lands bearing Survey No. 175, 176 and 181 (Final Plot No. 37 + 46) allegedly granted in violation of the said Act, however, neither the said development permission sought to be cancelled, was produced along with the petition nor any averment was made in the petition as to in whose favour the said permission was granted. The respondent No. 9 has stated that the development permission was granted on 26.08.2014 in favour of the respondent No. 9 in respect of Survey Nos. 406/2/1, 398/1, 184 and 392, which were given Final Plots Nos. 56, 95, 104, 128/1 under the Town Planning Scheme No. 7. The said lands had nothing to do with the lands in question i.e. Final Plot Nos. 37 and 46, which according to the petitioners were originally allotted to the "Chamar" community, and subsequently were shown in the name of the Government.
Page 20 of 24 C/SCA/17126/2015 CAV JUDGMENT20. The respondent No. 9 has categorically filed the affidavit-in-reply contending inter alia that he had nothing to do with the lands mentioned in the petition, and that the construction was put up on the lands in respect of which the said permission was granted by the respondent authorities on 26.08.2014, and revised on 09.12.2014. Not only that the respondent No. 9 had also filed further affidavit stating inter alia that after the sanctioning of preliminary Town Planning Scheme, the respondent No. 9 had sought revised development permission from GUDA after making payment of requisite fees, and that the competent authority after following the procedure had granted the revised development permissible in October, 2017. Under the circumstances, the development permission, which was sought to be challenged by the petitioners in both the petitions, allegedly in favour of the respondent No. 9 had already stood revised, apart from the fact that the said permission was in respect of some other lands belonging to the respondent No. 9 and not in respect of the lands as mentioned in the petitions.
21. The petitioner Revaben of Special Civil Application No. 7709 of 2016 has also made absolutely vague and casual statements in her petition challenging the development permission dated 09.12.2014 granted to the respondent No. 9 Page 21 of 24 C/SCA/17126/2015 CAV JUDGMENT in respect of the lands bearing Survey Nos. 392, 398/1, 406/2/1 and 184 which were given Original Plot Nos. 95, 104, 128/1 and 56, reconstituted as Final Plot Nos. 95, 104, 128/1 and 56. The said lands had nothing to do with the lands in respect of which she claims ownership.
22. The second prayer sought in the petition, is for demolition of the construction on the lands in question on the ground that it was made de hors the provisions contained in the said Act and in breach of the order dated 15.12.2010 passed by the High Court. Now, the said order dated 15.12.2010 appears to have been passed in Civil Application No. 6605 of 2010 in Second Appeal No. 121 of 2010 filed by the respondent No. 10- Dineshbhai Dhulabhai Parmar and Others against the respondent No. 8 Revaben Chauhan, wherein the Court had directed the parties to maintain status-quo with regards to the land, which was the subject matter in the said Second Appeal. Neither any of the petitioners nor the respondent No. 9 who has allegedly put up construction on the lands in question, are parties in the said Second Appeal. Learned advocate Mr. Kaushal Pandya for the petitioners has miserably failed to point out as to how the said order dated 15.12.2010 would be binding to the respondent No. 9, who was allegedly making construction on the lands which were different from the lands in question, and on which Page 22 of 24 C/SCA/17126/2015 CAV JUDGMENT alleged construction was being carried out as per the revised development permission granted by the competent authority.
23. Further, the third prayer sought in the petition is to allot the final plots as per the revenue records by making appropriate changes in form 'F' prepared under the Town Planning Scheme No. 7. The Court is at loss to comprehend as to how such relief could be prayed for by the petitioners without any basis or foundation. It is not the case of the petitioners that the Town Planning Officer while subdividing the town planning scheme into preliminary scheme and final scheme, had not given the opportunity of hearing to the affected persons, nor the petitioners have averred that they were the affected persons under the scheme, or were denied the opportunity of hearing as contemplated under the said Act. It is also pertinent to note that pending the petition, the scheme in question has become final and become part of the Act as per Section 65(3) of the said Act. In absence of assertion of any legal or statutory right, or of violation or infringement of such right, such a vague relief sought in the petition to allot the final plots as per the revenue records by making appropriate change in form 'F' prepared under the Town Planning Scheme No. 7 could not be granted.
Page 23 of 24 C/SCA/17126/2015 CAV JUDGMENT24. In that view of the matter, both the petitions Special Civil Application No. 17126 of 2015 and Special Civil Application No. 7709 of 2016 being absolutely devoid of merits, deserve to be dismissed and are accordingly dismissed. Notices in both the petitions are discharged. Interim relief, if any, stands vacated forthwith.
(BELA M. TRIVEDI, J.) Amar Page 24 of 24