Gujarat High Court
Indranagar Cooperative Housing ... vs State Of Gujarat & 3 on 2 February, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/4741/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4741 of 2014
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INDRANAGAR COOPERATIVE HOUSING SOCIETY
LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR JIGAR P RAVAL, ADVOCATE for Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1
MR PG DESAI, SENIOR COUNSEL, with MR HIMANSHU K
PATEL, ADVOCATE for Respondent(s) No. 2
MR PREMAL R JOSHI, ADVOCATE for Respondent(s) No. 3
MR PANAM C SONI, ADVOCATE for Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 02/02/2016
ORAL ORDER
(1) Petitioner, by way of this petition under Article 226 of the Constitution of India, has prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow this Special Civil Application.
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction for quashing and setting aside the impugned T.P. Scheme i.e. T.P. Scheme No.68 (Hansol2) qua the said road which is situated between the original survey no.11 and 13 and at present between the final plot no.21/1 and final plot no.20, 36 and 19.
(C) Your Lordships may be pleased to direct the respondents by way of a appropriate writ order or direction to vary the Town Planning Scheme No.68 (Hansol2) qua the said road which is situated between the original survey no.11 and 13 and at present between the final plot no.21/1 and final plot no.20, 36 and 19 and be further direct the State Government not to sanction the preliminary Town Planning Scheme No.68 (Hansol2) qua the original survey nos.11 and 13 i.e. at present final plot nos.21/1, 21/2 and final plot nos.20, 36 and 19 and be further direct the respondent authorities to show the road in the Town Planning Scheme No.68 (Hansol2) which is at present there between the final plot no.21/1 and final plot no.20, 36 and 19.
(D) Pending hearing and till final disposal of petition, by way of interim relief, Your Lordships may be pleased to direct the respondents to maintain the status quo qua the said road which is situated between the original survey nos.11 and 13 and at present between the final plot no.21/1 and final plot no.20, 36 and 19 in Town Planning Scheme No.68 (Hansol2) and be further direct the respondents not to close the road which is at present their between the original survey no.11 and 13 and at present between the final plot no.21/1 and final plot no.20, 36 and 19.
(E) Any other relief deemed just and proper may please be granted in the interest of justice."Page 1 of 33
HC-NIC Page 1 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER (2) Petitioner, a cooperative society, purchased land bearing original Revenue Survey Nos.10/4 and 11 of Village Hansol, Dist. Ahmedabad, by way of a registered sale deed dated 31.12.1965. Record indicates that thereafter Entry No.1830 came to be mutated in the name of the petitionerSociety, which was certified on 29.01.1966.
(3) Record further indicates that the petitionerSociety made an application for sanctioning of layout plan, as provided under the provisions of the Gujarat Land Revenue Code, 1879 (the Code) before the competent authority - District Development Officer, Ahmedabad, which was approved on 11.07.1972. Record indicates that thereafter the petitionerSociety approached the said authority again and applied for revised lay out plan, which was approved by District Development Officer, Ahmedabad, on 16.07.1978. Record further indicates that the land belonging to the petitionerSociety was measured by the revenue authorities in the year 1982. It further appears from the record that area in question was brought within the jurisdiction of Ahmedabad Urban Development Authority, as per the provisions of the Gujarat Town Planning & Urban Page 2 of 33 HC-NIC Page 2 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER Development Act, 1976 (the T.P. Act), which came into force on 01.02.1978. Town Planning authority prepared and published Town Planning Scheme in accordance with law and the land in question was within the area of Town Planning Scheme No.68 (Hansol), Ahmedabad City. Record indicates that Draft Town Planning Scheme No.68 (Hansol2) was published under Section 42 of the T.P. Act on 03.09.2000 and the draft scheme was sanctioned by the State Government under Section 48(2) of the T.P. Act vide notification dated 20.07.2004. In the said Draft Town Planning Scheme land belonging to the petitionerSociety was reconstituted as under:
Survey O.P. Area in F.P. Area in
No. No. sq. mtrs. No. sq. mtrs.
10/4 1631 21/1 5330
11 21 7441 21/2 1473
9072 6803
Ultimately, after following due process of law, as prescribed under the T.P. Act and the Gujarat Town Planning & Urban Development Rules, 1979 (the Rules), preliminary scheme was sanctioned by the State Government vide notification dated 31.07.2008 and as per the sanctioned Preliminary Town Planning Scheme the land of Page 3 of 33 HC-NIC Page 3 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER the petitionerSociety came to be re constituted as under:
Survey O.P. Area in F.P. Area in
No. No. sq. mtrs. No. sq. mtrs.
10/4 1549 21/1 4569
21 4376 21/2 1144
11 5925 5713
In light of the aforesaid, it appears that while reconstituting the original plot of the petitionerSociety there is deduction of 212 sq. mtrs. and the area of O.P. is reduced, as the land came to be acquired for Gandhinagar Highway.
(4) It is the case of the petitionerSociety that the petitionerSociety came to know about the Town Planning Scheme only when the construction was started in part of the final plot, which is allotted to respondent No.4 herein and therefore the petitioner Society applied for copy of the part of the plan as well as "F" Form and thereafter the petitionerSociety filed an application before Deputy Municipal Commissioner, Ahmedabad Municipal Corporation as well as other authorities and further representation dated 11.02.2014 was filed before the Chief Page 4 of 33 HC-NIC Page 4 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER Town Planner, Ahmedabad Municipal Corporation (AnnexureJ to the petition). Being aggrieved by the same, the present petition is filed as per the aforesaid prayers.
(5) Petitioner has raised the following main grounds in the petition:
(i) That the impugned action of the private respondent, by which they have closed the road, and the action of the respondent authorities by not providing road to the petitionerSociety in the Town Planning Scheme is contrary to law, reason, justice and equity;
(ii) That as per the village map there is road between Revenue Survey No.11 of the petitionerSociety and Revenue Survey No.19 and that as per the layout plan said road is only road for the purpose of entry of the members of the petitionerSociety in their houses and therefore it is the duty of the respondent authority to consider the said aspect while framing Town Planning Scheme;
(iii) That the plans of the petitionerSociety were approved in 1972 and 1978, whereas the Page 5 of 33 HC-NIC Page 5 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER Town Planning Scheme has been framed in the year 1979 and therefore it is the duty of the respondent authority to verify the revenue record and the approved plan(s).
(iv) That even as per the approved plans it is very much clear that the said road is the only road for the members of the petitioner Society to go in their houses and therefore the Town Planning Scheme is contrary to the evidence on record and contrary to law and the same is based on total nonapplication of mind and therefore the same is required to be quashed and/or varied;
(v) That the members of the petitionerSociety are using the said road since last 35 years and the petitionerSociety came to know only when the private respondent started using the same and it was revealed that the said road is not shown as road in the Town Planning Scheme;(vi) That if the owners of Final Plot Nos.19, 36
and 20 are permitted to use the land of the said road as their own land then the petitioner-society will have no access;
(vii) That the members/residents of the petitionerSociety belonging to lower middle Page 6 of 33 HC-NIC Page 6 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER class of the society and are mainly engaged in doing labour work for their livelihood and therefore they are unaware about the procedure of the Town Planning Scheme. However, it is the duty of the respondent authority to provide access to the every Final Plot in the Town Planning Scheme and if the scheme is implemented as it is and the private respondent, who is allotted three final plots, as mentioned above, is permitted to use the said land/plots as its own land then there would be no access for the members of the petitionerSociety and therefore this is a fit case to direct the respondent authority to modify and/or vary the Town Planning Scheme;
(viii) That the petitionerSociety purchased land in question from its original owner in the year 1965 and name of the petitionerSociety is mutated and even in the revenue record it is mentioned that the said road is of the ownership of the executive engineer. It is therefore contended that it is the duty of the Town Planning Authority to consider 7/12 extract and the approved plans at the time of framing of the Town Planning Scheme, however, such fact has been ignored and hence, there is mistake on the part of the Page 7 of 33 HC-NIC Page 7 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER respondent authority while framing the Town Planning Scheme. It is submitted that if the owners of Final Plot Nos.19, 36 and 20 would close the said road then the residents of the petitionerSociety would be in tremendous difficulty;
(ix) That all common amenities like electricity, water, etc. are provided by the authorities through the said road and therefore if the said road would be closed the residents of the petitionerSociety would face irreparable loss and injury;
(x) That it is the duty of the respondent authority at the time of framing Town Planning Scheme to see that each and every final plot would get access, however, in the present case the Town Planning authorities have failed to consider the same and therefore the same is based on absolutely nonapplication of mind. It is reiterated that the petitionerSociety came into existence before the Gujarat Town Planning & Urban Development Act, 1976 came into force and the plans were approved before the Town Planning Scheme and therefore it is the main duty of Town Planning authority to see that the residents of the petitionerSociety Page 8 of 33 HC-NIC Page 8 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER would get sufficient road for their entry in the society and in the houses. However, without application of mind and without considering the situation prevailing before the Gujarat Town Planning & Urban Development Act, 1976 came into force the respondent authorities have prepared the Town Planning Scheme in such a manner that the entire society would be without any access and therefore the Town Planning Scheme is framed by the authority without proper application of mind;
(xi) That the plans of the petitionerSociety were approved before the Town Planning Scheme considering the road between Revenue Survey Nos.11 and 13 as the main road of the petitionerSociety and till date the said road is the main road for the members of the petitionerSociety for their entry in the society and the houses and every member of the society use the said road and if the owner of Final Plot No.19, who has closed down the road and started construction over it, the members of the petitionerSociety apprehend that if other final plot owners do the same thing the members shall have no access for their entry in the houses situated in the petitionerSociety;
Page 9 of 33HC-NIC Page 9 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER
(xii) That this is a fit case to direct the respondent authority to vary the scheme qua the land of the petitionerSociety and qua the road between Revenue Survey Nos.11 and 13 as it exists and that this is a fit case to direct the respondent authority to vary the scheme in exercise of its power and writ jurisdiction;
Petitioner have also relied upon the photographs, which were produced on record by way of an amendment.
(6) In response to the notice issued by this Court the respondentCorporation has filed affidavitinreply, through its I/c. Chief City Planner. RespondentCorporation has elaborately stated the procedure, which was followed before sanctioning the Town Planning Scheme by the State Government vide notification dated 31.07.2008. As contended in the affidavitinreply the intention to prepare Draft Town Planning Scheme No.68 (Hansol2) was declared on 16.08.2002 and the said intention was published in the Official Gazette dated 04.09.2002. Respondent authority has also further stated that thereafter advertisement was published in two daily Gujarati newspapers i.e. Page 10 of 33 HC-NIC Page 10 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER "Sandesh" and "Prabhat" dated 06.09.2002 and 05.09.2002 respectively and thereafter public notice for the owners meeting was also published in two Gujarati dailies "Sandesh" and "Sambhav" dated 29.10.2002. That the authority thereafter gave individual notices to the persons whose names were in the revenue record as the owners in respect of revenue survey numbers and the said owners meeting was held on 01.11.2002. That thereafter the draft scheme was published in the Government Gazette under Section 48(1) of the T.P. Act dated 06.02.2003 and the said notice was also published in the form of notice inviting suggestions and objections in two Gujarati dailies "Jay Hind" and "Gujarat Samachar"
dated 04.06.2003. That the authority has also averred that the government also granted extension, as provided under Section 42(1) of the T.P. Act on 15.06.2003.
Respondent authority has also brought on record reconstitution of the plot at the stage of draft scheme qua the land belonging to the petitionerSociety and as per the draft scheme total area of Revenue Survey Nos.10/4 and 11 were allotted to O.P. No.21 and Final Plot Nos.21/1 and 21/2 to Indira Nagar Cooperative Housing Society. FForm Page 11 of 33 HC-NIC Page 11 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER clearly shows that the total area of O.P. No.21 was 9072 sq. mtr. and in lieu of that the petitionerSociety was allotted two Final Plot Nos.21/1 and 21/2, admeasuring 6803 sq. mtrs. RespondentCorporation has contended that out of the said plot land admeasuring 497 sq. mtrs. was reserved for saleable commercial as Final Plot No.36 and the Neliya road was merged in Final Plot No.20.
(7) Relying upon the part plan it is further contended by the respondentCorporation that the petitionerSociety has an access from the main 60 mtrs. road. That thereafter the Town Planning Officer was appointed by the State Government on 04.11.2004 and he resumed duty on 25.11.2004. It is also contended that thereafter the Town Planning Officer gave advertisement in local daily newspapers Loksatta, Jansatta and Aajkal respectively on 02.12.2004 and 01.12.2004.
RespondentCorporation has also contended that thereafter notice, as provided under Rules 26(1) and 26(3) of the Gujarat Town Planning & Urban Development Rules, 1979 was published on 25.11.2004. That the Town Planning Officer prepared and published Town Planning Scheme and made an award, as Page 12 of 33 HC-NIC Page 12 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER provided under Section 64 of the T.P. Act on 08.05.2008 and submitted the scheme for the State Government for it is final sanctioned. That the State Government, after scrutinizing the said scheme sanctioned the said scheme as preliminary scheme vide notification dated 31.07.2008. It is also contended that 60 mtrs. road is a highway and the land of highway was acquired by the State Government under the provisions of the Land Acquisition Act, 1894, and the said road is going from Air Port to Indira Bridge and the land in question is situated on the main road. It is further submitted that in fact the Town Planning Officer has also changed the area of original plot of the petitionerSociety in view of the fact that the land was acquired by the State for the purpose of laying down 60 mtrs. road as highway, as enumerated hereinabove, and the Town Planning Officer deleted the reservation for sale for commercial for Final Plot No.21/2 and the deduction in the sanctioned scheme qua the petitionerSociety is only 20%.
(8) It is contended that the contention raised by the petitionerSociety that their plans were approved by the Panchayat is erroneous.
Page 13 of 33HC-NIC Page 13 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER That petitionerSociety is having frontage on the main highway as well as on 7.50 mtrs. Town Planning Road. Relying upon "F" Form, the respondentCorporation has contended that Final Plot No.19 is allotted to one Lasiben Gandabhai & Ors. It is also contended that the petitionerSociety has not raised any objections when the Draft Town Planning Scheme was prepared and even before the Town Planning Officer no objections have been raised by the petitionerSociety and therefore the petitioner is estopped from raising any objections at the time of implementation of Town Planning Scheme. RespondentCorporation has reiterated that the petitionerSociety is having frontage, as stated hereinabove, and therefore the petition deserves to be dismissed.
(9) PetitionerSociety has also filed affidavit inrejoinder and have mainly denied the contentions raised by the respondent Corporation and reiterated its contentions raised in the petition.
(10) Respondent No.4 has also filed its affidavitinreply wherein it has been contended that respondent No.4 has wrongly Page 14 of 33 HC-NIC Page 14 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER been dragged in this litigation. That respondent No.4 has been allotted subplot No.2 of Final Plot No.19 and that respondent No.4 had initially put up a residential scheme in the name and style of Shree Mahalaxmi Life, consisting of 23 BHK residential flats, which have already been constructed. That in the entire petition no prayers are prayed for against respondent No.4. It is contended that respondent No.4 is on the verge of completion of its construction and only compound wall is to be constructed, however, because of the order of statusquo respondent No.4 has not constructed the compound wall. Respondent No.4 has also relied upon photographs (at Page 5252 of the paperbook).
(11) Heard Mr.Jigar P Raval, learned advocate for the petitionerSociety, Mr.Manan Mehta, learned Assistant Government Pleader for respondent No.1State, Mr.P.G.Desai, learned Senior Counsel, with Mr.Himanshu K. Patel, learned advocate for respondent No.2AMC, Mr.Premal Joshi, learned advocate for respondent No.3AUDA, and Mr.Panam Soni, learned advocate for respondent No.4private respondent.
Page 15 of 33HC-NIC Page 15 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER (12) Learned advocate for the petitionerSociety has mainly contended that the Neliya Road, which was in existence before the Town Planning Scheme, has wrongly been merged in Final Plot No.20. That if the revised plan dated 16.07.1978 is visualized by closure of 20 ft. Neliya Road, members of the petitionerSociety, more particularly plots Nos.16 and 17 shall have no access. Reliance is heavily placed on the photographs, which is brought on record by way of an amendment (at AnnexureJJ) and it was submitted that the same is the only road available to the members of the petitionerSociety. It is contended that the Town Planning Scheme has come after the petitionerSociety was formed and the petitionerSociety purchased the land in question and the Town Planning authorities have not taken into consideration the revised layout plan (at AnnexureC) and have committed an error and mistake. It is also contended that the petitionerSociety has already made request by way of applications dated 16.02.2013 and 11.02.2014 and therefore this is a fit case where this Court, in exercise of powers and jurisdiction under Article 226 of the Constitution of India, should direct the respondent authorities to vary the scheme Page 16 of 33 HC-NIC Page 16 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER and give access to the members of the petitionerSociety. Attention was also drawn to the grounds, which are raised in the petition.
(13) In support of the contentions raised, learned advocate for the petitioner has placed reliance on the following judgments in the cases of:
(i) Mukundlal Trikmalal Patwa Vs. State of Gujarat, 2007 (1) G.L.R. 761;
(ii) Kartik Mohanlal Patel Vs. State of Gujarat & Ors., 2011 (4) G.L.R. 3028;
(iii) Sunilbhai Natvarbhai Patel & Ors., Vs. State of Gujarat, Through Secretary & Ors., 2011(2) GCD 1200 (Guj.); AND
(iv) Ambedkar Welare Association Vs. State of Gujarat, (dated 29.04.2005 in SCA No.2506/05) (U.J.).
(14) On the basis of the aforesaid contentions the learned advocate for the petitioner Society has contended that the present petition deserves to be allowed as prayed for and the authorities are required to be directed to vary the scheme.Page 17 of 33
HC-NIC Page 17 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER (15) Per contra, Mr.P.G.Desai, learned Senior Counsel, with Mr.Himanshu K. Patel, learned advocate for respondent No.2AMC, has relied upon the affidavitinreply of the respondentCorporation. It is contended that the petitionerSociety has not filed any objections at any stage of the scheme and therefore the petitionerSociety is estopped from raising any objections now at the time of implementation. Relying upon the judgment of the Apex Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corporation & Ors., 2008 (3) G.L.H. 137, it was contended that the action of the petitionerSociety in not raising any objections would amount to waiver. It is further submitted that there is nothing on record to show that the petitionerSociety has obtained any permission for construction. Relying upon the part plan it is submitted that the contention raised by the petitionerSociety that there is no access available to the members of the petitionerSociety is erroneous as the petitionerSociety abuts on 60 mtrs. road, which is a highway. It is further submitted that Neliya road never belonged to the petitionerSociety and the Town Planning Officer, while reconstituting the plots and Page 18 of 33 HC-NIC Page 18 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER while preparing the Town Planning Scheme has merged the said Neliya road, as observed in the affidavitinreply. It is also contended that none of the grounds raised in the petition deserves any consideration. In light of the fact that the petitioner Society have not objected to any of the proposal of the scheme, at any stage and the scheme in question has become part of the T.P. Act, as provided under Section 65(3) of the T.P. Act. That none of the ingredients, as enumerated in Section 70 of the T.P. Act, exist in the case on hand and as there is no error, illegality or mistake in the Town Planning Scheme, as contended by the petitionerSociety, the petition is meritless and the same deserves to be dismissed.
(16) Mr.Manan Mehta, learned Assistant Government Pleader for respondent No.1State, as well as Mr.Panam Soni, learned advocate for respondent No.4private respondent, have reiterated the contentions raised by the learned Senior Counsel for the respondent Corporation. Learned advocate for respondent No.4private respondent, however, further submitted that respondent No.4 is a bona fide purchaser of subplot No.2 of Final Page 19 of 33 HC-NIC Page 19 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER Plot No.19 and no prayers are prayed for in the petition against respondent No.4.
No other or further submissions have been made by the learned counsel appearing for the respective parties.
(17) Upon considering the record of the petition as well as the submissions made on behalf of the respective parties, more particularly considering the admitted dates and the procedure followed by the authorities it clearly establishes that there is no procedural error in sanctioning the scheme. Affidavitinreply filed by the respondent Corporation clearly indicates that the authorities have strictly adhered to the procedure as prescribed under the T.P. Act or the Rules right from the stage of Section 41 to Section 65 of the T.P. Act. It is an admitted position that the petitioner Society has not filed any objections, at the stage of intention to prepare the scheme, Draft Town Planning Scheme, before the Town Planning Officer and/or the State Government. Learned advocate for the petitionerSociety, is also not in a position to deny the said admitted fact.
Page 20 of 33HC-NIC Page 20 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER (18) In order to appreciate the contentions raised by the learned advocate for the petitionerSociety it would be appropriate to refer to the first layout plan dated 11.06.1972 (at AnnexureB to the petition). Said layout plan was sanctioned by District Development Officer, Ahmedabad. Said layout plan shows that 17 subplots were there with a common plot and frontage of the petitionerSociety was 200 mtrs. Gandhinagar road, which is a highway. Similarly, on perusal of the revised layout plan it appears that the tenements were increased from 17 (in the first approved layout plan) to 23. On further perusal of the revised layout plan, though it appears that 20 mtrs. Neliya road is shown the said road is not of the ownership of the petitioner Society. Taking base of the approved plan it appears that on the front of the petitioner Society there is 200 mtrs. Gandhinagar Highway. In between the tenement Nos.18 and 17 there is 20 ft. approach road and similarly 20 ft. approach road is provided at every interval, which has direct access to the road, which is mentioned in the Gandhinagar Highway. Said layout plan clearly indicates even the boundary of the final plot. It is also found from the Page 21 of 33 HC-NIC Page 21 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER revised approved plan that there are internal roads provided between two plots, between 2021 and 1819, similarly between 1415 and 1617 etc. and at every stage such subdivisions are made. The approved layout plan clearly shows that right from Plot No.6 to the North to it at the top i.e. Plot No.19 there is a clearcut margin land provided and after the margin land the boundary to the land belonging to the petitionerSociety is shown. Neliya Road is beyond the same. There is nothing on record to show that the original owners from whom the petitionerSociety purchased the land in the year 1965 had any right over the Neliya. In fact the petitionerSociety has stated in the petition that the same belongs to the State Government. That there is nothing to show that the petitionerSociety has constructed dwellings after obtaining any permission to construct, however, it is not necessary for this Court to inquire into it further and it is an admitted position that the petitionerSociety has filed the applications as well as this petition only when the scheme is at the stage of implementation, without raising any objections whatsoever as observed hereinabove.
Page 22 of 33HC-NIC Page 22 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER (19) Rights qua the original plot have been crystallized, as provided under Section 67(b) of the T.P. Act on sanction of the Town Planning Scheme and therefore the scheme is required to be implemented as it is. Predominant contention raised by the petitionerSociety that on closure of the Neliya Road the petitionerSociety would be without access is not believable as the petitionerSociety has access on 60 mtrs. highway as well as 7.5 mtrs. Town Planning Road. On perusal of the part plan on record as well as on appreciating the re constitution of plot at both draft scheme level and the preliminary scheme level it appears that the Town Planning Officer and the authority have, after total application of mind, framed the preliminary scheme and the State Government has also sanctioned the same after proper application of mind and admittedly after following the due process, as provided under the T.P. Act and the Gujarat Town Planning & Urban Development Rules, 1979.
(20) After deducting the land of the petitioner Society, which has been acquired by the State Government for the State Highway, as per the scheme, on reconstitution only 212 Page 23 of 33 HC-NIC Page 23 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER sq. mtrs. has gone by way of deduction of the land belonging to the petitioner Society. There is nothing on record to show that Neliya Road was the only access to the petitionerSociety and therefore such contention deserves to be negatived. It deserves to be reiterated that on appreciation of even layout plan of the petitionerSociety the boundary of the land belonging to the petitionerSociety clearly ends and the Neliya Road is beyond the said boundary line and that there is a clearcut approach road, which is provided as per the revised layout plan. On further examining the part plan, which is forming part of the record it appears that the Town Planning Officer has in fact protected the total constructed area of the petitionerSociety even though no objections were filed by the petitionerSociety and there is no building permission, which is brought on record. The approved sanctioned layout plan would not permit anybody to raise construction but the same is only sub plotting layout of the proposed development and in the instant case for the residential purpose. The contention that the Town Planning authorities have to give access to each and every final plot is quite evident Page 24 of 33 HC-NIC Page 24 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER from the part plan itself. The petitioner Society have been allotted two final plots i.e. Nos.21/1 and 21/2 and both the said final plots have a clearcut access, which are carved out of petitioner's own original plots. From the photographs, which are relied upon by the learned advocate for the petitioner it clearly appears that some commercial development has been carried out in front of the petitionerSociety and only because if there is some unauthorized extension of more than one member in petitionersociety it cannot be said that there is no access now available. Even while appreciating the contents of the applications, which are filed by the petitionerSociety, the petitioner has almost reiterated the contentions which are taken in this petition. Thus, in the facts arising in this petition it cannot be said that there is any error, infirmity, illegality or mistake on the part of the Town Planning Officer and the Town Planning authorities. It is an admitted position that the petitionerSociety has not filed any objections. The Apex Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corpn. & Ors., 2008(3) GLH 137 has observed thus (Para Nos.2537 and 35):
Page 25 of 33HC-NIC Page 25 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER "25. Different statutes provide for different manner of service of notice. The Bangalore Development Authority Act, 1976 provides that every person whose name appears in the assessment list or land revenue records shall be served with notice. [See Sureshchandra C. Mehta v. State of Karnataka and Others 1994 Supp (2) SCC 511] In West Bengal Housing Board etc. v. Brijendra Prasad Gupta and Others, etc. [AIR 1997 SC 2745], it was opined that the authority is not required to make a roaming enquiry as to who is the person entitled to notice.
26. We have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the Bombay Rules and the Rules.
27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain.
In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest visa vis for the purpose of reallotment thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. It was on that legal principle, this Court in State of Gujarat v. Shantilal Mangaldas and Ors. [1969 (3) SCR 341], opined that when a development is made, the owner of the property gets much more than what would have he got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning."
35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631], this Court observed :
"The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellantCompany, could he claim the said right indirectly ? The answer to the said question must be rendered in the negative. It is wellsettled that what cannot be done directly cannot be done indirectly. The term 'Waiver' has been described in the following words :
"Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind Page 26 of 33 HC-NIC Page 26 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER depends upon consent, and the fact that the other party has acted upon it is sufficient consideration. It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471]"
In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction."
Following the ratio of the Apex Court therefore as the petitionerSociety has not filed any objections as such the petitioner Society has waived its right.
(21) Learned advocate for the petitionerSociety has relied upon judgment of of this Court in the case of Mukundlal Trikmalal Patwa (supra) wherein this Court decided the question of variation raised therein on the facts of the said case. This Court in the said case came to such conclusion considering the fact situation that the land, which was considered to be an excess vacant land under the Urban Land (Ceiling and Regulation) Act, 1976 was really held by Page 27 of 33 HC-NIC Page 27 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER a person as a freehold land and the land in question was allotted to the Corporation on the basis of the fact that the land is surplus land as held by the government. In the case of Mukundlal Trikmalal Patwa (supra) it has been held as under (at Paragraph No.7):
"7. It appears from the record that the whole premise of consideration by the T.P. Officer qua the land in question is on the basis that the land is declared as surplus land under the ULC Act and is held by the Government. The T.P. Officer has not at all considered the matter on the basis that the land is held by Sakina Abbas Karimi or the successor in title since the land was already allotted by the Government to the said Sakina Abbas Karimi and others after it was declared as surplus land under ULC Act. It is not a matter where the allotment by the Government of a ULC Land to Sakina Abbas Karimi and Others is disputed. Further, the transaction of purchase of the land by the petitioner from Sakina Abbas Karimi and Others is by registered sale deed in the year 1994. Therefore, it does appear that the error is committed by the T.P. Officer while preparing the Scheme qua the ownership of the land in question as if of the Government, though the land was already allotted to Sakina Abbas Karimi and in turn, held by the petitioner pursuant to the registered sale deed."
In the aforesaid factual matrix this Court directed to consider the question of variation. Facts, as mentioned in Paragraph No.7 hereinabove does not exist in the present case and the judgment Mukundlal Trikmalal Patwa (supra) is not applicable.
(22) Similarly, Division Bench of this Court in the case of Kartik Mohanlal Patel (supra) rejection of the application for variation and the order of disposal of the Page 28 of 33 HC-NIC Page 28 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER representation was challenged and the State Government was directed to consider the question of correcting or varying Town Planning Scheme in question a fresh within a period of three months. It deserves to be noted that neither of the two applications, which are on record, can be termed as an application for variation. As reiterated by petitionerSociety before the respondent Corporation and the authority is to continue the current position. Prayer of variation has been raised by the petitionerSociety only for the first time in this petition and therefore judgment of Division Bench of this Court is not applicable to the facts of the present case.
(23) PetitionerSociety has also relied upon judgment of Sunilbhai Natvarbhai Patel & Ors. (supra), however, with respect, the said judgment would not apply to the present case as is evident from the observation of this Court in Paragraph Nos.4.1 and 4.6 in the case of Sunilbhai Natvarbhai Patel & Ors. (supra) the State modified the scheme when it was submitted by the Town Planning Officer while sanctioning the preliminary scheme under Section 65 of the T.P. Act that too without hearing and therefore the ratio Page 29 of 33 HC-NIC Page 29 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER laid down in the case of Sunilbhai Natvarbhai Patel & Ors. (supra) would not be applicable to the facts of this case.
(24) Unreported judgment/order relied upon by the learned advocate appearing for the petitioner in the case of Ambedkar Welare Association Vs. State of Gujarat, (dated 29.04.2005 in SCA No.2506/05) (supra), with respect would not apply to the facts of the present case.
(25) In light of the aforesaid therefore none of the grounds raised in this petition require interference of this Court in the sanctioned preliminary scheme. At this juncture it would be appropriate to refer to the judgment reported in the case of Shilpa Park Cooperative Housing Society Limited Vs. Surat Urban Development Authority & Ors., 1996 (2) G.L.R. 707, more particularly at Paragraph No.11 it has been held as under:
"11. In view of the aforesaid, the position emerges is thus:
(1) In view of the substitution of subrule (3) of Rule 21 of the Bombay Town Planning Rules, by Notification dated 3051974, no special notice is required to be given to every individual. Notice is required to be given only in cases where Statues require to do so by specific provisions.
2. Once the final scheme is framed and sanctioned, in view of the provisions of subsec. (3) of Sec.
Page 30 of 33HC-NIC Page 30 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER 65, it is immune from challenging except on the following grounds:
(i) Where there is any transgression of jurisdiction of the authorities concerned.
(ii) Where the scheme is finally emerged is totally inconsistent with the Act and
(iii) Where the minimum statutory essentials are not complied with and as such there is fundamental breach resulting into total lack of jurisdiction."
However, as per the grounds raised in the petition it cannot be said that there is any mistake, error, infirmity and illegality in the scheme. Only because the unauthorized construction is raised by the members of the petitionerSociety the decision taken by the Town Planning Officer to merge Neliya road into other final plots cannot be termed as mistake. On the contrary considering the extent of deduction, which is only to the extent of 212 sq. mtrs. the petitioner Society is in a way benefited. Even at the cost of repetition it deserves to be noted that the petitionerSociety approved plan also shows that it abuts on Gandhinagar Highway and therefore it is not believable that the Neliya Road is the only access to the petitionerSociety. It deserves to be noted that even though this Court expressed that permission to construct may be brought on record the learned advocate for the Page 31 of 33 HC-NIC Page 31 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER petitioner, expressed his inability to bring them on record. Before parting it deserves to be noted that this Court was of the opinion that survey may be conducted through any independent agency or municipal Corporation, however, the petitionerSociety did not agree for such exercise to be undertaken.
None of the exigencies as held in Shilpa Park Cooperative Housing Society Limited (supra) exist in the instant case and therefore the petitioners is not entitled for any of the reliefs prayed for in the present petition.
(26) The records shows that Town Planning authorities has taken into consideration the revenue records including Village Form No.7/12 has taken into consideration construction. The original plots of the petitionerSociety has been reconstituted in such a manner that the houses or dwellings are not affected. But at the same time if any unauthorized construction is raised by the members of the petitionerSociety the same cannot be permitted to be basis of the contentions raised in the petition and such illegality committed by the petitioner Page 32 of 33 HC-NIC Page 32 of 33 Created On Thu Feb 04 02:04:45 IST 2016 C/SCA/4741/2014 ORDER Society cannot be labeled as mistake of Town Planning authorities.
(27) Petition is meritless. Accordingly, the same is dismissed. NOTICE discharged. Adinterim relief granted earlier stands vacated. There shall be no order as to costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* After the aforesaid order was dictated, the learned advocate for the petitioner requests to extend the adinterim relief granted by this Court. Considering the facts and circumstances of the case, adinterim relief as modified vide order dated 14.10.2015 stands extended upto 29.02.2016.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 33 of 33 HC-NIC Page 33 of 33 Created On Thu Feb 04 02:04:45 IST 2016