Gujarat High Court
Harsh Khodidas Korat (Patel) vs State Of Gujarat on 7 October, 2022
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4064 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4067 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4069 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARSH KHODIDAS KORAT (PATEL)
Versus
STATE OF GUJARAT
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Appearance:
MR AR THACKER(888) for the Petitioner(s) No. 1
MS. JYOTI BHATT, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/10/2022
CAV JUDGMENT
1.1 The present petitioners by way of present petitions Page 1 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 under Article 226 of the Constitution of India have challenged the communication dated 15.12.2020 in Special Civil Application No.4064 of 2021, communication dated 22.01.2021 in Special Civil Application No.4067 of 2021 and communication dated 15.12.2020 in Special Civil Application No.4069 of 2021, by the respondent authority. 1.2 In all aforesaid petitions, the date of application is same as 12.06.2020 and since the subject matter of the present petitions and learned advocates appearing for the respective parties are same as well as the reliefs prayed by the respective petitioners are found identical, and therefore, the present petitions are heard together. 1.3 By way of the present petitions, the respective petitioners have challenged the impugned communication of respondent No.4, which as per submissions of petitioners are without any application of mind and contrary to the provisions of The Gujarat Town Planning & Urban Development Act, 1976 (for short "the Act"), whereby permission for approval of development plan is not considered. As per the say of the learned advocate for the respective petitioners, the provisions of Section Page 2 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 29(4) of the Act provides that if the application for approval of development plan is not granted within a period of three months then the applications of respective petitioners are deemed to have been granted, therefore, the present petitions are preferred.
2.1 The brief facts giving rise to the present petition being Special Civil Application No.4064 of 2021 are as follows:
2.1.1 Originally land bearing Survey No.105/1 of Village Vavdi admeasuring 36 acres and 37 Gunthas belongs to Patel Dharamshi Thakarshi Korat (great grandfather of petitioner and grandfather of petitioner's father) with other lands prior to 1947. Further, apart from Survey No.105/1, Patel Dharamshi Thakarshi Korat also owned various other agricultural lands at village Vavdi. Further, by virtue of promulgation, the name of Patel Dharamshi Thakarshi Korat was mutated in the revenue record vide Entry No.14 dated 30.10.1955 and Entry No.130 dated 11.5.1964 for Survey No.105/1 of Village Vavdi admeasuring 36 acres and 37 Gunthas.
Further, Patel Dharamshi Thakarshi Korat had Page 3 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 partitioned the said land bearing Survey No.105/1 admeasuring 36 acres and 37 Gunthas and 18 acres and 19 gunthas was given to his daughter-in-law - the grandmother of petitioner and remaining 18 acres and 18 Gunthas was given to his grandson Khodidas Shivlal (father of petitioner herein) and their names were mutated by Entry No.710. Thereafter, Labhuben Khodidas Korat (Patel) by family arrangement gave land admeasuring 9 acres and 10 Gunthas (37434 sq. mtrs.) to her grandson - Harsh Khodidas Korat, the petitioner herein and his name was mutated in the revenue record vide Entry No.2156 dated 26.2.2002 and for remaining land viz. 9 acres and 9 gunthas (37332 sq. mtrs.), Labhuben Khodidas Korat (Patel) by family arrangement got entered the name of her son Khodidas Shivlal Korat vide Entry No.5980 dated 25.3.2011 and thereafter Labhuben Khodidas Korat (Patel) by family arrangement got entered the names of her 4 daughters, which was mutated in the revenue record vide Entry No.8662 dated 16.12.2015.
2.1.2 Further, Khodidas Shivlal Korat who had got land bearing Survey No.105/1 Paiki admeasuring 18 acres Page 4 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 and 18 Gunthas by family partition, gave land admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) to his wife Chetnaben Khodidas and it was mutated in the revenue record vide Entry No.2157 dated 26.2.2002. Thereafter, Khodidas Shivlal, in his lifetime entered the name of his wife Chetnaben Khodidas in the remaining land admeasuring 9 acres and 9 Gunthas (37332 sq. mtrs.) and it was also mutated in the revenue record vide Entry No.5737 dated 25.10.2010. Further, Chetnaben Khodidas got N.A. permission for her land admeasuring Survey No.105/1 Paiki admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) Further, the present petition is in respect of land admeasuring 9 acres and 9 gunthas (37434 sq. mtrs.) of Survey No.105/1 Paiki 3. 2.2 The brief facts giving rise to the present petition being Special Civil Application No.4069 of 2021 are as follows:
2.2.1 Originally the land bearing Survey No.105/1 Paiki of Village Vavdi admeasuring 36 acres and 37 Gunthas belongs to Patel - Dharamshi Thakarshi Korat (father-in-law of petitioner No.1 and grandfather of Page 5 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 petitioner Nos.2 to 6) with other lands prior to 1947.
Further, apart from Survey No.105/1, Patel Dharamshi Thakarshi Korat also owned various other agricultural lands at Village Vavdi. Further, by virtue of promulgation, the name of Patel Dharamshi Thakarshi Korat was mutated in the revenue record vide Entry No.14 dated 30.10.1955 and Entry No.130 dated 11.5.1964 for Survey No.105/1 of village Vavdi admeasuring 36 acres and 37 Gunthas.
2.2.2 Further, Patel Dharamshi Thakarshi Korat had partitioned the said land bearing Survey No.105/1 admeasuring 36 acres and 37 Gunthas and 18 acres and 19 Gunthas was given to his daughter-in-law - petitioner no.1, remaining 18 acres and 18 gunthas was given to his grandson Khodidas Shivlal (petitioner No.2 herein) and their names were mutated by Entry No.710. Thereafter, petitioner No.1 by family arrangement gave land admeasuring 9 acres and 10 Gunthas (37434 sq. mtrs.) to her grandson - Harsh Khodidas Korat and his name was mutated in the revenue record vide Entry No.2156 dated 26.2.2002 and for remaining land viz., 9 acres and 9 Gunthas (37332 sq. mtrs.), the petitioner Page 6 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 no.1 by family arrangement got entered the name of her son - Khodidas Shivlal Korat vide Entry No.8980 dated 28.3.2011 and thereafter petitioner No.1 by family arrangement got entered the names of her 4 daughters, and was mutated in the revenue record vide Entry No.8662 dated 16.12.2015. Further, Khodidas Shivlal Korat, who had got land bearing Survey No.105/1 Paiki admeasuring 18 acres and 18 gunthas by family partition, gave land admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) to his wife - Chetnaben Khodidas and the same was also mutated in the revenue record vide Entry No.2157 dated 26.2.2002. Thereafter, Khodidas Shivlal, in his lifetime entered the name of his wife - Chetnaben Khodidas in remaining land admeasuring 9 acres and 9 Gunthas (37332 sq. mtrs.) and it was mutated in the revenue record vide Entry No.5737 dated 25.10.2010. Further, Chetnaben Khodidas got N.A. Permission for her land admeasuring Survey No.105/1 Paiki admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.). Therefore, the present petition is in respect of land admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) of Survey No.105/1 Paiki 2.
Page 7 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 2.3 The brief facts giving rise to the present petition being Special Civil Application No.4067 of 2021 are as follows:
2.3.1 Originally land bearing Survey No.105/1 Paiki of village Vavdi admeasuring 36 acres and 37 Gunthas belongs to Patel Dharamshi Thakarshi Korat (grandfather of petitioner no.1) with other lands prior to 1947.
Further, apart from Survey No.105/1, Patel Dharamshi Thakarshi Korat also owned various other agricultural lands at Village Vavdi. Further, by virtue of promulgation, the name of Patel Dharamshi Thakarshi Korat was mutated in the revenue record vide Entry No.14 dated 30.10.1955 and Entry No.130 dated 11.5.1964 for Survey No.105/1 of village Vavdi admeasuring 36 acres and 37 Gunthas.
2.3.2 Further, Patel Dharamshi Thakarshi Korat had partitioned the said land bearing Survey No.105/1 admeasuring 36 acres and 37 Gunthas and 18 acres and 19 gunthas was given to his daughter-in-law - Labhuben Shivialthe mother of petitioner no.1 and remaining 18 acres and 18 gunthas was given to his grandson viz, Page 8 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 Khodidas Shivial (petitioner No.1 herein) and their names were mutated by Entry No.710. Thereafter Labhuben Shivial by family arrangement gave land admeasuring 9 acres and 10 gunthas (37434 sq. mtrs.) to her grandson Harsh Khodidas Korat and his name was mutated in the revenue record vide Entry No.2156 dated 26.2.2002 and for the remaining land viz. 9 acres and 9 gunthas (37332 sq. mtrs.) and Labhuben Khodidas by family arrangement got entered the name of her son Khodidas Shivilal Korat petitioner No.1 vide Entry No.5980 dated 25.3.2011 and thereafter, Labhuben Shivial by family arrangement got entered the names of her 4 daughters which was mutated in the revenue record vide Entry No.8662 dated 16.12.2015.
2.3.3 Further, the petitioner No.1, who had got land bearing Survey No.105/1 Paiki admeasuring 18 acres and 18 gunthas by family partition, gave land admeasuring 9 acres and 9 gunthas (37332 sq. mitre.) to his wife Chetnaben Khodidas petitioner No.2 and the same was mutated in the revenue record vide Entry No.2157 dated 26.2.2002. Thereafter, petitioner no.1 - Khodidas Shivial, in lifetime entered the name of his wife Chetnaben Page 9 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 Khodidas petitioner No.2 in the remaining land admeasuring 9 acres and 9 Gunthas (37332 sq. mtrs.) and the same was also mutated in the revenue record vide Entry No.5737 dated 25.10.2010. Further, the petitioner No.2 - Chetnaben Khodidas got N.A. permission for her land admeasuring Survey No.105/1 Paiki admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.). Therefore, the present petition is in respect of land admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) of Survey No.105/1 Paiki 1.
3. Heard learned advocate Mr. A.R. Thacker for the respective petitioners, learned Assistant Government Pleader Ms. Jyoti Bhatt for the respondent No.1 - State and learned advocate Mr. H.S. Munshaw for the respondent No.3. Today, the present petitions are heard for final disposal.
4.1 Learned advocate Mr. A.R. Thacker for the respective petitioners has submitted that in view of development of the Rajkot City, and in particular, the area where the land in question is situated is under development area, and therefore, the respective Page 10 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 petitioners decided to convert the said agricultural land into non-agriculture land and decided to develop the land by getting the Development Permission. Application for development permission for approval of layout plan is required to be submitted to the Rajkot Municipal Corporation and development permission for approval of layout plan is required to be approved by the concerned authority i.e. Rajkot Municipal Corporation through the Town Planning Department of Rajkot Municipal Corporation. He has submitted that as per the provisions of The Gujarat Town Planning and Urban Development Act, 1976 and the Rules framed thereunder, the application for development permission for approval of layout plan has to be made to the Rajkot Municipal Corporation. He has further submitted that though the activity for passing of development plan and building construction plan etc. has been made online in entire state of Rajkot Municipal Corporation till today; the process for approval of development permission for approval of layout plan is being handled by physical mode only. He has further submitted that in view of the provisions of Section 27 and 28 of The Gujarat Town Planning and Urban Development, 1976, which relate to Page 11 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 grant of permission for development and Section 29 of the Act thereof, deals with grant or refusal of permission. Therefore, he has submitted that respondent corporation is supposed to follow the procedure laid down under Section 27, 28 & 29 of the Act as they are binding provisions on respondent corporation. He has further submitted that in pursuance to the aforesaid provisions, the respective petitioners are intended to develop their agricultural land and to get the development permission, the petitioner made application to the Rajkot Urban Development Authority on 29.11.2019 for issuance of Zoning Certificate and The Junior Town Planner, Rajkot City of Rajkot Urban Development Authority issued letter on 3.12.2019 along with copy of the Zoning Certificate and accordingly, the development plan prepared by the architect, the petitioner submitted their application for the development permission for approval of development plan. He has further submitted that the said plan in fact is submitted in December, 2019 but respondent No.4 did not issue receipt acknowledging the said application upon receipt of the said application as required under Section 29(1) of the Act. He has further submitted that the petitioner Page 12 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 had not heard anything from the office of respondent no.4 up to March, 2020 and thereafter due to nationwide lockdown imposed by the Govt. of India due to pandemic of Covid-19 it was not possible for the petitioner to follow up the matter and upon Government relaxing the lockdown and opening of the Government Offices on being asked, the petitioner has submitted the copies of latest revenue records obtained on 9.5.2020. He has further submitted that under The Town Planning Act, it was duty of the respondent no.4 to issue written acknowledgment of the receipt of the application, verify the application submitted by any person(s) for development permission and thereafter accept the scrutiny fees.
4.2 He has further submitted that after verification of the application for development permission for approval of layout plan and other documents, on 12.06.2020 the concerned officer demanded the scrutiny the fees and the petitioner paid the scrutiny fees Rs.1,12,302/- for grant of development permission and the petitioner deposited the same in the office of the respondent no.4 on 12.6.2020 for which the receipt is also issued by the respondent Page 13 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 No.4. He has further submitted that since the receipt is issued and therefore, under the provisions of Sub-Section (4) of Section 29 of the Act, 1976, if any application has been submitted to the authority under the provisions of Section 27 or Section 28 of the Act, the authority is under obligation to communicate its order to the applicant within three months from the date of receipt of such application and if the authority fails to communicate in connection with development permission its order within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months as per the provision of law/statues. He has further submitted that after submitting the application and making payment of scrutiny fees on 12.6.2020, the petitioner did not hear anything from the Town Planning Department of Rajkot Municipal Corporation of Rajkot Municipal Corporation for very long time and did not raise any query in the application and also did not raise any objection that the application is not as per the provision of with provision of the Gujarat Town Planning Act, and Rules or the provisions of Common G.D.C.R., which is applicable to Page 14 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 the areas of Rajkot Municipal Corporation. However, he has submitted that with malafide intention after long period of more than 6 months to the great shock and surprise of the petitioner, the petitioner received order/communication dated 15.12.2020 of Assistant Town Planner, Rajkot Municipal Corporation informing the petitioner that the land in question of the petitioner is covered under the proposed T.P. Scheme No.25 (Vavdi) for which intention has been declared on 16.6.2020. He has further pointed out that the said letter, the Assistant Town Planner, Rajkot Municipal Corporation has made reference to the petitioner's application as dated 22.06.2020 with malafide intention and therefore, he has submitted that the said communication is arbitrary, discriminatory and with malafide intention. 4.3 He has further submitted that the pursuant to notice issued by this Court, the petitioner as well as respondent No.3 has filed the reply but respondent No.3 have not controverted the averments made in the present petitions. He has further submitted that on the contrary, then respondent has admitted by way of documents submitted before this Hon'ble Court along with affidavit Page 15 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 dated 28.05.2021. He has further submitted that notice of the respondent, which is part of the affidavit in reply indicates that the application of the petitioner was complete and they have accepted the scrutiny fees on 12.06.2020 and issued receipt thereof on 12.06.2020 but due to their lethargy they have inwarded the application on 22.6.2020 for reasons best known to them. He has further submitted that "noting indicate that when application was submitted at time on proposal for TP Scheme therefore, in noting authority mention non-T.P. area". He has further submitted that considering the date of application dated 12.06.2020 no reply is given within three months by respondent authority nor any query raised nd the permission to the petitioner is deemed to have been granted. He has further submitted that the affidavit is silent that why the respective respondent have not given any response to such communication within a period of thee from the date of application made by the present petitioner. He has further submitted that petitioner has specifically averred in para 26 that the application was submitted in December, 2019 and after payment of scrutiny fees as per noting thereof by the respondent, the payment of Page 16 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 scrutiny fees made on 12.06.2020 and therefore, the application is deemed to have been granted under Section 29(4) of the Act. He has further submitted that by referring 29(4) of the Act, the respondent has admitted that on 12.06.2020, the application of the petitioner is accepted and three months would expire in September, 2020 and the respondent have replied on 15.12.2020 and 22.01.2021, and therefore, in view of the provisions of Section 29(4) of the Act, the permission is deemed to have been granted.
4.4 He has further submitted that intention of the legislature to make such type of provisions under the Act as well as in the G.D.C.R. at various stages it is to see that public should not suffer and the authorities will work promptly. He has further submitted that the authority to contend that said is not applicable when the state legislature has enacted such laws. He has further submitted that the respondent has not disclosed the necessary things in the affidavit in reply and has come out with the case that the application is preferred by the petitioner which is inwarded on 22.6.2020 from also, after 90 day, the deeming fiction will come into play. He Page 17 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 has further submitted by pointing out the proposed layout plan that where 40% reservation which is required for proposed T.P. Road is made and therefore, also looking to the affidavit in reply, it is not the case of the respondent that the plan put up by the petitioner is not proper or not in accordance with the G.D.C.R. He has further submitted that in fact in the noting, the plan put up is proper as per law.
4.5 He has further relied upon the judgments of the Hon'ble Apex Court in the cases of (i) Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. Anr. reported in 2003 (2) SCC 111, which pertains to interpretation of provisions of the said Act, (ii) Srinivasa Rao v. Land Tribunal, Sedam reported in 2001 (9) SCC 383, which pertains to issue of deeming fiction (iii) Esha Ekta Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai reported in 2013 (5) SCC 357 (iv) Live Oak Resort (P) Ltd. v. Panchgani Hill Station Municipal Council reported in 2001 (8) SCC 329 (v) State of Haryana & anr. Vs. Hitkari Potteries Ltd. & anr. reported in 2010 (10) SCC 74 (vi) M. Venugopal Vs. Divisional Manager, Life Insurance Corporation of India reported in 1994 (2) SCC Page 18 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 323 (vii) Shree Ram Urban Infrastructure Vs. State of Maharashtra reported in 2019 (20) SCC 228. 4.6 In support of his submissions, he has relied upon the judgments of this Court in the case Simandhar Swami Aradhna Trust versus State of Gujarat & Others of reported in 2016 (4) GLR 3245 and has submitted that the Court has observed in para 12 of that judgment that Section 29(4) of the Act has been considered and it has been held that permission under Section 29(4) is deemed to have been granted. He has further relied upon the judgments of Division Bench of this Court in the cases of (i) Dhanjibhai Tapubhai Patel versus Gujarat Industrial Development Corporation reported in 2020 JX GUJ 235. (ii) Parul University versus Union of India reported in 2017 JX GUJ 50 (iii) Nurbibi Malangbhai Mansuri versus State of Gujarat reported in 2005 (1) GLH (U.J) 5. He has prayed that the present petitions are required to be allowed by considering the abovementioned legal position for each present petitions. 5.1 Per contra, learned advocate Mr. H.S. Munshaw for the respondent Nos.3 & 4 in the respective petitions has Page 19 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 submitted that the present petitioner is taking wrong advantage of the situation by resorting Section 29(4) of the Act by claiming deeming fiction. He has drawn the attention of this Court by affidavit in reply filed by respondent No.4 and has submitted that Rajkot Municipal Corporation has rightly passed the impugned order darted 15.12.2020, which is just and proper and the petitioner is not entitled to any relief in the facts narrated in the present reply. In reply filed by the respondent No.4, he has submitted that Rajkot Municipal Corporation is a statutory body duly constituted under the provisions of Gujarat Provincial Municipal Corporation Act, 1949. He has further submitted that the General Board of Rajkot Municipal Corporation passed a resolution No.12 in its meeting dated 16.06.2020 declaring an intention to prepare Draft Town Planning Scheme No.25 (Vavdi) under the provisions of Section 41(1) of the Act. He has further submitted that agricultural land of the petitioner bearing Revenue Survey No.105/1 Paiki 3 of Village Vavdi, Taluka and District Rajkot, admeasuring 37,332 Sq. Mtrs. as contended by him is covered in part of the Draft Town Planning Scheme No.25. He has further submitted that Page 20 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 subsequent to passing of resolution dated 16.06.2020, the same was published in the Government Gazette as well as local newspapers on 26.06.2020. He has further submitted that respondent No.1 was also addressed a letter dated 02.07.2020 by the Municipal Commissioner, Rajkot Municipal Corporation informing about the intention declared by Rajkot Municipal Corporation in its meeting dated 16.06.2020 for preparing Draft Town Planning Scheme No.25 (Vavdi) as well as publication of the same in Government Gazette as well as newspapers. 5.2 He has further submitted that even the present petitioner was addressed a letter dated 08.12.2020 informing about the date of owners' meeting to be held by the authority for providing information about the intended Draft Town Planning Scheme No.25 of Vavdi. He has further submitted that the General Board passed a Resolution dated 16.06.2020 declaring its intention to prepare a draft Town Planning Scheme No.25 of Vavdi only after consultation with the Chief Town Planner, Gujarat State, Gandhinagar under the provisions of Section 41(1) of the Act and the advertisements were published in the newspapers dated 11.12.2020 inviting Page 21 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 objections and suggestions within a prescribed time limit of 30 days.
5.3 He has further submitted that the petitioner through representative attended the owners' meeting on 15.12.2020 by the respondent No.4. and the petitioner even put forward his objections and suggestions through a letter dated 13.01.2021. The objections and suggestions received from the interested parties were examined and appropriate decision rejecting the same was taken thereafter a Draft Town Planning Scheme No.25 (Vavdi) is forwarded to the respondent No.1 for sanction on 09.03.2021. He has further submitted that the petitioner herein was fully aware about the entire exercise initiated in accordance with the provisions of the Act and has participated in the process and his suggestions and objections submitted in writing are also dealt with at length before the Draft Town Planning Scheme No.25 (Vavdi), which was forwarded to the respondent No.1 on 09.03.2021 by way of filing the prescribed time limit of 9 months.
5.4 He has further submitted that it is case of the Page 22 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 petitioner that as his application for development permission as well as sanction of plans and layouts were submitted and scrutiny fee was also paid on 12.06.2020, and therefore, the petitioner is entitled to the necessary development permission and sanction of plans and layouts, have no bearing. He has further submitted that the say of of the petitioner regarding the payment of scrutiny fees dated 20.06.2022 that and all required documents and the same are inwarded only on 22.06.2020. He has further submitted that intention of preparing of draft Town Planning Scheme No.25 (Vavdi) is declared on 16.06.2020 and therefore, as per the provisions of Section 49(1)(a) of the Act is restricting the development of the land covered under the Town Planning Scheme right from the date of declaration of intention. He has referred the provisions of Section 49(1)
(a) of the Act for drawing attention of this Court. He has further submitted that in other words, the petitioner is not entitled to develop the land and the petitioner is fully aware about the entire factual process, who has tried to mislead the Hon'ble Court by way of twisting the factual background. He has further submitted that the provisions of Sections 26 to 39 of the Act, 1976 Page 23 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 relate to control of development and use of land included in development plans and the same are not applicable in the present case as Draft Development Plan prepared by Rajkot Urban Development Authority is sanctioned by the Respondent No.1 on 27.10.2016 and notification is also issued. He has further submitted that in the present case the petitioner has submitted an application for development permission and sanction of plans and layouts and the same are required to be processed and considered in accordance with the provisions of Rules 6.4, 6.5 and 6.17 of prevailing Common General Development Regulations (G.D.C.R.).
5.5 He has drawn the attention of this Court towards such Rules, which are annexed herewith the reply filed by the respondent corporation. He has further submitted that the petitioner has raised the contention that his application dated 12.06.2020 ought to have been granted as a resolution declaring intention for preparing Draft Town Planning Scheme No.25 (Vavdi) is passed on 16.06.2020 by General Board of Rajkot Municipal Corporation is dehors the facts and material on record. He has further submitted that the contentions raised by Page 24 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 the petitioner for deemed sanction of plans and layouts and grant of development permission on a ground that no decision is taken within the required period of 90 days from submission of application dated 12.06.2020 has no merits. In view of the provisions of the Act, and view taken by the Hon'ble High Court of Gujarat through catena of decisions that there cannot be a deemed approval in such cases. The Hon'ble Court has also held that such applications are to be decided in accordance with law applicable on the date of which the authority according to restriction is called upon to apply its mind to the prayer of permission of development. 5.6 In support of his contentions, he has relied on the judgment of this Court in the case of (i) Girishbhai Nagjibhai Savaliya versus State of Gujarat rendered in Special Civil Application No.15458 of 2013 (ii) Kiritbhai Manibhai Patel vs. Gate of Gujarat rendered in Letters Patent Appeal No.1228 of 2014 and other connected matters dated 09.01.2015 and has prayed that the case of the petitioner is meritless and is required to be dismissed as the petitioner is trying to mislead the Court and seeking the relief against the settled position Page 25 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 of law.
6. In rejoinder, learned advocate Mr. A.R. Thacker for the petitioner has submitted that the decisions cited by learned advocate Mr. Munshaw in case of Kiritbhai Manibhai Patel (supra), the facts of that case is totally different in this case, the issue is regarding 40% of reservation as per circulation dated 04.12.2012 and in the present case the petitioner has already availed 40% reservation, and has submitted that the said case is not applicable. He has further submitted that in the case of Girishbhai Nagjibhai Savaliya (supra), it is not helpful to the respondent corporation and it is not applicable in the facts of the present case in view of the judgments of Hon'ble Apex Court as well as Co-ordination Bench as facts of this case are totally different and therefore, it is not applicable in the present case.
7. In sir-rejoinder, learned advocate Mr. Munshaw for the respondent Nos.3 & 4 has submitted that the judgments which are cited by the petitioner, one or two judgments pertain to different acts and are not applicable to the facts of the present case and even Page 26 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 judgment, which are cited by learned advocate for the petitioner in supporte of his case are also different with the facts and one or two judgments pertain to the Gujarat Town Planning & Urban Development Act but not applicable in the facts and circumstances of the present case, therefore, he has prayed to dismissed the present petitions.
8.1 I have heard the arguments at length of learned advocates appearing for respective parties. I have gone through the brief notes submitted by learned advocate for the petitioner in all the petitions.
8.2 From the factual aspect, it transpires that the petitioner has paid the scrutiny fee on 12.06.2020. It is not in dispute that the general body has passed the resolution on 16.06.2020 in general board meeting about the Draft of Town Planning Scheme No.25 (Vavdi). It is also not in dispute that the date, which is inward of the said application of the petitioner is mentioned as 22.06.2020 by the respondent authority and the respondent authority is a statutory body, and therefore, there is no reason to disbelieve the certain facts, which Page 27 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 is coming on record on behalf of the respondent authority unless it is proved other way. Now, the contention of the learned advocate for the present petitioner is mainly based on the Section 29(4) of the Act, which is reproduced as under:
"Section 29:-
Grant or refusal of permission. - (1) On receipt of an application under Section 27 or Section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge [and scrutiny fees,] if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing.-
(i) grant the permission with or without any condition; or
(ii) grant the permission, subject to any general or special orders made by the State Government in this behalf; or
(iii) refuse to grant the permission.
(2) Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission Page 28 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal. (3) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations. (4) If the appropriate authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.
(5) If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of Section 27 or Section 28 or of any permission granted under sub-section (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use. (6) Any expenses incurred by the appropriate authority under sub-section (5) shall be a sum due to the appropriate authority under this Act from the person in default." Page 29 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 8.3 Further, it is relevant to note the provisions of Section 41(1) of the Act, which reads as under:
"Section 41:-
Power of appropriate authority to resolve on declaration of intention to make scheme. - (1) Before making any town planning scheme under the provisions of this Act in respect of any area, the appropriate authority in consultation with the Chief Town Planner may, by resolution, declare its intention to make such a scheme in respect of such area."
8.4 Further, it is also relevant to note the provisions of Section 49(1) of the Act, which reads as under:
"Section 49:-
Restrictions on use and development of land after declaration of a scheme. -
(1)
(a) On or after the date on which a draft scheme is published under Section 41, no person shall, within the area included in the scheme, carry out any development unless such person has applied for and obtained the necessary permission for doing so from the appropriate authority in prescribed form [and on payment of such scrutiny fees as may be prescribed by regulations;
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C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
(b) where an application for permission under clause (a) is received by the appropriate authority, it shall send to the applicant a written acknowledgment of its receipt and after making such inquiry as it deems fit and in consultation with the Town Planning Officer, if any, may either grant or refuse such permission or grant it subject to such conditions as it may think fit to impose;
[Provided that any such permission or condition thereto shall be in accordance with the draft Town Planning Scheme sanctioned under sub-section (2) of Section 48 and in line with the notification of the Government while according such sanction.
(c) if the appropriate authority does not communicate its decision to the applicant within three months from the date of acknowledgments of its receipt, such permission shall be deemed to have been granted to the applicant;
(d) if any person contravenes the provisions of clause (a) or of any condition imposed under clause (b), the appropriate authority may direct such person by notice in writing to stop any development in progress, and after making an inquiry in the prescribed manner remove, pull down, or alter any building or other development or restore the land or building in respect of which such contravention is made to its original condition;
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(e) any expenses incurred by the appropriate authority under clause (d) shall be a sum due to it under this Act from the person in default;
(f) the provisions of Section 35 shall so far as may be, apply in relation to the unauthorised development or use of land included in a town planning scheme;
(g) the restrictions imposed by this section shall cease to operate in the event of the State Government refusing to sanction the draft scheme or the preliminary scheme or in the event of the withdrawal of the scheme under Section 66 or in the event of the declaration of intention lapsing under sub-section (3) of Section 42;
(h) any diminution in the value of an original plot occasioned by any contravention of the provisions of clause (a) or of any condition imposed under clause (b) shall, notwithstanding anything contained in Sections 77, 78 and 79 be taken into account in fixing the market value of such plot." 8.5 Now, considering the facts of the present case, it is not in dispute that on 12.06.2020, the application for scrutiny fees is made, which is proceeded on 22.06.2020 and the resolution is passed by Rajkot Municipal Page 32 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 Corporation in the general board meeting on 16.06.2020 for preparing Draft Town Planning Scheme No.25. It also transpires from the record that though some notings are made in favour of the present petitioner at earlier point of time, but the fact remains that the present petitioner was for the process of Town Planning Scheme and the objections are also filed by the present petitioner on 13.01.2021 and the present petitioner had also attended the meeting on 15.12.2020 through its representatives and the objections are examined and the same is rejected and thereafter, the said scheme is forwarded for sanction on 09.03.2021 by respondent corporation. Therefore, it is not in dispute that after resolution is passed by the Rajkot Municipal Corporation dated 16.06.2020, the various processes had been commenced and the present petitioner had participated and the provisions of Section 49(1)(a) of the Act restricts the allotment of the land covered under the Town Planning Scheme right from the date of declaration of intention. It is further relevant to note that the provision of Rules 6.4, 6.5 and 6.17 of the G.D.C.R. extract of which is produced along with the affidavit in reply by the respondent corporation, which also supports Page 33 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 the say of respondent - corporation.
8.6 Further, considering the judgment of this Court in the case of Simandhar Swami Aradhna Trust (supra), which cited by learned advocate Mr. Thacker, which pertains to Bombay Tenancy & Agricultural Land Act, 1948 but there is some reference in para 12 of earlier judgments, wherein the issue pertains to Section 29 of the Act, where the Hon'ble Court has observed that in view of the deeming fiction, if the appropriate authority has failed to communicate its order within a period of three months from the date of receipt of the application, such permission is deemed to have been granted to the applicant.
8.7 It is also relevant to note that the other judgments which are cited by learned advocate Mr. Thacker are on the different facts and provisions of law and it is only for showing that the deeming fiction has given effect in the various facts and circumstances.
8.8 Further, It is also relevant to note in the facts of the present case that the judgment of the Hon'ble Apex Page 34 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 Court in the case of Live Oak Resort (P) Ltd. & Another vs. Panchgani Hill Station Municipal Council and Another reported in 2001 8 SCC 239, which is cited by learned advocate Mr. Thacker, pertains to Town Planning Act whereby learned advocate Mr. Thacker has relied upon para 29 of that judgment, which reads as under:
"29. As regards the issue of deemed sanction, the High court answered it in the negative recording therein that the appellants were refused of any sanction though beyond the period as such deemed sanction would not arise. Unfortunately, we cannot lend our concurrence thereto. Panchgani Municipal Council being a 'C' Class Municipal Council of Maharashtra in its Standardised Buildings Bye- laws, in particular, bye-law 9.2 records that while the authority may sanction or refuse a proposal, there stands an obligation on the part of the authority to communicate the decision and where no orders are communicated within 60 days from the date of submission of the plan either by way of a grant or refusal thereto, the authority shall be deemed to have permitted the proposed construction. In view of our observations noticed hereinbefore, we are not inclined to go into this issue in any detail suffice however to record that the submissions pertaining to deemed sanction has substance and cannot be brushed aside in a summary fashion. Eventual rejection does not have any manner of correlation with Page 35 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 deemed sanction - it is only that expiry of the 60 days that the sanction is deemed to be given, subsequent rejection cannot thus affect any work of construction being declared as unauthorised. The deeming provision saves such a situation. As noticed above, we are not inclined to detain ourselves any further on this score."
However, in the very para, the Hon'bel Supreme Court has observed that eventual rejection does not have any manner of co-relation with deemed sanction and it is only on expiry of 60 days, that sanction is deemed to be given and subsequent rejection cannot affect any work of construction being declared as unauthorized and deeming provisions have such a situation, and therefore, in the present case, the facts are different. Though, the law laid down by the Hon'ble Apex Court is binding on one and all on principle but on facts, that judgment is not helpful to the case of the present petitioner. Therefore, the judgments cited at the Bar are factually not helpful to the case of the present petitioner and more particularly, in view of the provisions of Section 49(1) of the Act.
8.9 Further, in the facts of the present case Page 36 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 considering the judgment of Division Bench of this Court in the case of Kiritbhai Manibhai Patel (supra) cited at the Bar by learned advocate Mr. Munshaw and more particularly para 17, 18 and 20 are relevant and reproduced hereunder for ready reference:
"17. As regards the plea of the appellants that their applications for development permissions are to be decided in accordance with law applicable on the date of their applications, we find that the learned Single Judge has rightly held that the law applicable to the applications is of the day when the applications are decided for grant of permission. Since the learned Single Judge has referred the decision in the case of T. Vijayalakshmi (supra) as regards applicability of law to the application for development permission, we are not repeating the reproduction of the observations made by the Hon'ble Supreme Court in the said decisions. Suffice it to say that if the application for development permission is granted contrary to the requirements of law in existence when the decision is taken on the application for permission, unbalanced situation of unplanned and haphazard development of some land may arise which would not be in accordance with the provision for planned development made in the Town Planning Scheme in offing.
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18. In view of the above and having regard to the provision of subsection (1) of section 29 of the Act, when the appropriate authority is to be satisfied as regards compliance of different aspects in connection with the permission sought for and has discretion to make inquiry as deemed fit, we find that considering the object of the Act for planned development of the city and the development plan having been sanctioned, mere expiry of the period of three months from the date of applications for development permission would not confer any vested right to the appellants for development of their lands as if the permission was granted to them.
19. Section 40 and 41 of the Act read as under:
"40. Making and contents of a town planning scheme.- (1)subject to the provisions of this Act or any other law for the time being in force, the appropriate authority may make one or more town planning schemes for the development area or any part thereof, regard being had to the proposals in the final development plan, if any.
(2) A town planning scheme may be made in accordance with the provisions of this Act in respect of any land which is -
(i) in the course of development;
(ii) likely to be used for residential or commercial or industrial or for building purposes; or
(iii) already built upon.
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C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 Explanation.- For the purpose of this sub-section the expression "land likely to be used for building purposes" shall include any land likely to be used as, or for the purpose of providing, open spaces, roads, streets, parks, pleasure or recreation grounds, parking spaces or for the purpose of executing any work upon or under the land incidental to a town planning scheme, whether in the nature of a building work or not.
(3) A town planning scheme may make provision for any of the following matters, namely-
(a) the laying out or relaying out of land, either vacant or already built upon;
(b) the filling up or reclamation of low-lying, swampy or unhealthy areas, or levelling up of land;
(c) lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications;
(d) the construction, alteration and removal of buildings, bridges and other structures;
(e) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets, green- Page 39 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 belts, dairies, transport facilities, public purposes of all kinds;
(f) drainage, inclusive of sewerage, surface or sub-soil drainage and sewage disposal;
(g) lighting;
(h) water supply;
(i) the preservation of objects of historical or national interest or natural beauty, and of buildings actually used for religious purposes;
(j) the reservation of land to the extent of ten per cent, or such percentage as near thereto as possible of the total area covered under the scheme, for the purpose of providing housing accommodation to the members of socially and economically backward classes of people; (jj) (a) the allotment of land from the total area covered under the scheme, to the extent of.-
(i) fifteen per cent for roads,
(ii) five per cent for parks, play grounds, gardens and open space, Page 40 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
(iii)five per cent for social infrastructure such as school, dispensary, fire brigade, public utility place as earmarked in the Draft Town Planning Scheme, and
(iv) fifteen per cent for sale by appropriate authority for residential, commercial or industrial use depending upon the nature of development;
Provided that the percentage of the allotment of land specified in paragraphs (i) to (iii) may be altered depending upon the nature of development and for the reasons to be recorded in writing;
(b) the proceeds from the sale of land referred to in para (iv) of sub-clause (a) shall be used for the purpose of providing infrastructural facilities;
(c) the land allotted for the purposes referred to in paragraphs (ii) and (iii) of sub-clause (a) shall not be changed by variation of schemes for the purposes other than public purpose;
(k) the imposition of conditions and restrictions in regard to the open space to be maintained around buildings, the percentage of building area for a plot, the member, size, height and character of building allowed in specified areas, the purposes to which buildings or specified areas may or Page 41 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 may not be appropriated, the sub-division of plots, the discontinuance of objectionable uses of lands in any area in specified periods, parking spaces and loading and unloading spaces for any building and the sizes or locations of projections and advertisement signs;
(l) the suspension, so far as may be necessary, for the proper carrying out of the scheme, of any rule, bye-law, regulation, notification or order made or issued under any Act of the State Legislature or any of the Acts which the State Legislature is competent to amend; Provided that any suspension under this clause shall cease to operate in the event of the State Government refusing to sanction the preliminary scheme, or in the event of the withdrawal of the scheme under Section 66, or on the coming into force of the final scheme;
(m) such other matters not inconsistent with the objects of this Act as may be prescribed.
41. Power of appropriate authority to resolve on declaration of intention to make scheme.-
(1) Before making any town planning scheme under the provisions of this Act in respect of any area, the appropriate authority in consultation with the Chief Town Planner may, by resolution, declare its intention to make such a scheme in respect of such area.
Page 42 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 (2) Within twenty-one days from the date of such declaration (hereinafter referred to as the declaration of intention to make scheme), the appropriate authority shall publish it in the prescribed manner and shall despatch a copy thereof along with a plan showing the area which it proposes to include in the town planning scheme to the State Government.
(3) A copy of the plan despatched to the State Government under sub-section (2) shall be open to the inspection of the public during office hours at the office of the appropriate authority."
Considering the ratio laid down by the Division Bench of this Court in the aforesaid judgment, it was specifically held that the development permissions are to be decided in accordance with law applicable on the date of their application and in the present case, the process for Draft Planing Scheme is commence.
8.10 Further, considering the provisions of Section 29(1) of the Act, it is found that when the appropriate authority is satisfied as regards in compliance of different aspects in connection with the permission Page 43 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 sought, it has discretion to make enquiry is deem fit, and the Division Bench of this Court found that the object of the Act for plan development of city and development plan having been sanctioned, mere on expiry of period of three months from the date of applications for development permission, would not confer any vested right to the petitioners for development of their lands as if the permission was granted to them by deeming fiction.
8.11 Further, considering the judgment this Court in the case of Girishbhai Nagjibhai Savaliya versus State of Gujarat rendered in Special Civil Application No.15458 of 2013 cited by learned advocate Mr. Munshaw at the Bar and more particularly para 23 is relevant and reproduced hereunder for ready reference:
23. That along with issues considered in the case of Chairman, Indore Vikas Pradhikaran [supra], the Apex Court also considered and answered that whether application preferred by respondents for seeking permission for development in accordance with law as it existed at the time when application is preferred or at the time when such application Page 44 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 is decided. The Apex Court after considering certain decisions of the Privy Council, in paras 106, 107 and 108 held as under:
"106. The learned counsel would submit that the said direction is not correct as the High Court should have directed the Director to consider the respondents' application in accordance with the law as it existed at the relevant point of time. We do not subscribe to the said view as it is now wellknown that that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned.
107. In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2 All ER 721], the Privy Council considered the said question having regard to the repealing provisions of the Landlord and Tenant Ordinance, 1947 as amended on 94 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating:
"In summary, the application of the second appellant for a rebuilding certificate conferred no Page 45 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 right on him which was preserved after the repeal of Sections 3A to 3E, but merely conferred hope or expectation that the Governor inCouncil would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the GovernorinCouncil.
The repeal disentitled the first appellant from
thereafter issuing any rebuilding certificate
where the matter had been referred by
petition to the GovernorinCouncil but had not
been determined by the Governor."
[See also Lakshmi Amma v. Devassy [1970 KLT 204] The question again came up for consideration in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663], wherein this Court categorically held : [SCC p.680, para 37] "The context in which the respondent Company claims a vested right for sanction and which has Page 46 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfillment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory Page 47 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules.
Besides this, such a settled expectation
or the socalled vested right cannot
be countenanced against public interest and
convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon."
In Union of India v. Indian Charge Chrome [(1999) 7 SCC 314], yet again this Court emphasized : [SCC p.327, para 17] "The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration."
108. In S.B. International Ltd. v. Asstt. Director General of Foreign Trade [(1996) 2 SCC Page 48 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 439], this Court repelled a contention that the authorities cannot take advantage of their own wrong viz. delay in issuing the advance licence, stating : [SCC p.446, para 12] "We have mentioned hereinbefore that issuance of these licences is not a formality nor a mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevant provisions."
[See also Kuldeep Singh v. Govt. NCT of Delhi [(2006) 5 SCC 702]"
The Apex Court in the above paragraphs viz. 106 to 108 clearly held that the application has to be decided in accordance with law applicable on the date on which the authority according to restriction is called upon to apply its mind to the prayer of permission for development. The above view is reiteration of law laid down by the Apex Court in the case of T.Vijayalakshmi [supra] and was held in paras 15 and 18 of the said decision already reproduced in para 49 of the decision in the case of the Chairman, Indore Vikas Pradhikaran [supra]. Therefore, simply by taking recourse of subsection (4) of Section 29 of the Act, 1976 in case if an application preferred seeking permission for development is received by the concerned Page 49 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 authority and no order is passed and communicated to the applicant within 3 months from the receipt of such application, deemed permission be granted, is answered negatively. That law in existence and applicable on the date on which the authority granting such permission apply its mind, is to be made applicable since unless and until the conditions precedent laid down in the statute for a right of its enforcement at several stages stand fulfilled and satisfied, in absence of no such vested right in the facts of theses cases. Therefore, it is held that for application seeking permission for development under Section 27 of the Act, 1976 though received in accordance with law as provided under Section 29 of the Act, 1976 remained undecided or no order is passed within 3 months of the receipt of such application, it cannot be said that deemed permission for development is granted. However, such applications are to be decided as expeditiously as possible and within a reasonable time, depending on the facts and circumstances of each case."
Whereby, in para 23 of the aforesaid judgment, this Court has observed that the application seeking development permission under Section 27 of the Act though received in accordance with law as provided under Section 29 of the Act remained undecided or no order is passed within a period of three months on the Page 50 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 receipt of such application, it cannot be said that deemed permission for development is granted, however, such application are to be decided as expeditiously as possible within reasonable time depending on facts and circumstances of each case, and this observation also supports the case of the respondents. In the present case, the respondent corporation has rejected the application for development permission. 8.12 I found from the materials available on record that the respondent No.4 has rightly rejected the development permission by order dated 15.12.2020, which is applied by the present petitioner and I found that when the respondent corporation has taken the decision after receipt of the application, the process of preparation of the Town Planning Scheme is already in progress and therefore, Section 49(1) of the Act gives the right to the corporation to reject such application and I found that there is no illegality and impropriety committed by corporation at the best it can be said that some lethargy on the part of the respondent corporation but it cannot be said that the impugned decision of the corporation is without any authority or without any basis in law or Page 51 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022 C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022 against the principles of law and I found that the impugned action cannot be considered arbitrary in nature or against the provisions of the law. Therefore, I found that there is no reason to interfere with the impugned decision of the corporation by exercising the discretionary powers conferred under Article 226 of the Constitution of India and the present petitions are meritless and is required to be dismissed.
9. In view of the above observations, the present petitions are dismissed, with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 52 of 52 Downloaded on : Fri Oct 07 21:20:05 IST 2022