Gujarat High Court
Chairman Kaushik Balwantrai Bhunotar ... vs Ahmedabad Municipal Corporation on 7 March, 2025
NEUTRAL CITATION
C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025
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Reserved On : 28.02.2025
Pronounced On : 07/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4882 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4882 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
No
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CHAIRMAN KAUSHIK BALWANTRAI BHUNOTAR OF GEETA NAGAR CO-
OPERATIVE HOUSING SOCIETY LIMITED & ANR.
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR KV SHELAT(834) for the Appellant(s) No. 1,2
MR. PRASHANT G. DESAI, SENIOR ADVOCATE WITH MS. VRUNDA C
SHAH(6702) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
[1.] The present appeal is preferred by the original plaintiff- Geeta Nagar Co-operative Housing Society Limited (henceforth, "the society") through its Chairman, under Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (henceforth, "the Code, 1908") being aggrieved and dissatisfied with the judgment and decree dated Page 1 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined 25.01.2023 passed by learned City Civil Court at Ahmedabad in Civil Suit No.57 of 2023 (for short, "the impugned judgment and order"). By the said impugned judgment and order, the learned Judge has rejected the plaint by suo moto invoking the powers conferred under Order VII Rule 11 (d) read with Section 151 of the Code of Civil Procedure, 1908, in light of the judgment of the Hon'ble Supreme Court in the case of T. Arivandandam vs T. V. Satyapal & Another reported in 1977 (4) SCC 467. By the said impugned judgment and order, the learned Judge has also ordered costs of Rs.5,000/- to the plaintiff towards the valuable time of the Court being consumed, to be deposited with the Legal Services Authorities, City Civil Court, Ahmedabad.
[2.] In order to appreciate the controversy involved, it would be appropriate to consider the case of the plaintiff as averred in the plaint in Civil Suit No.57 of 2023, summarized as under:
[2.1] The plaintiff-society is a Co-operative Housing Society incorporated and registered under the Gujarat Co-operative Societies Act, 1961. The land bearing survey no.289/1 and 290/1 of village- Rakhial was purchased by the plaintiff- society by registered sale deed after obtaining requisite permission from the competent authority under Section 63 of the Bombay Tenancy and Agricultural Lands Act, Page 2 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined 1948. The necessary permission for non-agricultural use for the purpose of residential use of the entire land admeasuring 11837 sq. mtrs. was applied for before the District Development Officer, Ahmedabad. Such permission was granted by order dated 17.10.1978 by the concerned Competent Officer. Thereafter, the building development permission was obtained from the concerned District Panchayat in respect of land bearing survey no.290/1. It is the case of the plaintiff that pursuant to the inclusion of the aforesaid area within the limits of the Ahmedabad Municipal Corporation, the development permission from the Corporation was obtained on 26.02.1991. [2.2] It is the case of the plaintiff that the Town Planning Scheme No.1-Nikol-Rakhial was introduced in the aforesaid part of the city of Ahmedabad. On 08.03.1991, the Town Planning Officer informed to the plaintiff- society about the re-constitution of original plot no.152 admeasuring 10329 sq. mtrs. of revenue survey no.289/1/ p and 4956 sq. mtrs of original plot no. 154/p from original survey no.290/1 part of it was earmarked. The plaintiff- society was to be given final plot no.170 admeasuring 8303 sq. mtrs. The plaintiff- society had, therefore, raised objection on 12.06.1991 thereby inviting attention of the Town Planning Officer about the sanction plan being approved by the concerned District Panchyat. Despite the aforesaid Page 3 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined objections, town planning scheme was framed whereby final plot No.173 was earmarked as a reserved plot, which was forming part of the original plot of society, whereas the society was given final plot no.170.
[2.3] The plaintiff-society was, therefore, constrained to approach the Ahmedabad Municipal Corporation as well as the State Government praying for variation of the town planning scheme by presenting an application dated 11.10.2000. The prayer was made to de- reserve the part of final plot no.173 admeasuring 2444 sq. mtrs. and to hand over the aforesaid land back to the society. The Town Planning Committee and the Ahmedabad Municipal Corporation finally passed a resolution No.516 dated 11.10.2000, whereby the Corporation had recommended variation of the Town Planning Scheme by considering the fact that the society consists of members who belong to the SEBC category and were holding a sanction plan for final plot no.170, and therefore, demarcating the area of final plot no.173 from final plot no.170 was not advisable. [2.4] It is the case of the plaintiff that on 24.10.2000, the Chief Town Planner gave permission for variation of the scheme since carving out of final plot no.173 from plot no.170 would create great hardship to the society and its members, and therefore, treating it as Page 4 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined an error apparent in framing such scheme, the society could not be deprived of the area reserved in the form of final plot no.173 Part-I. It is the case of the plaintiff that on 24.04.2003, the Town Planning Committee passed resolution no.11, recommending lifting of reservation and variation of the town planning scheme. The State Government vide communication dated 25.06.2003, addressed a letter to the Ahmedabad Municipal Commissioner of Ahmedabad Municipal Corporation, holding the details of the plan showing the site of variation of town planning scheme and to remove the reservation in relation to final plot no.173 Part 1 by the Ahmedabad Municipal Corporation general body resolution no. 223, dated 22.07.2003, the Ahmedabad Municipal Corporation resolved that the Chief Town Planner of the State Government, by its letter dated 24.10.2000, had given the permission to vary the scheme, and therefore, the Ahmedabad Municipal Corporation has also given permission under Section 41 (1) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter be referred as, "the Act of 1976") to declare its intention of first varied scheme both by the Town Planning Committee and General body of Ahmedabad Municipal Corporation, in view of permission as reflected in resolution no. 223. However, since there was some delay on the part of the Corporation to proceed further with the draft first varied town planning scheme, the plaintiff- Page 5 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025
NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined society had approached this Court by filing writ petition being Special Civil Application No. 10845 of 2003.
[2.5] After considering the submissions made by the learned advocates for the respective parties, this Court noticed that the Town Planning Committee had already passed a resolution on 10.10.2000, and even the Municipal Commissioner had taken a decision on 20.10.2000 to vary the scheme with regard to the land in question with the concurrence of the Chief Town Planner of the State Government on 24.10.2000. Thus, the draft first varied town planning scheme under Section 41 of Act of 1976 was to proceed, in view of resolution no. 52 passed by the General body of Ahmedabad Municipal Corporation. This court, therefore, by order dated 13.08.2004, had directed the State Government, the Ahmedabad Municipal Corporation, the town planning officer as well as appropriate authorities, to complete such proceedings to vary the town planning scheme with regard to the de-reservation of final plot no.173 and to continue to be in holding up society as per the original development permission for its use as an open common plot for its members. This Court also issued further writ that such town planning scheme be varied within a period of six months and till the scheme is varied, the parties were directed to maintain status quo, and the petition was, Page 6 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined therefore, disposed of in favour of the plaintiff society.
[2.6] It is the case of the plaintiff that the aforesaid directions of this High Court had attained finality as the same was not set aside or challenged before higher forum. The plaintiff has further averred that another writ petition being Special Civil Application No. 12670 of 2012 was preferred before this Court seeking implementation of variation of the town planning scheme, which is pending consideration. The plaintiff, thereafter, in the month of August-2022, had applied for certified copies of the documents purporting to be a whole document without consideration by the so-called power of attorney Hiral Builders/plaintiff society executed in favour of their son and relatives Mr. Vikas Ashokbhai Desai, and Mr. Yatin Khodabhai Desai, had approached the court seeking declaration as to ownership of the plaintiff's society to treat it as null and void, the document being forged by way of Civil Suit No.18 of 2023. It is further contended that though the order of status quo was to be maintained till the scheme was to be varied, which had all throughout remained in force during these years. Neither of the parties have any legal right to change the status quo as to the title and possession of the subject plot.
[2.7] It is the case of the plaintiff that the Ahmedabad Page 7 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Municipal Corporation has not issued any notice under Section 67 and/ or Section 68 read with Rule 33 of the Act of 1976 and the Rules framed thereunder. The plaintiff, apprehending its forcible dis- possession at the hands of the Corporation, had served legal notice on 28.12.2022. It is their specific case that the Deputy Municipal Commissioner of the Corporation had visited the plaintiff- society as they were planning to take away the possession of the reserved plot of final plot no.173, and therefore, the cause of action arose for the plaintiff- society to seek appropriate reliefs by preferring a civil suit before the competent forum. The plaintiffs have, therefore, approached before the City Civil Court at Ahmedabad by filing a civil suit, which was registered as Civil Suit No. 57 of 2023 on 13.01.2023. The original plaintiffs have prayed for the following reliefs:
"(a) Be pleased to declare that defendant have no right to take possession of the subject land of the plaintiff society in view of the directions of the Hon'ble High Court giving prohibitory and directory orders and also contrary to Babulal's Case reported in AIR 1985 SC 613.
(b) Be pleased to declare that the plaintiff society continues to be the owner of the subject land of OP 152 of survey no. 289/1/p and OP 154/p of Page 8 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Original Survey no. 290/1, FP 173/Part I of TP Scheme no.1 Nikol Rakhial, till variation as directed.
(c) Be pleased to issue a permanent injunction restraining the defendants, their agents, servants from entering in the subject property of the plaintiff and the parties be directed to maintain status quo with regard to the title, nature and possession of the suit property.
(d) Be pleased to pass other and further order (s) as may required in the circumstances of the case in the interest of justice."
[3.] The matter was placed before the Auxiliary Chamber Judge, Court No.25, City Civil Court Ahmedabad, for preliminary hearing. Noticing the averments made in the plaint and the cause of action pleaded as against the relief sought for in the suit, the learned Judge arrived at a finding that the town planning scheme had attained finality, and is not challenged by the plaintiff. Thus, the steps taken by the Corporation to implement the town planning scheme, cannot be challenged by filing a Civil Suit as per Section 105 of the Town Planning Act. The learned Judge, therefore, arrived at a conclusion Page 9 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined that the suit was not maintainable.
[4.] As regards the arguments made by the plaintiffs about the status quo order in force, the learned Judge, upon perusal of the order dated 30.03.2005 passed in Special Civil Application No 10845 of 2003, held that there was no order of status quo in existence with regard to the subject land. The learned Judge also noted that the town planning scheme had attained finality way back in the year 1991. The writ petition preferred by the plaintiff- society of 2003 was disposed of, whereas the present suit was preferred in the year 2023, whereby indirectly the society intends to challenge the action of the respondent Corporation of implementing the town planning scheme. Thus, the learned Judge arrived at a conclusion that the suit was apparently time-barred.
[5.] According to the learned Judge, the continuation of possession over the subject plot is nothing but an encroachment, in view of the judgment of the High Court in the case of Sheth Jamnabhai Baghubhai & 5 other (s) vs. Ahmedabad Municipal Corporation (R/Letters Patent Appeal No.1958 of 2017). The learned Judge, therefore, applying the principles laid down by the Hon'ble Supreme Court in the case of T. Arivandandam (supra), arrived at a conclusion that the suit is not maintainable, and by Page 10 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined invoking the powers conferred under Order VII Rule 11 (d) read with Section 151 of the Code of Civil Procedure, rejected the plaint with costs to be borne by the plaintiff. Hence, the present appeal is preferred at the instance of the original plaintiff society. [6.] The present appeal was preferred along with application for delay condonation, whereby upon notice being issued by this Court, and after hearing the learned counsels appearing for the respective parties, by order dated 02.11.2023, had condoned delay of 46 days caused in filing the present appeal. Thereafter, the matter was adjourned from time to time. With the consent of learned advocates appearing for the respective parties, the matter was finally heard at the admission stage, and upon conclusion of arguments, the respective parties were permitted to submit their written submissions. The matter was, thereafter, reserved for orders. [7.] Heard Mr. K. V. Shelat, learned advocate on record for the appellants, and senior advocate Mr. Prashant G. Desai appearing with Ms. Vrunda Shah, learned advocate on record for the respondent Corporation.
[8.] Learned advocate for the appellants has assailed the impugned order of the trial court on the ground that the learned Page 11 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Judge was not justified in suo moto invoking the powers conferred under Order VII, Rule 11(d) of the Code, in the facts of the case, without even issuing the notice upon the respondent Corporation. The learned Judge has failed to appreciate that the suit was filed for declaration and permanent injunction against the respondent Corporation under Sections 34 and 38(3) of the Specific Relief Act, 1963. The cause of action arose for the original plaintiff to approach the competent court on apprehension that the respondent Corporation, without following due procedure prescribed under the Town Planning Act by issuing notice under Section 68 read with Rule 33 of the Rules framed thereunder, would forcibly take away the possession of the subject plot. The learned Judge failed to appreciate that wide jurisdiction has been conferred upon the civil courts under Section 9 of the Code of Civil Procedure, 1908. As regards the findings and the reasons assigned by the learned Judge with regard to the civil suit being barred in view of Section 105 of the Town Planning Act is concerned, it was submitted that, looking to the specific prayer sought for seeking protection of possession, and there being no challenge made to the Town Planning Scheme, the learned advocate has submitted that when a specific pleading about no notice under Section 68 read with Rule 33 of the Rules framed thereunder, being served, there was no occasion for the learned Judge to apply Section Page 12 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined 105 of the Town Planning Act.
[8.1] According to the learned advocate, the action of the respondent Corporation to forcibly dispossess the society from the possession of the subject plot without following due procedure of law envisaged under Section 68 of the Act read with Rule 33 of the Rules framed thereunder, cannot be treated as a bona fide action of the officers acting in discharge of their duties prescribed under the Act. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Babubhai & Co. & Ors vs State Of Gujarat & Ors reported in AIR 1985 SC 613, which has been consistently followed by this Court. It was further submitted that failure on the part of the officers of the respondent Corporation without issuing notice under Sections 67 and/or 68 of the Act read with Rule 33 of the Rules framed thereunder, is in violation of principles of natural justice inasmuch as no opportunity of raising objections or personal hearing is extended. The attention of this Court was also invited to the legal notice dated 28.12.2022, addressed to the respondent Corporation, thereby cautioning the respondent about the order passed by this Court in Special Civil Application No. 10845 of 2003. [8.2] It was further pointed out that no speaking order has been passed on such representation cum objection till date by the Page 13 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined respondent Corporation. It was, therefore, submitted that such action of the officers of the respondent Corporation cannot get the benefit of umbrella protection provided under Section 105 of the Act. At this stage, the learned advocate for the appellants has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Jaswant Singh Mathura Singh And Anr vs Ahmedabad Municipal Corporation And Ors. reported in 1991 (1) SCC 362, wherein the Hon'ble Supreme Court held that in absence of observations of mandatory notices under the Act, the concerned town planning scheme would be a nullity and cannot be acted upon. In the facts of the case, the Hon'ble Supreme Court directed the Corporation to provide alternative accommodation of similar size. [8.3] As regards the findings assigned by the learned Judge about the town planning scheme having attained finality and being indirectly sought to be challenged by way of the present suit, the learned advocate has submitted that the learned Judge failed to notice that it was pointed out in the pleadings that a substantive petition, being Special Civil Application No. 12670 of 2012, is preferred by the plaintiff- society, which is pending consideration. The trial court's attention was invited to the pleadings made in the plaint, whereby it is the specific case of the plaintiff that, by virtue of the Page 14 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined order dated 13.08.2004, passed by the learned Single Judge of this Court in Special Civil Application No. 10845 of 2003, the order of status quo was to operate till the variation of the scheme is made. It was submitted that the trial court committed a serious error in recording that there was no order of status quo, as such order is in the nature of a writ of mandamus and prohibition and the respondent Corporation had, in fact, acted upon as per the directions, inasmuch as, right from Town Planning Committee to the Standing Committee to the General Board of the Municipal Corporation, with concurrence and sanction of Chief Town Planner of State of Gujarat, it was decided to vary the town planning scheme under Section 70 of the Town Planning Act.
[8.4] The attention of this Court was invited to the resolution which was passed by the Corporation to the effect to de-reserve final plot no. 173(A), by merging it with final plot no. 170, was in the ownership of the plaintiff society. It was, therefore, submitted that the Ahmedabad Municipal Corporation cannot implement the town planning scheme against the spirit of the constitutional writ issued by this Court.
[8.5] Learned advocate had also assailed the findings of the learned Judge holding the suit as not maintainable on the issue of Page 15 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined limitation, by placing reliance on the decision of the Hon'ble Supreme Court in the case of Sri Biswanath Banik and Ors. vs Sulanga Bose and Ors. reported in 2022 (7) SCC 731. It was pointed out that the Hon'ble Supreme Court took note of the pleadings in a suit filed for declaration and permanent injunction, wherein it was specifically pleaded that the plaintiffs are in continuous possession of the suit property and that the cause of action arose on the date on which possession was sought to be disturbed. The Court held that the High Court exceeded its jurisdiction by rejecting the plaint while exercising the powers conferred under Order VII Rule 11(d) of the Code of Civil Procedure. The learned advocate had also relied upon the decision of the Hon'ble Supreme Court in the case of Ram Prakash Gupta vs Rajiv Kumar Gupta & Ors reported in (2007) 10 SCC 59, holding that the rejection of a plaint under Order VII Rule 11(d) of the Code, by reading only few lines and passages while ignoring other relevant paras, is impermissible.
[8.6] The reference was also made to the decision of the Hon'ble Supreme Court in the case of Central Bank of India & Anr. vs. Smt. Prabha Jain & Ors. (delivered in Civil Appeal 1876 of 2016), whereby the Hon'ble Supreme Court held that the bar of jurisdiction of civil court is not to be readily inferred. The burden of proof is Page 16 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined heavily upon the party who asserts that the civil court's jurisdiction is ousted.
[8.7] Apart from the aforesaid decisions, learned advocate for the appellants has also referred to the decision of the Hon'ble Supreme Court in the case of Madhav Prasad Aggarwal & Anr. Vs. Axis Bank Limited & Anr. reported in 2019 (7) SCC 158, wherein the Hon'ble Supreme Court laid down the principles as regard the rejection of plaint in part under Order VII Rule 11(d) of the Code, as not permissible. The learned advocate had also referred to the decision of the Hon'ble Supreme Court in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali reported in 2020 (7) SCC 366, more particularly, the principles laid down in para 23 onwards, holding that the Court must determine when the right to sue first accrued only when cause of action arises. In the case of Daliben Valjibhai & Ors. vs. Prajapati Kodarbhai Kachrabhai reported in 2024 INSC 1049 whereby the Hon'ble Supreme Court has held that the impact of Order VII Rule 11 being a drastic step, the Courts must adhered to the discipline of confining their scrutiny to the averments made in the plaint, and cannot proceed on other aspects of the matter. In other words, the claim of the plaintiff with regard to knowledge of the facts giving rise to the cause of action as pleaded, will have to be accepted Page 17 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined as correct.
[8.8] While referring to the decision of the Hon'ble Supreme Court in the case of P.V. Guru Raj Reddy vs. P. Neeradha Reddy reported in (2015) 8 SCC 331, the learned advocate had submitted that the plaint can be rejected only if the averments made therein ex facie do not disclose a cause of action or on a reading thereon, the suit appears barred under any law.
[8.9] Lastly, the reliance was placed in the case of the Hon'ble Supreme Court in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat reported in (2021) 9 SCC 99, whereby the Hon'ble Supreme Court has held that to reject the plaint on the ground of the suit being barred by law, the Courts are required to confine to the averments made in the plaint, and the defence raised by the defendant in the suit cannot be considered.
[8.10] By making the aforesaid submissions, the learned advocate for the appellants has urged this Court to quash, set aside the impugned order and to remand the matter back for deciding afresh on merits by conducting a substantial trial. [9.] Learned senior advocate Mr. Prashant G. Desai appearing Page 18 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined with Ms. Vrunda Shah, learned advocate on record for the respondent corporation, had vehemently objected to the aforesaid submissions made by the learned advocate for the appellants. Learned senior advocate, at the outset, invited the attention of this Court to the substantive petition being filed by the plaintiff society being Special Civil Application No. 12670 of 2012, seeking similar relief, and has submitted that the present appeal is required to be dismissed solely on the ground of suppression of material facts. Learned senior advocate was permitted to place on record the copy of the aforesaid writ petition preferred by the plaintiff society. [9.1] Learned senior advocate had invited my attention to the relief sought for in the said writ petition, whereby essentially, the prayer is made to vary the scheme and to allot the land as final plot to the petitioner society. As regards the submissions made by the learned advocate for the appellant-plaintiff about the status quo order being in force all throughout these years in view of the order dated 13.08.2004 passed by the learned Single Judge in writ petition being Special Civil Application No. 10845 of 2003, is concerned, learned senior advocate had invited my attention to the paper book produced on record by the appellant society in the present proceedings. It was submitted that the documents starting from serial Page 19 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined no. 13 onwards, which includes the copy of Agenda no.52 dated 22.07.2003, resolution no.223 dated 22.07.2003 approving Town Planning Resolution no.11 dated 24.04.2003 for granting intention to declare under Section 41 of the Town Planning Act for the first varied scheme, the resolution being approved by the Land Commissioner regarding Section 41 of the Town Planning Act dated 11.10.2000, the copy of Town Planning Committee Resolution dated 24.04.2003, the copy of the resolution of the Administrator of the Corporation dated 11.10.2000, the copy of the Town Planning Committee meeting agenda no. dated 24.04.2003, the copy of the government communication dated 10.09.2004 addressed by the Urban Development of the State Government, and the copy of communication dated 13.09.2004 addressed by the Government of Gujarat, are not forming part of the record of the trial court proceedings.
[9.2] According to learned senior advocate, the submission of the learned advocate for the plaintiff society about the status quo order in force, is bereft of any merits, inasmuch as the order dated 13.08.2004, passed by the learned Single Judge in Special Civil Application No. 10845 of 2003, was the subject matter of review, which is produced on record by the original plaintiff before the trial Page 20 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined court. The attention of this court was invited to the order dated 30.03.2005 passed by the learned Single Judge in Miscellaneous Civil Application No.460 of 2005 filed in Special Civil Application No. 10845 of 2003. It was submitted that such application was filed at the instance of the respondent Corporation seeking modification and/or review of the order dated 13.08.2004, as passed in Special Civil Application No. 10845 of 2003. Noticing the stand of the respondent Corporation to reconsider the resolution no. 52, this Court had observed that the earlier order was based on the submissions made by the respective parties, as well as considering the resolution dated 11.10.2000 of the Administrator of the Corporation, as well as resolution no.52 of the General Board of the Corporation, this court had, therefore, not restrained the Corporation from considering resolution no.52 and/or varying the same. The Court had, therefore, clarified that it would be open for the Corporation to act in accordance with law and if permissible under law to vary and/or re- consider resolution no.52. At the same time, the original petitioner i.e. the present appellant society, was permitted to raise contentions before the appropriate forum that it was not open for the Corporation to vary or reconsider their resolution no.52. [9.3] By referring to the aforesaid order, learned senior Page 21 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined advocate had further invited my attention to resolution no.52 dated 22.07.2003, giving approval to resolution no.11 dated 24.04.2003 passed by the Town Planning Committee proposing the first varied scheme in terms of Section 41(1) of the Town Planning Act in respect of subject plot no.173 of Town Planning Scheme Nikol Rakhial. [9.4] According to learned senior advocate, the Administrator of the Ahmedabad Municipal Corporation, one Mr. P.K. Lahri had approved the resolution in terms of the power conferred under Section 7A(1)(2) of the Bombay Provincial Municipal Corporations Act. The same was, thereafter placed before the Town Planning Committee on 24.04.2003, subject to the approval of the Corporation. The proposal was approved by the Committee. The attention of this Court was invited to the decision dated 24.10.2000 passed by the Chief Town Planner, State of Gujarat to proceed with the appropriate proceedings approving the decision of the Corporation for the first varied scheme. It was further pointed out that the Urban Development Department of the State of Gujarat had later on by communication dated 10.09.2004 and 13.09.2004 after taking note of the situation, directed to proceed with the appropriate proceedings. [9.5] According to learned senior advocate, the original proposal dated 21.01.2000 for lifting the reservation of final plat Page 22 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined no.173 by the State Government addressed to the Ahmedabad Municipal Corporation in view of the resolution passed by the Corporation on 11.10.2000, and thereafter, in view of the letter dated 25.02.2005, it was resolved that there was no need for variation of the scheme as suggested previously, and therefore, no further correspondence was necessary. Thus, according to the learned senior advocate, the proposal for variation was suspended in light of the order passed by the State Government on 21.06.2008. The copy of such letter dated 21.06.2008 has been placed for consideration of this Court along with the written submissions. The request of the Corporation for variation of the scheme by letter dated 20.12.2006 was, therefore, suspended in light of the letter dated 28.05.2008, whereby a decision was taken not to initiate the variation of the town planning scheme in the public interest. The copy of such letter dated 28.05.2008 has also been produced on record along with the written submissions.
[9.6] The attention of this Court was invited to the fact that one Jay Khodiyar Dairy had unauthorizedly used the property over the subject plot, and therefore, a notice of eviction had been issued under Section 68 read with Rule 33 of the Town Planning Act and the Rules framed thereunder on 02.05.1997. It was submitted that the Page 23 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined encroachment had been removed and the plot was made free from encumbrances. Under the scheme, the area of original plot no.289/1 and 290 was allotted to the appropriate authority under the scheme i.e. for the benefit of the Ahmedabad Municipal Corporation. The notice dated 02.05.1997 has also been placed on record along with the written submissions.
[9.7] By referring to the aforesaid facts, the learned senior advocate had submitted that the above aspect can be borne out from the record of the subsequent writ petition being Special Civil Application No. 12670 of 2012, whereby a detailed reply has been filed by the respondent Corporation. The learned senior advocate, therefore, submitted that the aforesaid material facts ought to have been pointed out in the plaint. According to him, in order to save the plaint from the rigors of Order VII Rule 11 of the Code of Civil Procedure, the plaintiff had chosen not to clarify the aforesaid aspects in the plaint. However, for the right reasons assigned by the learned Judge, the plaint has ultimately met the fate of rejection under Order VII Rule 11 of the Code of Civil Procedure.
[9.8] Apart from the aforesaid contentions, the learned senior advocate has submitted that no error can be found with the approach of the learned Judge in invoking the powers conferred under Order VII Page 24 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Rule 11 of the Code of Civil Procedure at threshold, without even issuing notice upon the respondent Corporation, essentially, noticing the fact that the town planning scheme had attained finality and the prayers sought were in the nature of a challenge to the town planning scheme.
[9.9] To meet the arguments of the learned advocate for the appellant-plaintiff on the issue of notice under Section 68 of the Town Planning Act read with Rule 33 of the Rules framed thereunder, the learned senior advocate has pointed out that way back in the year 1997, such notice was issued upon the interested persons, which, according to him, amounts to sufficient compliance to enable the Corporation to take over the possession of the land, which otherwise stands reserved as on date. It was further submitted that the judgment of the Hon'ble Supreme Court in the case of Jaswant Singh (supra) would not be applicable in the facts of the present case, as it was in light of the facts under the old Act i.e. prior to the amendment of Rule 21 of the Bombay Town Planning Rules, 1955. Looking to the facts of the said case, the Hon'ble Supreme Court has held that notice was required to be given under the Act. Inviting attention of this Court to the scheme of the Act, learned senior advocate had submitted that once the town planning scheme is sanctioned under sub-section 3 of Page 25 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Section 65 of the Act, it becomes part of the Act. Further, the plot reserved for the Corporation or the authority absolutely vest in the authority free from all encumbrances, in view of Section 67 of the Act. He has, therefore, submitted that the Corporation had become exclusive owner of the reserved plot since 2003, and the plaintiff society, having lost its title in respect of the subject plot, is not entitled to continue in the possession of the subject plot. Even otherwise, the Corporation is under statutory duty to implement the town planning scheme, as held by the Hon'ble Supreme Court in the case of Municipal Corporation For Greater vs Advance Builders (India) Pvt. Ltd. & ors reported in 1972 AIR SC 793. He has, therefore, submitted that the learned Judge has arrived at a right conclusion that a suit seeking relief against the implementation of the town planning scheme, is barred by Section 105 of the Act of 1976. [9.10] He has further submitted that, in fact, no relief seeking protection against taking over of possession by the Corporation can be entertained, who otherwise, has a statutory duty to implement the scheme once being finalized, would be hindered. Learned senior advocate had also supported the findings and the reasons assigned by the learned Judge by holding that the suit was barred by limitation. It was submitted that in the subsequent writ petition being Special Civil Page 26 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Application No. 12670 of 2012, the letter dated 28.05.2008 was placed on record along with the affidavit tendered on 26.10.2015. Since these facts were deliberately suppressed by the plaintiff in the civil suit, this Court may not interfere with the impugned order, which otherwise has rightly been passed by invoking the powers under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure, rejecting the plaint.
[9.11] Apart from the aforesaid contentions, the learned senior advocate had placed reliance upon the following decision in support of his submissions:
"I. Om Aggarwal versus Haryana Financial Corporation reported in (2015) 4 Supreme Court Cases 371, II. Raghwendra Sharan Singh versus Ram Prasanna Singh reported in (2020) 16 Supreme Court Cases 601: 2019 SCC Online 372, III. Mahraj Shri Manvendrasinhji R Jadeja vs. Rajmata Vijaykunverba WD/O Maharaja Mahendrasinhji reported in 1999 (1) GLR 261, 1998 (2) GLH 823 IV. Chandrakant Kantilal Jhaveri and Anr. vs. Page 27 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined MadhuribenGautambhai. and Anr. reported in AIR 2011 GUJARAT 27, V. Vadodara Municipal Corporation vs. Arbuda Ice And Cold Storage reported in (AIR 2021 SC 640:
2020JX(Guj) 761) VI. Amravan Co-operative Housing Societies Limited versus Ahmedabad Urban Development Authorities reported in 2009 (3) GCD 1774." [10.] In rejoinder, learned advocate Mr. K.V. Shelat for the appellant- plaintiff, had reiterated his submissions and had contended that the trial court has committed serious error in not appreciating the scope of Section 9 of the Code in light of Section 34 of the Specific Relief Act, as according to him, the suit for declaration and permanent injunction was maintainable where the officers have not acted in accordance with the provisions of law. Learned advocate for the appellant has pointed out that, except for the alleged notice of 1997, no notice under Section 68 of Town Planning Act, read with Rule 33 of the Rules framed thereunder, issued upon the plaintiff society, has been brought on record for consideration. More particularly, after the order was passed by the learned Single Judge on 13.08.2004, and the subsequent order dated 30.03.2005 passed in Special Civil Application Page 28 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined No.10845 of 2003. The learned advocate had emphasized the fact that the citizens of this country cannot be put to the mercy of the authorities, who act as per their wish and whims by taking different stands at different stages. According to him, all throughout, the Corporation at various stages, had passed resolutions to vary the scheme and looking to the tenor of the order dated 13.08.2004, consensus was prevailing among the parties in this regard. The concurrence was also given by the chief town planner, approving the resolution of the town planning committee, the General Body of the Corporation, to vary the scheme in terms of Section 41(2) of the Town Planning Act. Even otherwise, the aforesaid aspect of the issuance of notice under Section 68 of the Town Planning Act read with Rule 33 of the Rules framed thereunder, cannot be looked into, as it would amount to taking into consideration the material beyond the plaint and any other documents produced on record at the instance of the plaintiff while examining the rejection of the plaint at threshold under Order VII Rule 11(d) of the Code. He has therefore urged this Court to quash and set aside the impugned order and to restore the suit to its original position.
[11.] Learned advocates appearing for the respective parties are extensively heard. I have closely examined the impugned Page 29 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined judgment and order, in light of the submissions made by learned advocates appearing for the respective parties. [12.] The question which falls for consideration by this Court in the present appeal is, "whether the learned Judge committed any error in facts and/or in law by suo moto invoking the powers under Order VII Rule 11(d) of the Code of Civil Procedure for rejecting the plaint, in the facts and circumstances of the case?"
[13.] The bone of contention of the appellant in the present appeal is that, the learned Judge committed error by not appreciating the fact that, though the town planning scheme has attained finality, however, the Corporation being an implementing authority, cannot implement the scheme without issuing notice under Section 68 of the Town Planning Act read with Rule 33 of the Town Planning Rules. As rightly pointed out by the learned advocate for the appellant, the suit is filed seeking declaration and injunction under Sections 34 and 38 of the Specific Relief Act. Section 9 of the Code of Civil Procedure confers plenary jurisdiction upon the civil courts to try all suits of the civil nature except the suits of which their cognizance is either expressly or impliedly barred.
[14.] In view of the judgment of the Hon'ble Supreme Court in Page 30 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined the case of T. Arivandandam (supra), in discharge of judicial duty, dealing with proceedings under Order VII Rule 11 of the Code of Civil Procedure, is not unavoidable. Undoubtedly, judicial time is precious and unnecessary litigation should be minimized. Thus, looking to the scope of Order VII Rule 11 of the Code, as explained in various decisions and the legal principles discernible therein, if the plaint does not disclose the cause of action or is barred by law, the Court can suo moto reject the plaint where the Court notices that the litigation is utterly vexatious and an abuse of process of the Court. At the same time, the Courts are put on guard to exercise such powers sparingly. Such exercise of power has to be examined with the presumption that every allegation in the plaint is true, and the plain reading of the averments made in the plaint and the documents relied upon, if does not disclose the cause of action or being barred by the provisions of law, the Court may proceed to reject the plaint at any stage of the suit either before registering the plaint or after issuing summons to the defendant, or before the conclusion of the trial. (Dahiben vs. Arvindbhai Kalyanji Bhanusali reported in 2020 SCC OnLine 563, para 12.9) [15.] The test for exercising the power under Order VII Rule 11 of the Code as laid down in the case of Dahiben (supra), is that if the Page 31 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined averments made in the plaint are taken in its entirety, in conjunction with the documents relied upon, would the same result into a decree being passed. Taking note of the aforesaid broad legal principles laid down by various decisions of the Hon'ble Supreme Court and applying it in the facts of the case, the learned Judge is within its power to suo moto take cognizance of the pleadings in the plaint and the documents relied upon, to proceed under Order VII Rule 11(d) of the Code, even without issuing summons to the defendants. Essentially, the impugned order is assailed on the ground that the learned Judge committed serious error in recording finding that the town planning scheme itself is not challenged.
[16.] Upon reading the plaint, it is clearly averred that the writ petition being Special Civil Application No. 12670 of 2012 is preferred by the plaintiff society seeking variation in the town planning scheme, and is pending consideration. A bare perusal of Special Civil Application No. 12670 of 2012 indicates that the present plaintiff society has approached this Court in the month of September-2012, seeking issuance of writ of mandamus against the defendant Corporation to comply with the order recorded by this Court in Special Civil Application No. 10845 of 2003. The prayer is also sought to vary the scheme and to allot the subject land as a final plot to the plaintiff Page 32 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined society.
[17.] By way of interim relief, the appropriate directions are sought to place on record the action taken by the defendant Corporation, thereafter, and the communications exchanged between the defendant Corporation and the State Government with regard to variation in the scheme. The contention of the learned advocate for the appellants that the learned Judge having erroneously arrived at a finding that the town planning scheme was not challenged, is misconceived as by way of writ petition being Special Civil Application No. 12670 of 2012, what is prayed for is the variation of the town planning scheme and not the challenge to the town planning scheme itself. Thus, no error can be found with the findings of the learned Judge that the town planning scheme had become final and the town planning scheme was not challenged.
[18.] This brings me to the second limb of the argument of the learned advocate for the appellants that the action taken by the defendant Corporation to implement the town planning scheme without issuance of notice under Section 68 of the Town Planning Act, read with Rule 33 of the Rules framed thereunder, is not in conformity with the provisions of the Act, and therefore, such action of the respondent Corporation, is not protected as per Section 105 of the Page 33 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined Town Planning Act, and the suit has erroneously been held not maintainable. It is evident from the reading of the plaint that a specific averment has been made by the plaintiff society in their cause of action in this regard. It is pleaded that:
"the cause of action also arose when in spite of the said writ petition No. 12670 of 2012 pending before the Hon'ble High Court and on or about 26.12.2022 when the defendant their servants, agents took the possession of the constructed shops of ground floor and first floor by then Municipal Contractor Mr. Deepak Karia being the front portion of the Suit property which was already constructed since more than 15 years back and was in sealed condition and on 28.12.2022 when the defendant, their servants, agents came at the open suit land of the society, with a view to take possession without any issuance of notice under section 67 and/or section 68 Rule 33 of GTP & UD Act without any opportunity of hearing are likely to take law in their hands and in spite of the fact that there is an injunction prohibitory orders of the Hon'ble High Court in Special Civil Application no. 10845 of 2003 in order dated 13.08.2004 directing the Government and Ahmedabad Municipal Corporation implementing authority to maintain status quo with regard to the Suit land and on when the Plaintiff's also immediately served the notice dated 28.12.2022 to the defendant Page 34 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined calling upon them to maintain status quo or not to disturb or change the position which is prevailing at the site/ suit premises of FP no. 173/ Part-I in relation to plaintiff's properties of Survey no. 289/1 plus 290/ p of Geeta Nagar Co-operative Housing Society within the jurisdiction of this Hon'ble Court."
In light of the above stated cause of action when examined in light of the submissions made by the Learned advocate for the Appellants certainly the question arises :
"Whether the non-compliance of the issuance of notice under Section 68 of the 1976 read with Rule 33 of the Rules framed thereunder, would be a relevant factor to be considered in case where the town planning scheme, which has already become final, has not been challenged by the plaintiff?"
Looking at the scheme of the Town Planning Act, at first blush the aforesaid contention of the Learned advocate is appealing, the due compliance of the provisions of issuance of notice under Sections 67 and/or 68 read with Rule 33 of the Rules, cannot be ignored by the authority, even in cases where the town planning scheme has attained finality and is not challenged.
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NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined [19.] Learned advocate for the plaintiff has placed heavy reliance upon the decision of the Honorable Supreme Court in the case of Jaswant Singh (supra), which has been distinguished by the learned Judge by holding that in the said case, the issue of the maintainability of civil suit against the steps taken to implement the town planning scheme, was not the subject matter under consideration.
[20.] Learned senior advocate Mr. Prashant Desai appearing for the respondent Corporation, has on the other hand has pointed out that the said case was under the old Act prior to the amendment of Rule 21 of the Bombay Town Planning Rules, 1955. [21.] Noticing the prayers sought for in the plaint, the learned Judge has observed that the plaintiff has asked for protection against the action taken by the Corporation, which apparently appears from the plaint that said action was to implement the town planning scheme and has therefore, held that the suit is not maintainable, in view of the embargo of Section 105 of the Act of 1976. [22.] It would be appropriate to re-look into the prayers sought for in the plaint, at this stage, as reproduced in Para 8 of this order.
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NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined [23.] The plain reading of the aforesaid prayer clause clearly suggests that the plaintiff society claims to be in possession of the subject land. However, it is also an undisputed fact that the preliminary scheme was sanctioned by the State Government way back on 16.02.1996, and thereafter, the final town planning scheme was approved by the State Government on 15.09.1998. Thus, the subject land bearing final plot no.173 stands reserved to be used for the public purpose, precisely for self or commercial use by the respondent Corporation. By virtue of Section 67, the right, title, and interest of the plaintiff society stand divested qua the subject land, and it stands vested in the respondent Corporation free from all encumbrances.
[24.] In similar sets of circumstances, the law laid down by this Court in the case of Kanjibhai Dahyabhai Malsattar vs. State of Gujarat [2005 (2) GLH 515], deserves mention. The Court held that the issuance of notice under Section 68 of the Act of 1976, read with Rule 33 of the Rules framed thereunder, would be a mere consequential step towards the implementation of the scheme. It has been categorically held therein that at every stage of the draft town planning scheme as well as preliminary town planning scheme, suggestions/objections are invited by giving public notices in the local Page 37 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined newspaper, and thereafter, the scheme is sanctioned by the State Authority, and as such, non-service of individual notice in terms of Section 68 of the Act of 1976, read with Rule 33 of the rules framed thereunder, is of no consequence. It has been further propounded that if the main town planning scheme is not under challenge, then issuance of notice under Section 68 read with Rule 33 of Act of 1976, cannot be said to be illegal, since the same would be in consonance with the purpose of the implementation of the town planning scheme. It would be appropriate to reproduce the relevant observations of this Court, which has also taken into consideration the judgment relied upon by the learned advocate Mr. Shelat appearing for the plaintiff in case of Jaswant Singh (supra). Relevant observations are as under:
"11.1. An identical question, whether the persons affected by the Town Planning Scheme are required to be served with special or individual notice as contemplated under Section 52 of the Act read with Rule 26(2) of the Rules or not and non-service of special or individual notice to the person affected by the Town Planning Scheme would vitiate the Town Planning Scheme or not, came to be considered by the Division Bench of this Court in the case of Chandravadan Chunilal Shah (Supra), and after considering the Judgment of the learned Single Judge of this Court [Coram: N.N. Mathur, J., as he then was] Page 38 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined in the decision of Shilpa Park Housing Society, Surat 1996(2) GLR 707 in which the learned Single Judge relying upon the unreported judgment of the Division Bench of this Court rendered in Special Civil Application No. 1608 of 1979 on 20th April 1992, has held that considering the provisions of Section 52 of the Act read with Rule 26, what is required under Section 52 is giving of a notice to the person affected by the scheme in the form and manner prescribed and the form and the manner for giving notice under Section 52 of the Act is provided in Rule 26 of the Rules of 1979 and Rule 26 of the Rules provides that the notice shall be published in the official gazette and in one or more Gujarati newspaper circulating within the area of the appropriate authority and shall be pasted in a prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer. The Rule further provides that notice shall be in the Form 'H' and considering the aforesaid provision it is held that by not serving a special or individual notice upon the person affected by the Town Planning Scheme the scheme is not vitiated. So far as the reliance placed upon the judgment of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra) is concerned, the same will not be applicable to the facts of the Page 39 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined present case, as the said decision was rendered considering the provisions of the Bombay Town Planning Act and the Rules and the present case is governed by the provisions of the Gujarat Town Planning Act and the Rules thereof, and the provisions under both the Statutes are different. Another Division Bench of this Court has also, while considering the decision of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra), while deciding the Special Civil Application No. 1608 of 1979 and considering the amendment in Bombay Town Planning Rules, more particularly amended Rule 21 which is para materia to the provisions of the Gujarat Town Planning Act and the Rules, i.e., Rule 26, held that the judgment of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra) will not be applicable and individual/special notices are not required to be issued. Under the circumstances, the submission and contention on behalf of the petitioners to the effect that non-service of special or individual notices vitiated the scheme has no substance and the same is required to be rejected. 11.2. It is required to be noted that as such in the present Special Civil Applications, the petitioners have not challenged the Town Planning Scheme which has become final. What is challenged is the notices issued Page 40 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined under Section 68 of the Act read with Rule 33 of the Rules by which the petitioners are called upon to hand over possession of the land which is going under six metres wide road under the finalised Town Planning Scheme. Once the Town Planning Scheme has become final and the land is required for the purpose of six metres wide road under the finalised Town Planning Scheme in absence of challenge to the town planning scheme, the consequences are inevitable. The persons who are in occupation of the land are required to hand over peaceful and vacant possession of the land which is needed for the purpose of implementation of the Town Planning Scheme and the only thing which was required to be done was service of notice as contemplated under Section 68 of the Act read with Rule 33, and such notices are served upon the petitioners. As the notices are in consequence of finalisation of the Town Planning Scheme, the petitioners have no right to continue to be in possession and occupation of the land in question which is required for the purpose of implementation of the Town Planning Scheme, which is not challenged by the petitioners. If for the purpose of implementation of the Town Planning Scheme the notices are issued upon the petitioners as contemplated under Section 68 read with Rule 33 and Page 41 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined the petitioners are called upon to hand over peaceful and vacant possession of the land in question, it cannot be said that the action of the respondents is in any way illegal and/or contrary to the provisions of the Act."
[25.] Having noted the aforesaid legal position, in order to test the argument of the learned advocate for the plaintiff, this Court had called for the papers of the writ petition being Special Civil Application No. 12760 of 2012, pending consideration in light of the arguments canvassed by the learned advocates for the respective parties.
[26.] Mr. Desai, learned senior advocate, through an additional affidavit dated 30.01.2023, filed by the Deputy (TDO) Estate of respondent corporation, has exhibited that no cause of action had arisen for consideration as contended by the plaintiff for approaching the civil court to seek protection of the possession, inasmuch as notice under Section 68 of the Act of 1976 read with Rule 33 of the Rules framed thereunder, has been duly served upon the plaintiff- society and such notices had been, in fact, objected by the plaintiff society by submitting detailed objections. It was further pointed out that the possession of the subject land has also been taken away by the respondent Corporation by following due process of law. It is Page 42 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined apparent from the aforesaid affidavit and the documents relied upon that such facts were brought to the notice of the plaintiff society in the month of January 2023, whereas the present suit has been filed on 13.01.2023. Even assuming, for the sake of argument of the learned advocate for the appellant, that the fact of taking over possession by the Corporation was not in the knowledge of the plaintiff society. However, this Court cannot ignore the fact that the notice under Section 68 of the Town Planning Act read with Rule 33 of the Rules framed thereunder, has been duly served upon the plaintiff society, which has also been objected by the plaintiff society at the relevant stage. In light of the aforesaid legal position, the claim/status of the protection of the plaintiff society qua the subject land, is of an encroacher.
[27.] On the contrary, the plaintiff was under an obligation to disclose the correct facts in the plaint. It is a well-settled law that a person who approaches the Court seeking relief, equitable or otherwise, is under a solemn obligation to correctly point out all material and important facts which have a bearing on the adjudication of the issues raised in the case. The plaintiff owes a duty to the Court to bring out all the facts and desist from suppressing any material fact, which is within his knowledge or which he could have known by Page 43 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined exercising due diligence expected of a person of ordinary prudence. [28.] This reminds me of the relevant observations of the Hon'ble Supreme Court in the case of T. Arivandandam (supra). The Hon'ble Supreme Court has observed and held as under:
"The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and make decree with judicial seals brutum fulmen. The long arm of the law must throttle such, litigative caricatures if the confidence and credibility of the community in the judicature is to survive."
[29.] The Hon'ble Supreme Court in the case of Dalip Singh vs State Of U.P. & Ors reported in 2010 (2) SCC 114, the Hon'ble Supreme Court has held as under:
"In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to Page 44 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
[30.] Noticing the aforesaid observations of the Hon'ble Supreme Court, it is now well established that the litigants, who attempt to pollute the stream of justice or who touch the pure fountains of justice with tainted hands, are not entitled to any relief, interim or final.
[31.] The documents in the nature of of notices under Section 68 of the Gujarat Town Planning and Urban Development Act, 1976 read with Rule 33 of the Rules framed thereunder and the letter dated 02.05.1997 addressed to the plaintiff society by the respondent- Corporation followed by the letter dated 02.06.1998 informing the society about the rejection of their objections and the letter dated 01.08.2002 informing the plaintiff society of taking over the possession of subject land, are the vital documents which ought to have been produced by the plaintiff society in the original proceedings. The non disclosure of these material facts as well as the Page 45 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined production of the aforesaid documents by the plaintiff society suggest that they attempted to create an illusory cause of action to maintain the suit in the eyes of law, which if disclosed the court would have refused to entertain.
[32.] This Court is conscious of the fact that at the stage of Order VII Rule 11 of the Code of Civil Procedure, 1908, the Courts are strictly adhered to confine to the pleadings of the plaint and the documents relied upon by the plaintiff, the Courts are prohibited from traveling beyond the plaint. At the stage of Order VII rule 11, the defence raised by the respondent and the documents produced on record by the respondent, cannot be looked into. However, the documents forming the original record of writ proceedings of the High Court are deemed to be the record of the court and bears evidentiary value. This court is of the view that the plaintiffs were under obligation, in view of Order VI rule 1 of the Code, to plead all relevant facts before the court and to produce the documents in their knowledge. The production of the aforesaid documents contradicts the case pleaded in the plaint.
[33.] For the foregoing reasons, this court is of the view that the plaint is barred by the provisions of section 105 of the Gujarat town Planning and Urban Development Act, 1976 and deserves to be Page 46 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025 NEUTRAL CITATION C/FA/4882/2023 CAV JUDGMENT DATED: 07/03/2025 undefined rejected at the threshold by invoking the provisions of Order VII Rule 11(d) of the Code. The present appeal, therefore, fails, and is hereby dismissed.
[34.] Having held so, this Court noticing the fact that the substantive petition seeking relief of variation of scheme is pending consideration, it is clarified that any observations made hereunder are confined in context of the order under challenge. The parties are liberty to demonstrate their case before the court seized of the matter on merits as may be available in law.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 47 of 47 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:44:30 IST 2025