Gujarat High Court
Sahjanand Palace Co-Operative Housing ... vs State Of Gujarat on 23 October, 2020
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/LPA/1768/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 2 of 2019
In R/LETTERS PATENT APPEAL NO. 1768 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 13578 of 2019
==========================================================
SAHJANAND PALACE CO-OPERATIVE HOUSING SERVICE SOCIETY LTD.
Versus SHREEYA ATLANTA THRU RAVI JANAKKUMAR BRAHMBHATT ========================================================== Appearance:
MR BM MANGUKIA FOR MR DHARMESH V SHAH for the PETITIONER MR DM DEVNANI, AGP for Respondent No.1 MR SUNIL S JOSHI for the RESPONDENT(s) No.3 MR BHARAT R PANDYA for the RESPONDENT(s) No. 5 and 9 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 23/10/2020 CAV IA ORDER (PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. The present Misc. Civil Application is filed for the purpose of seeking review of an order dated 11.11.2019 passed in Letters Patent Appeal No.1768 of 2019. The application is filed under Order 47 of the Code of Civil Procedure.
2. The background on which the present review application is filed is to the effect that the applicant came to know about the order passed by the Apex Court in case of Rajendrashankar Shukla and Ors. vs. State of Chhatisgadh, reported in 2015 (10) SCC page 4, which has necessitated the applicant to prefer present application and with addition to certain other grounds, the applicant has sought review / recalling of the order stated above.Page 1 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021
C/LPA/1768/2019 IA ORDER
3. When the matter is taken up for hearing, the learned advocate for the applicant moved the draft amendment which was ordered to be carried out and upon such, the learned advocates appearing for the respective parties have presented their case before us and the application was reserved for orders.
4. Mr.B.M. Mangukia, learned advocate appearing on behalf of the applicant has vehemently contended that since serious issues about validity of certain provisions of the Town Planning Act are under challenge and the proceedings are pending before this Court and in that eventuality, if the order under review if allowed to be continued, the same would seriously prejudice the interest of the applicant and with a view to seek review, has also raised multiple contentions, by presenting the same through written submissions. The synopsis of the said written submissions since tendered, the Court would like to quote hereunder :
"(1) The review application is filed for the following points.
(A)By virtue of the 73rdand 74thAmendments in the Constitution of India which has been enforced on and from June 01, 1993; no law which is inconsistent with Part IX and IX-A of the Constitution of India ceased to be in operation after expiration of one year from the date of enforcement of the said amendments. For the reasons best known to the Legislature of the Gujarat State, no Act was amended so as to bring in consonance with the provisions of the Part IX and IX-A of the Constitution of India till 2008. The Gujarat Legislature enacted the Gujarat District Planning Committee Act, 2008 (Act No.11 of 2008) and Gujarat Metropolitan Town Planning Committee Act, 2008 (Act No.18 of 2008). Enactment of the said Act was not brought into force till 2016 i.e. 22.1.2016. It may be noted that process of framing of Rules started in year 2016. Draft Rules were published and the Rules have been framed named and called as Gujarat Metropolitan Town Planning Committee Rules, 2016. Thus, the Rules and Act, though framed and brought into force, have not answered the provisions contained in Article 243-ZF of the Constitution of India. The same has now been answered by enacting Act named and called as Gujarat Local Authorities and Page 2 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER Town Planning Laws (Amendment) Act, 2019 (Gujarat Act No.14 of 2019), which has been brought into force w.e.f. August 19, 2019. It may be noted that by virtue of bringing the amendments in the three Acts, namely Gujarat Metropolitan Town Planning Committee Act, 2008; Gujarat District Town Planning Committee Act, 2008 and Gujarat Urban Development and Town Planning Act, 1976; it appears that attempts have been made by the Gujarat Legislature to bring in conformity with the provisions contained in Part IX and IX-A of the Constitution of India. In the present case, the Town Planning Scheme No.37/A (Thaltej) is framed and sanctioned contrary to Part IX and IX-A of the Constitution of India. Draft Scheme was sanctioned on dtd 5.7.2011(map page no.45). Preliminary Scheme was sanctioned on 8.6.2017(map page no. 44). As per newspaper report, final scheme is sanctioned on around dated 26.12.2019. Therefore, it is an admitted fact that all the processes from framing of the Scheme till its finalization has taken place after 1.6.1994, the day on which it is ultra vires as per the constitutional provisions and the Mandate contained in Part IX and IX-A of the Constitution of India. The ultra vires schemes cannot be enforced. It is settled principle of law that if any Statutes or orders, if ultra vires, even otherwise not challenged as ultra vires, it is the court's duty to see that such Act or Statute is not implemented, if it is so ultra vires.
The Hon'ble Supreme Court of India in case of Rajendrashanker Shukla and others Vs. State of Chhatisgarh reported in 2015 (10) SCC page 400, wherein it is held that any scheme which is framed in non-participation of democratic local authority like district planning committee in compliance of Part IX and IX-A of the Constitution of India, is void ab initio. The Hon'ble Supreme Court also held that the scheme which is framed in contravention of 73rd and 74th Amendments of the Constitution of India is against the constitutional mandate, is impermissible law and cannot sustain. The relevant paras are 7(i), 8, 16, 17, 26, 35. So far issue raised for first time are concerned, observation recorded by the Apex Court in para 28, 29 & 32. (B) It is humbly submitted that there is error by recording in para-14 of the order passed in LPA that development permission dated 27.6.2011 was secured by the appellants even to condition to remove and then moved for regularization; and cost was imposed on the Applicants. In fact, the said development permission reflecting on page no. 49 was secured by the Opponent No. 5 & Others and as per registration certificate reflecting on page 61, the Applicant-1 society was registered on dtd 26.12.2011. i.e. when the said development permission was Page 3 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER secured on dtd 27.6.2011, the Applicant-1 society was not in existence and hence the said fact recorded is erroneous on face of records. Similarly, there is an error in recording that the regularization orders for the said five tenements mentioned in the special condition of the said development permission dtd 27.6.2011 were secured by the applicants; in fact, the said five tenements are not part of the Applicant-1 society. (C) It is humbly submitted that it is further recorded that this, securing conditional development permission, appears to be playing with the authority, which has rightly been appreciated by learned Single Judge and order dated 27.6.2011 was not subject matter of challenge at any point of time. In fact, the Opponent No. 5 & Others secured the said development permission dtd 27.6.2011 with proportionate part of land bearing Final Plot(FP in short) No.2 allotted in lieu of land bearing Survey No. 498/P marked as hash(#) in sanctioned Lay-out Plan (page No. 48) for which NA permission was not secured by the Opponent No. 5 at that time. Subsequently, FP No. 2 was sub-divided into FPNo.2/1, 2/2/1 & 2/2/2; premium was paid, restrictions were removed and NA permission was secured for the land bearing FP No.2/2/1 & 2/2/2, as mentioned by the Opponent No. 4 & 5 in para-6(a) on page No. 180; thereby land bearing FP No. 2 marked with hash (#) in the sanctioned Lay-out plan is regularized. Hence no question for challenge of development permission dated 27.6.2011 by any party arises.
(D) It is humbly submitted that non-submission of order of the previous SCA was considered as suppression of material facts. In fact, filing of SCA 14484 of 2016 and reasons of rejection thereof and filing of SCA 15251 of 2018 were mentioned in para-5.18 & 5.24 of SCA memo of petition. The explanation given in para-2 (d) of LPA memo about para-27 of decision of Hon'ble Apex court in case of K.D. Sharma (supra) is not reflected in LPA order.
(2)The factual aspects of the matter which were not considered by the Ld. Single Judge and by the Opponent No.2 authority are as under.
(A) Sanction of Lay-out plan, development permission for land bearing consolidated Final Plot No.2+6+(12+13)/1, sale & handing over possession of Tenements to the Applicants and common plot, road, main gate to the Applicant No.1 society; during year 2006-2011:
Date Description Pg No. 10/2/2006
1. FP No. 2,6,(12+13)/1 reconstituted by altering F-forms Page 4 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER original plots bearing Survey 125-130 No.497/1,498/P,500/1+2+3, 508/P of Thaltej in making of TP Scheme No.37/A(Thaltej) as per Sec 2(xii), 2(xxii) of the Act.
18/2/2006
2. Lay-out plan, key plan, development permission 46 sanctioned on name of the Opponent No.5 & Ors for construction of 50 residential Tenements proposed on consolidated FP No. 2+6+12+13)/1(referred as "the said Final Plot"
hereinafter) subject to submission NA permission under Sec-65 of Land Revenue Code.
16/2/2008 Sanctioned Lay-out plan was issued for 50 47A residential Tenements with special condition marked on plan as....
"ખાસ શરત: પ્ર.-૪ માં દર્શાવેલ કોમનપ્લોટની માલિકીકબજા સોસા./એસો. નોં. ન થાય ત્યાં સુધી કોમનપ્લોટની માલિકી સત્તામંડળ ખાતેરહેશે"
Accordingly, Possession of common plot-1 & 2 admeasuring 1440.23 & 894.05 Sq.Mtrs.
approved in Lay-out plan was with competent authority, as per provision of GDCR 2006 regulation 2.21. Development permission was granted for 13 Tenements.
47July 2008
3. The Applicant No.1 society members are co- 53-54 owner of land bearing the said Final Plot as 131 Tenements sold by Regd. Sale Deeds, possession handed over to them.
10/3/2008
4. Gujarat Revenue Tribunal imposed Restrictions 267 of Sec-43 of Tenancy Act on land bearing Survey No. 497/1, 498, 508.
27/6/2011
5. Revised Lay-out plan sanctioned on the name of 48 the Opponent No.5 & Ors for 48 residential Tenements; development permission granted for 25 tenements. 49 2011-2014
6. Tenements constructed, sold by Regd. Sale 56-60 Deeds, possession handed over to the 131 Applicant-1 society members who became co- owners of the land bearing the said Final Plot and their names are recorded in AMC records 116-121 & later on mutated in 7/12 also.
Page 5 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021C/LPA/1768/2019 IA ORDER 107 05/7/2011 7. Draft TP Scheme sanctioned by the Opponent 51-52 No.1, FP No. 2, 6, (12+13)/1 marked as de- 45 reserved plots. 26/12/201 8. On registration of Appellant-1 society under 61 Gujarat Co.Op. Society Act,1961 for 1
owners/tenants of tenements built in land including land bearing FP No. 2; ownership rights of common plots-1, 2 sanctioned in Lay- out plan had vested on the Applicant-1 as per provision of regulation 2.21 of GDCR 2006. As sanctioned lay-out plan is deemed registered document as per provision of Section 106(1) of the Act and Section 90(1)(b), 90(2) of the Registration Act, 1908; titles of common plot land are transferred to the Applicant-1 society, hence the Applicant-1 is co-owner/co-occupier of land bearing the said Final Plot.
(B) Sub-division of Final Plot No. 2 during July 2015 without giving notice to the Applicants, who are co-owners/occupiers of it since year 2008:
03/1/2012 TPO published notification for raising 63-64 objections, if any, within 20 days. No objections received by the TPO for sub-division of FP No. 2 within stipulated period.
30/7/2015 TPO made variation in Preliminary Scheme by 44 sub-division of FP No.2; violating various provisions of the Act and Rules made there under & the Opponent No.1 sanctioned it hence there is error, irregularity, informality in Preliminary Scheme, as under.
(a) There is informality in TPO's decision as he proposed 255-258 partition ofFP No.2 on dtd 30/7/2015 jointly allotted in lieu of restricted tenure land bearing Survey No.498 & old tenure land bearing Survey No.497/1 into sub-parts bearing FP No.2/1,2/2/1, 32/2though no prior permission of the collector under Section-43 of Gujarat Tenancy Act 1948 was obtained by the Opponent No.5 for making partitions of restricted tenure land bearing survey no. 498.
Section 43 of the Tenancy Act reads as follows:-
Page 6 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021C/LPA/1768/2019 IA ORDER Restriction on transfers of land purchased or sold under this Act.- (1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I, 32-O, 32U, 43- ID or 88E or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, there shall be partitioned without the previous sanction of the Collector.
(b) There is informality in TPO's decision as he has 63-64 proposed sub-division ofFP No.2 without receiving any objection within the prescribed time limit of 20 days from the date of his gazette notification dtd 3/1/2012; violating TP Rule 26(3).
(c) There is error in TPO's decision evident on face of 44 records as he proposed sub-division of FP No.2 into FP No.2/1, 2/2/1, 32/2.
(d) There is error in TPO's decision as FP No.2 sanctioned as de-reserve plot marked in white color in plan dtd 45 5.7.2011; is reserved for "Sale for Residence" in Preliminary scheme marking it in Yellow color in plan 44 dtd 30.7.2015, violating TP Rule 4.
In reported Judgment Purshottam Co-Op. Housing vs SMC reported in (2002) 2 GLR 1425, thisHon'ble court has held that Town Planning Officer has to pass town planning scheme in the preliminary and final scheme, as it is, as per draft town planning scheme sanctioned by the Government wherein the land in question is de- reserved.
The said act of the Opponents has the effect of depriving the Applicants of their property without authority of law, without allotting another land in lieu of it or without paying any compensation; violating fundamental right under Article 14 & constitutional right under Article 300A, provided by the constitution of India. In case of Sri Nath Educational Society vs State Of U.P. And Others, Hon'ble Allahabad High Court has held that the respondents had neither the power to take possession of the land of the Applicants nor can they interfere with their possession for making construction of the road without acquiring the land. Howsoever laudable object the State may intend to achieve it can neither deprive a Page 7 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER person of his property nor can it interfere with his right save by authority of law. Apart from violation of Article 300A of the Constitution such an action of the State is also violative of Article 14 of the Constitution.
(e) There is informality in TPO's decision of sub-division of 51 FP No.2 as FP No. 2/1 & 32/2 are not in regular shape;
44which violates condition (4) of draft TP Scheme sanction notification.
(f) There is informality in TPO's decision of sub-division of 44 FP No.2, as he has proposed reservation in part of FP No.2 consisting of Common plot-1, internal road & main gate of the Applicant No.1 society, violating GDCR 2006 regulation 2.21, Sec52(1) of the Act and TP Rules 26(3), 26(4).
In WRIT PETITION (PIL) No.347 of 2013, observing provision of GDCR for common plot, this Hon'ble court has held that...
"The common plot shall not be sold to any other person and it shall not be put to any other use, except for the common use of the residents/occupants.
(g) There is irregularity in TPO's decision, as sub-divided part of FP No. 2 admeasuring 2130 Sq.Mtrs. is 45 fraudulently denoted as FP No.32/2 in preliminary scheme plan and sub-divided part of reserve land 264 bearing FP No. 32 admeasuring 2132 along with additional reserve land of 41 Sq.Mtrs. is fraudulently denoted as FP No. 2/2/2 in preliminary scheme plan,without any order/approval of competent authority;
i.e. de-reserved plot is denoted as reserved plot by misrepresentation in violation of Rule 4 and by commission of fraud. And,in decision sheet of FP No. 2/2, sub-divided Final Plots of FP No.2/2 are shown as FP No.2/2/1, 2/2/2; and not 2/2/1, 32/2.
258In case of Civil Appeal No. 8216 and 8217 of 2003 Ram Chandra Singh Vs Savitri Devi & Ors, observing as "misrepresentation amount to fraud", Hon'ble supreme court has held that the orders obtained by commission of fraud are null & void.
(h) There is informality in TPO's decision of sub-division of FP No.2 as he has reconstituted FP No. 2/2/2 in 45 preliminary scheme stage without any provision in the Act. The reconstitution of plots can be done during draft TP Scheme stage only; and hence it violates Sec 45(1) of Page 8 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER the Act.
(i) There is informality in TPO's decision, as he proposed reservation in FP No.2 sanctioned as de-reserved plot in 45 draft TP Scheme, making substantial variation without obtaining prior sanction of the state Government; 44 violating Section 52(1) of the Act, and it is against the ratio laid down by this Hon'ble court in case of Purshottam Co-Op. Housing vs SMC reported in (2002) 2 GLR 1425, "Town Planning Officer has not made any variation with the previous sanction of the State Government nor any notice for hearing has been received by the Applicant. Thus, the Town Planning Officer has to pass town planning scheme in the preliminary and final scheme, as it is, as per the draft town planning scheme which has already been sanctioned by the State Government wherein the land in question is de- reserved".
(j) There is informality in TPO's decision, as the TPO has 45 proposed sub-division of FP No.32 vested on authority 44 without receiving objections; which violates Section 52(1) of the Act and is against the ratio laid down by this Hon'ble court in reported Judgment Chimanlal Estate Owners vs AMC, 1986 (2) GLR 1323,where it was held that....
the Corporation had no authority at law to modify its proposals without inviting objections of the public and, therefore, that particular part of the proposal was bad at law and non est.
(k) There is error informality in TPO's decision as he has allotted Final Plot 2nd time for land bearing S.N.498. As per F-form; FP allotted in lieu of land bearing Survey No. 498 Total area of original plot of Survey No. 498 = 8397 Sq.Mtrs.
Final plot area receivable after 40 % TP Kapat = 5038 Sq.Mtrs.
Proportionate part FP No.2 in allotted 4460 Sq.Mtrs. 125 TP 37/A= 675Sq.Mtrs. 266 FP 74 allotted in TP Scheme 2173 Sq.Mtrs. Page 9 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER No.214(Thaltej) = FP No.2/2/2 allotted in TP 37/A(Thaltej) =
Against allowable 5038 Sq.Mtrs., Total FP allotted=7308 Sq.Mtrs.
(l) The Opponent No.1 erred in sanctioning preliminary 44 scheme as land bearing FP No.32/2 reserved for "Sale for Residence" is not free from all encumbrances, as common plot of the Applicant-1 and construction of five tenements duly regularized under GRUDA 2011 act are existing in it, hence the said land is not free from all encumbrances; which violate Sec 67 of the Act.
(m) The Opponent No.1 is empowered to extend completion 65 period of making of preliminary scheme by not 66 exceeding six months, but the same was extended by one year, three times; thereby repeated errors were 67 committed by the Opponent No.1 in extending completion Period without recording any reasons thereof; violating provision of 1st Proviso of Sec 51 of the Act.
(C) While disposing SCA 14484 of 2016, Ld. Single Judge has recorded that the Applicant-1 society has filed the petition which is a service society and none of its members have raised grievances. In SCA 13578 of 2019 filed by the Applicant-1 society along with its members, even though neither Ld. Single Judge not the Opponent No.2 authority had examined co- ownership rights of the applicants.
(D)Though error, irregularities, informality are quite evident on face of records, the Opponent No.2 erred in deciding our application under Section 70 of the Act while deciding the issues framed by him as described in grounds of the Petition (Page No.15-28); mainly not considering the Applicants as owners/occupiers though the authority himself is collecting Property Tax from the Applicants since more than 8 years as occupiers, by raising Property Tax bills (Page No. 116-121) for Property existing in FP No.2+6+(12+13)/1. He suppressed, (or rupees one lac; whichever is lower), an important part of law (Page No.23, 41) while deciding issue of substantial variation; to mislead one and all that the TPO has not made substantial variation.
Page 10 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021C/LPA/1768/2019 IA ORDER (E) As there is error, irregularity and informality in the sanctioned Preliminary Scheme, this Hon'ble court may be pleased to allow the application in the interest of justice. While deciding the identical matter under Section 70 of the Act, this Hon'ble court in LPA No. 2339 of 2010 has directed to maintain status quo in the property in question observing in Para-12, 16, 17 & 18 as under.
12. Having regard to the rival contentions of the respective parties and having regard to the facts and circumstances of the case, we are of the view that the approach of the State Government is very lackadaisical. As per the provisions of Section 70 of the Act, even if the scheme is finalised, there is power with the authority to consider the matter for variation of the scheme, if the scheme is defective on account an error, irregularity or infirmity. Such power can be exercised upon the application of the appropriate authority or the State Government itself can also consider the matter for variation. It appears that there is an inbuilt mechanism under the Act for considering the question of variation in the preliminary or final scheme on account of an error or irregularity, the court of law may not be required to exercise the power of striking down or setting aside the scheme to that extent and that is the reason why earlier the learned Single Judge rightly directed the appellant - original Applicant to prefer an appropriate application / representation to the State Government to consider the question of variation on the various grounds available to the appellant.
16. We are of the view that in light of settled position of law the communication at page 27, which was the subject matter of challenge in the original writ petition cannot be termed as an order by any stretch of imagination. This aspect has not been considered by the learned Single Judge. In this view of the matter, we are left with no other option but to quash and set aside the order passed by the learned Single Judge and remit the matter to the State Government for fresh consideration with appropriate directions.
17. Under the above circumstances, the following directions shall meet the ends of justice:
Page 11 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021C/LPA/1768/2019 IA ORDER
(a) The State Government shall consider the question of correcting or varying afresh the Town Planning Scheme No.1 (Bil) of VUDA so far as the land of the appellant bearing Block Nos. 466 and 469 are concerned. The State Government shall decide the issue of variation after giving opportunity of hearing to the appellant - original writ petition as well as to the Corporation or any other parties affected thereby and pass appropriate order in accordance with law. Such exercise shall be completed within three months from the date of receipt of order of this Court;
(b) Until the aspect of the variation is decided by the State Government in accordance with law, the status quo qua the present possession of the land in question shall be maintained by the parties.
18. For the reasons indicated above the appeal stands allowed to the aforesaid extent. No cost."
5. As against this, Mr.Sunil Joshi, learned advocate appearing on behalf of respondent No.3 has vehemently opposed this application and has requested that since the review application is meritless, the same be dismissed with costs. According to him, under the guise of this review application, the applicant is trying to make out altogether a new case which looking to the scope of review is impermissible and as such, has requested to dismiss the application. Since the applicant has tendered written submissions, Mr.Joshi, learned advocate, has also though it fit to submit the written submissions on behalf of respondent No.3 which are reproduced hereunder:
"The respondent no.3 herein most respectfully begs to submit its written submissions in the captioned application as under:
1. The captioned review application has been preferred by the applicants herein, inter alia, on the ground that the Town Page 12 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER Planning Scheme No.37/A (Thaltej) is framed and sanctioned contrary to Part-IX and IX-A of the Constitution of India. It is the case of the applicants that by virtue of 73rd and 74th Amendments in the Constitution of India, which has come into effect on and from 1.6.1993, the law, which is inconsistent with Part-IX and IX-A of the Constitution of India, would cease to operate after expiration of one year from the date of enforcement of the said amendments.
2. It is the further case of the applicants that till 2008, the State of Gujarat had not amended the Town Planning Act so as to bring the same in consonance with Part-IX and IX-A of the Constitution of India. Of late, the Gujarat Legislature has enacted the Gujarat District Planning Committee Act, 2008 (Act No.11 of 2008) and Gujarat Metropolitan Town Planning Committee Act, 2008 (Act No.18 of 2008). It is the further case of the applicants that till 22.1.2016, the said Act was not brought into force. It is the further case of the applicants that Rules and the Act, in spite of being framed and brought into effect, have not answered the provisions of Article 243-ZF of the Constitution of India and now, of late, an Act named Gujarat Local Authorities and Town Planning Laws (Amendment) Act, 2019 has been brought into being with effect from 19.8.2019.
3. It has been contended by the applicants that all the process, right from framing of the town planning scheme till its finalisation, has taken place after 1.6.1994 i.e. one year after 73rd and 74th Constitutional Amendments. Therefore, it is contended that the making of Town Planning Scheme in the present case is ultra vires the constitutional provisions contained in Part-IX and IX-A of the Constitution of India and therefore cannot be enforced.
4. It is the further case of the applicants that as per the principles laid down by the Hon'ble Apex Court in the judgment reported in (2015) 10 SCC 400, any scheme framed in non-participation of democratic local authority, i.e. District Planning Committee in compliance of Part-IX and IX-A of the Constitution of India is void ab initio and the scheme, i.e. framed in contravention of 73rd and 74th Amendments of the Constitution of India, is against constitutional mandate and is impermissible in law.Page 13 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021
C/LPA/1768/2019 IA ORDER
5. Respondent No.3 most respectfully submits that so far as the grounds of review which pertain to provisions contained in Part-IX and IX-A of the Constitution of India, are concerned, the applicants are trying to make out a new case in the present review application as the same were not raised and pleaded by the applicants in the first round of litigation, i.e. Special Civil Application No.14484 of 2016, which was dismissed by the learned Single Judge (Coram: Hon'ble Mr. Justice Rajesh H. Shukla) by judgment and order dated 25.07.2017. The applicants challenged the judgment and order passed by the Ld Single Judge in Special Civil Application No.14484 of 2016, by preferring L.P.A. No. 1508 of 2017 and neither in the memo of appeal nor at the time of hearing of the said appeal, any such grounds were ever raised by the applicants. The said LPA was withdrawn by the applicants herein with a view to pursue application/appeal under Section 70 of the Town Planning Act.
6. It is respectfully submitted that an application under Section 70 preferred by the applicants was rejected by the Ahmedabad Municipal Corporation, i.e. respondent No.2 herein by an order dated 17.07.2019 and the said decision, inter alia, was challenged by the applicants by preferring the captioned petition, i.e. Special Civil Application No.13578 of 2019. In the memo of said petition also, the grounds raised in the memo of captioned review application were not forming part of the pleadings. The learned Single Judge, by an order dated 21.10.2019, rejected captioned petition by a well reasoned order.
7. Being aggrieved by the order dated 21.10.2019, as aforesaid, the applicants preferred the captioned LPA being LPA No.1768 of 2019. In the memo of appeal of the captioned LPA also, the applicants did not raise or plead any grounds, which are now sought to be raised by the applicants in the present review application.
8. Thus, in the two rounds of litigation, as aforesaid, on the identical subject matter, which, the applicants carried up to Division Bench of this Hon'ble Court, the applicants, though had sufficient opportunity, did not raise any such grounds, which the applicants, now seek to raise in the present review application. Therefore, the applicants cannot be permitted to make out a new case for the first time in the present review application and the same is outside the scope and ambit the Page 14 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER powers of review of the Hon'ble Court.
9. It is not the case of the applicants that there is an error or a mistake apparent on the face of the record, committed by the Hon'ble Court while rendering the judgment sought to be reviewed and it is also not the case of the applicants that after the passing of the judgment, review is necessitated on account of discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the order was passed. It is respectfully submitted that a particular provision of law or the judgment of the Supreme Court was not brought to the notice of the Hon'ble Court while the Hon'ble Court passed the order, is no ground of review and if the same is permitted to be raised, the same would militate against the principle of finality of litigation.
10. It is respectfully submitted that in the earlier two rounds of litigation, no foundation regarding the factual legal propositions, now sought to be introduced by the applicants under the garb of review application, was laid by the applicants. Therefore, review is not permissible on an altogether new ground and cause of action. The aforesaid ground was very much available to the applicants, when they preferred petition on the earlier occasion. The respondent no.3 seeks to rely upon the principles laid down by the Division Bench of this Hon'ble Court in the judgment reported in 2013(0) GLHEL_HC 229877, wherein, in para 17 thereof, the Hon'ble Court has laid down that it is not permissible in law to make out a new case in review application. Otherwise also, the present review application is also barred by the principles of constructive res judicata.
11. In the present matter, the applicants have come up with a case to the effect that the framing of scheme is ultra vires inasmuch as the same is framed in contravention of the provisions contained in Part-IX and IX-A of the Constitution of India. It is respectfully submitted that the aforesaid case has no legal or factual foundation inasmuch as the applicants have not made any factual assertion that the effect that provisions contained in Part-IX and IX-A of the Constitution of India as well as that of the Gujarat Metropolitan Planning Committees Act, 2008 are applicable to the T.P.Scheme involved in the present matter.
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12. It is respectfully submitted that the applicants are relying upon the principles laid down by the Hon'ble Supreme Court of India in the judgment reported in (2015) 10 SCC 54 in order to contend that any scheme which I framed in contravention of 73rd and 74th Amendments of the Constitution of India is against the constitutional mandate and is impermissible. It is respectfully submitted that the ration laid down in the said judgment is not applicable in the facts of the present case since in the reported decision, the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 were, inter alia, under consideration of the Hon'ble Apex Court and in para 19 and 20 thereof, the following observations are made by the Hon'ble Court.
19. As has been mentioned supra, Respondent 2 RDA was constituted under Section 38 of the 1973 Act. The Town Development Scheme framed by Respondent 2 RDA, however, has to be read in the light of Section 50(4) which provides for the approval of the town development scheme by an appropriate authority which reads as under:
"50. (4) The Town and Country Development Authority shall consider all the objections and suggestions as may be received within the period specified in the notice under sub- section (3) and shall, after giving a reasonable opportunity to such persons affected thereby as are desirous of being heard, or after considering the report of the committee constituted under sub-section (5) approve the draft scheme as published or make such modifications therein as it may deem fit:
Provided that the final publication of such draft scheme shall be notified not later than one year from the date of publication of the draft scheme failing which the draft scheme shall be deemed to have lapsed."
Further, an amendment was made for the State of Chhattisgarh only, with respect to constitution of committee for evaluating reconstitution of plots for the purpose of the town development scheme. The amendment came into force w.e.f. 6-9-2010 which reads as under:
Page 16 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021C/LPA/1768/2019 IA ORDER "50. (5) Where the town development scheme relates to reconstitution of plots, the Town and Country Development Authority shall, notwithstanding anything contained in sub- section (4), constitute a committee consisting of the Chief Executive Officer of the said Authority and to other members of whom one shall be representative of the District Collector, not below the rank of Deputy Collector and the other shall be an officer of the Town and Country Planning Department not below the rank of Deputy Director nominated by the Director of Town and Country Planning for the purpose of hearing objection and suggestions received under sub- section (3)."
(emphasis supplied)
20. Therefore, in the light of the provisions mentioned above if read in harmonious construction, the Chief Executive Officer of Respondent 2 RDA is not permitted to unilaterally prepare a development scheme resulting in reconstitution of land without taking into consideration the opinion and suggestions of the democratically elected bodies such as the District Planning Committee and Officer of the Town and Country Planning Department, as mentioned in the 1973 Act. However, in the present case, as per the evidence on record put before us, the Chief Executive Officer of Respondent 2 RDA formulated the town development scheme without taking the opinion of the local committees which are constitutionally authorised to make suggestions in the matter of town development scheme under the amended provisions of Section 50(5) of the 1973 Act.
13. The provisions contained in Part-IX and IXA of the Constitution of India are aimed at seeing that in the preparation of development plans, there should be a participation of democratically elected local authority and it further mandates to provide for the constitution of such committee at every level of democratically elected local body. Thus, it pertains to participation of such local body insofar as the preparation of Draft Development Plan is concerned. The applicants mainly contend that all the process, right from framing of the scheme till its Page 17 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER finalization, has taken place after 1.6.1994 i.e. one year after 73rd and 74th Constitutional Amendments. Therefore, it is contended that the making of Town Planning Scheme in the present case is ultra vires the constitutional provisions contained in Part-IX and IX-A of the Constitution of India and therefore cannot be enforced.
14. In the case cited at bar by the applicants, the provisions of section 50 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 were, inter alia, under consideration of the Hon'ble Apex Court and the said provisions cast obligation upon the concerned development authority not to prepare a development scheme resulting in reconstitution of land without taking into consideration the opinion and suggestions of the democratically elected bodies such as the District Planning Committee and Officer of the Town and Country Planning Department, as mentioned in the 1973 Act, whereas the provisions contained in Part IX and IX-A of the Constitution Of India provide that in the preparation of development plans, there should be a participation of democratically elected local authority. In the instant case the applicants contend that in the instant case, the town planning scheme is prepared without the consultation of democratically elected bodies such as the Metropolitan/District Planning Committee and therefore the same is ultravirus. So far as the 73rd and 74th constitutional amendments and law enacted by the State of Gujarat pursuant thereto are concerned, the same make it obligatory for the development authority to consult democratically elected bodies such as the Metropolitan/District Planning Committee before preparing Development Plan for the metropolitan area and not the Town Planning Scheme and the grievance of the applicants pertain to the preparation of Town Planning Scheme and not the development Plan. Thus the ratio laid down in the aforesaid judgment is not applicable to the facts of the present case.
15. It is respectfully submitted that neither in the review application nor in the written submissions tendered by the applicants herein, have the applicants come up with the case that the land-in-question/T.P.Scheme falls within the expression 'Metropolitan Area' as defined in Section 2(j) of the Gujarat Metropolitan Planning Committees Act, 2008.
16. The applicants further contend that there is an error in Page 18 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER recording that the development permission dated 27.06.2011 was secured by the applicant by plying with the authority but as a matter of fact said development permission was not obtained by the applicants but the same was obtained by the opponent no.5 and others and therefore no question of applicants' challenging the same would arise.
It is respectfully submitted that the aforesaid observations made in the order sought to be reviewed, had arisen in wake of the contention raised by the applicants in the course of hearing of the captained appeal to the effect that on account of the decision taken by the Town Planning Officer to divide F.P.No.2 into three parts and earmarking one of the parts, as reserved for 'sale for residence' and subsequent sanction of the preliminary scheme, applicants right to have access from the T.P.Road as well as part of the common plot of the applicants is getting affected. But the said contention raised by the applicants was found to be false by the Hon'ble Court in view of the fact that earlier the development permission dated 27.06.2011 granted in respect of the applicants' land, no such road and common plot, as projected by the applicants was made available to the applicants in the lay-out sanctioned pursuant to the said development permission. Therefore subsequent to the said development permissions, on account of decision taken by the T.P.O. of dividing /reconstituting F.P.No.2, no question T.P.Road as well as part of the common plot of the applicants getting affected on account of on account of decision taken by the T.P.O., would arise. Therefore question whether the development permission dated 27.06.2011 was obtained by the applicants or opponent no.5 and others would not be significant.
In view of what has been submitted above, the review application does not merit any consideration of the Hon'ble Court and the same may kindly be dismissed with cost."
6. Mr.Bharat R. Pandya, learned advocate appearing on behalf of the other contesting respondents has also substantially raised similar contentions and has adopted all the submissions which are made by Mr.Sunil Joshi, learned advocate appearing on behalf of another co- respondent and has reiterated the request to dismiss the application.
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7. Additionally, Mr.D.M. Devnani, learned Assistant Government Pleader appearing on behalf of the respondent-authority has also vehemently opposed this application mainly on the ground that the applicant is trying to make out a new case and under the guise of this application, is practically requesting the Court to re-hear the entire matter which is beyond the scope of review application. Learned Assistant Government Pleader has submitted that looking to the scope of Order 47 of the Code of Civil Procedure, the new contentions which are tried to be pressed into service, may not be possible to be examined at this stage. On the contrary, these contentions which are raised were not raised before the learned Single Judge as well and as such, this application is travelling beyond the scope of the main proceedings.
7.1 Mr.D.M. Devnani, learned Assistant Government Pleader has further submitted that order under review is dated 11.11.2019 and for a substantial period, the review was not submitted and as such, in view of principles of finality attached to the judgment, no case is made out to call for any interference, more particularly when at two stages, the case of the applicant is thoroughly examined; firstly at the stage before the learned Single Judge and then, at appellate stage in the Letters Patent Appeal. Since the applicant throughout has been granted full opportunity of hearing to present the case and as such, simply because the applicant found another judgment, cannot come before the Court for re-arguing the matter. Hence, a request is made to dismiss the review petition.
8. Having heard learned advocates appearing for the respective parties and having gone through the contents of the application and submissions made before us, while examining the request of the applicant, few observations on the issue of scope of review petition, we may refer it and keep in mind as propounded by catena of decisions of the Apex Court. Since we are considering the said observations, we may deem it proper to quote some of the observations hereunder :
(i) AIR 1980 Supreme Court 674:Page 20 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021
C/LPA/1768/2019 IA ORDER
8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case.
The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan.(1) For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment. G. L. Gupta v. D. N. Mehta.(2) The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mahindroo v. Distt. Judge Delhi & Anr.(2) Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.
145. In a civil proceeding, an application for review is entertained only on a ground mentioned in XLVII rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility."Chandra Kanta v. Sheikh Habib.
9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.
(ii) AIR 2000 SUPREME COURT 1650: Page 21 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER
"55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
(iii) AIR 1987 SUPREME COURT 943 and 2013 (2) SCC PAGE 1
9. Keeping in view the aforesaid principles propounded by the Apex Court in various decisions consistently, in light of said observations, we may deal with and examine the case of the applicant.
10. First of all, we were dealing with and examining the order passed by the learned Single Judge under Clause 15 of Letters Patent Appeal. A well propounded proposition of law on the issue of this exercise of jurisdiction, we may keep in mind since we are dealing in Review Application of the said order. Following are the observations contained in paragraph 5 of the decision in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340, since we found it necessary and as such, reproduced hereinafter:-
"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Page 22 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
9. In light of aforesaid observations, we have examined even the order passed by the learned Single Judge, who arrived at a specific conclusion after extending full opportunity to the parties to the proceedings and after considering various contentions raised before the Court and after considering material attached to the main proceedings and then, arrived at a decision by assigning valid reason. This order, as we have said, is examined thoroughly by us while hearing the Letters Patent Appeal at length and as such, we are of the considered opinion that no case is made out by the applicant practically to re-examine and re-hear the main proceedings. It is settled position of law that under the guise of review application or recalling or modification application, no re-hearing of the main matter to be undertaken in the absence of any manifest error. While examining the present application, we have also seen the contentions which have been raised in the written submissions which are practically foreign to the original proceedings and as such, we do not propose to encourage this attempt of making out a new case simply because at a later point of time, the applicant realized to fill up certain drawbacks in the earlier submissions. We have also found that these contentions which are now tried to be raised, were not even raised before the original proceedings and the learned Single Judge also had no opportunity to consider the same and, therefore, sitting in an appeal over the learned Single Judge's order, keeping in mind the scope of Letters Patent Appeal, we have delivered the judgment as we have found Page 23 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER no error in the order passed by the learned Single Judge and, therefore, in this peculiar background o fact, we are of the considered opinion that it is not possible for us to re-examine the issues which are now tried to be raised, looking to the scope and peripheral jurisdiction under review.
10. To ascertain the grievance of the applicant further in this review application, we have even compared the contents of the original petition and the contentions which have been raised before us in the Letters Patent Appeal and corresponding in the present review application and after careful consideration of the stand taken by the applicant, we have found that this attempt is certainly beyond the scope of review proceedings.
11. The error apparent on the face of record is a terminology by-now well defined by catena of decisions and as such, keeping in mind such defined term by-now, the contentions which are now tried to be raised before us, we see no error apparent so as to allow the applicant to make another attempt to re-argue the matter. Looking to the scope of Clause 15 of the Letters Patent, we have extended full opportunity to the applicant to put-forth the case but, having found no error in the learned Single Judge's order, we have passed an order dismissing Letters Patent Appeal. The overall consideration of material placed before us in this application, we are satisfied that case of applicant does not fall within the purview of Order 47 of the Code of Civil Procedure and we have found that review application is devoid of merit, deserves to be dismissed.
12. Had we of the opinion that we have to reopen the challenge or recall the order, we would have dealt with the contentions at length on merit by expressing views. But, apparently, we have found that no case is made out to call for any interference and to recall or review the order, we deem it proper not to express any opinion on merit on these fresh Page 24 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021 C/LPA/1768/2019 IA ORDER contentions which are raised in review application.
13. So far as the factual details which are tried to be projected as if the same are error apparent on the facts, we have found that even if some factual details may not be accurately projected in the order, the same would not construe as error apparent on face of record which may warrant entire recalling or reviewing the impugned order and as such, in the absence of any error substantial in nature or apparent in nature which may go to the root of the case, we are unable to exercise review jurisdiction and we would not like to encourage the attempt which is tried to be made by the applicant.
14. Accordingly, in our considered opinion, no case is made out. The application stands dismissed with no order as to costs.
15. While parting with this order, we may express that new contentions which are tried to be pressed, we have not expressed any opinion of us on merit of those contentions and we have dealt with this application looking to the peripheral scope of review petition.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) DIPTI PATEL Page 25 of 25 Downloaded on : Fri Feb 12 09:03:30 IST 2021