Gujarat High Court
Dipakbhai Jaykant Chokshi & 9 vs Surat Urban Development Authority ... on 3 April, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1104/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1104 of 2011
In SPECIAL CIVIL APPLICATION NO. 723 of 2011
With
LETTERS PATENT APPEAL NO. 1253 of 2011
In
SPECIAL CIVIL APPLICATION NO. 5598 of 2011
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DIPAKBHAI JAYKANT CHOKSHI & 9....Appellant(s)
Versus
SURAT URBAN DEVELOPMENT AUTHORITY THROUGH &
3....Respondent(s)
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Appearance:
MR KK TRIVEDI, ADVOCATE for the Appellant(s) No. 1 - 10
MR. PUJARA, AGP, for the Respondent(s) No. 2 - 2.2
MR. P.G. DESAI WITH MR. UI VYAS, ADVOCATE for the Respondent(s) No.
1
MS NAYNABEN K GADHVI, ADVOCATE for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 03/04/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of these appeals, the appellants have challenged the judgement and order dated 13.6.2011 passed by learned Single Judge in Special Civil Application No. 723 of 2011 and Special Civil Application No. 5598 of 2011 whereby Page 1 of 8 C/LPA/1104/2011 ORDER the writ petitions were dismissed.
2. Learned advocate Mr. Trivedi for the appellants has contended that he is not pressing into service Section 29 of The Gujarat Town Planning and Urban Development Act, 1976 ("the said Act" for short) and he presses into service Section 34 of the said Act. He further contended that the authority as well as learned Singe Judge has committed error in not upholding the contention of Section 34 of the said Act which reads as under:
"34. Sanction for sub-division of plot or layout of private street -
(1) Every person who intends to sub-divide his plot or make or layout a private street on such plot on or after the date of the publication of the draft development plan in the Official Gazette under Section 13 shall submit the intended layout plan for such purpose together with the prescribed particulars (and with such scrutiny fees as may be prescribed by regulation) to the appropriate authority for sanction. (2) The appropriate authority may, within the prescribed period, sanction such plan either without modifications or subject to such modifications or conditions as it considers expedient or may refuse to give sanction, if the appropriate authority is of opinion that such division or laying out of street is not in any way consistent with the proposals of the development plan.
(3) No compensation shall be payable for the refusal of a sanction or for the imposition of modification or conditions in the sanction. (4) If any person does any work in contravention Page 2 of 8 C/LPA/1104/2011 ORDER of sub-section (1), or in contravention of the modifications or conditions in any sanction given under sub-section (2) or in spite of refusal of sanction under the said sub-section (2), the appropriate authority may direct such person by notice in writing to stop any work in progress and after making an inquiry in the prescribed manner remove or pull down any work or restore the land to its original condition. (5) Any expenses incurred by the appropriate authority under sub-section (4) shall be a sum due to the appropriate authority under this Act from the person in default.
He further contended that the original petitioners are holders of the sub-plots pursuant to Sections 29 and 34 application and they have already given undertaking while admitting the appeal that they are not going to construct on the land in question unless zoning is decided by the competent authority under the said Act. He further contended that cancellation of sub-division of plot will result into such position that the original petitioners will lose right on the land in question. He further contended that both the sections 29 and 34 of the said Act are severable in view of Section 33 of the said Act which is reproduced hereinbelow:
"33 (1) - If it appears to the appropriate authority that it is necessary or expedient, having regard to the development plan that may have been prepared or may be under preparation or having regard to any variation made in the final development plan that any permission granted under Section 29 should be revoked or modified, the appropriate authority may, after giving the person concerned an opportunity of Page 3 of 8 C/LPA/1104/2011 ORDER being heard, by order, revoke or modify the permission to such extent as appears to it to be necessary:
Provided that where the permission relates to the carrying out of any building or other operation, in or over any land, no such order shall affect such of the operations as may have already been carried out in pursuance of the permission; and no such order shall be passed after such operations have substantially progressed or have been completed.
(2) Where any permission is revoked or modified by an order made under sub-section (1) and any owner claims within the time and in the manner prescribed, compensation for the expenditure incurred in carrying out any development in accordance with such permission which has been rendered abortive by the revocation or modification, the appropriate authority shall, after giving the owner a reasonable opportunity of being heard, assess and offer such compensation to the owner as it thinks fit.
(3) If the owner does not accept the compensation and give notice within such time as may be prescribed of his refusal to accept the compensation, the appropriate authority shall refer the matter, in the City of Ahmedabad, to the Principal Judge of the City Civil Court, Ahmedabad, and elsehwere to the District Judge and the decision of such Judge shall be final and binding on the owner and appropriate authority."
He further contended that when third party right is created, Section 34 permission cannot be revoked.
Page 4 of 8 C/LPA/1104/2011 ORDER3. Learned advocate Mr. Desai with Mr. U.I. Vyas appears for respondent No. 1. Learned AGP Mr. Pujara appears for respondent No. 2. Learned advocate Ms. Gadhvi appears for respondent No. 4. Learned counsel for the respondents have supported the judgement of learned Single Judge and in view of the observations made in paragraph Nos. 11 to 13, which are reproduced hereinbelow, order of learned Single Judge is just and proper and no interference is called for with the same.
"11. It is to be noted that the land in question Tapovan Farm is found to be a part of the River Tapi even as per SOI sheet and even the said land start submerging on release of 3 lacs cusecs and the said land of Tapovan Farm is within the water way, therefore, no structure in the subplots in the Tapovan Farm are advisable to construct in Tapi River. Even any construction on the water way is prohibited by the decision of this Court reported in the case of Shailesh R. Shah Vs. State of Gujarat reported in in 2002 (3) GLR 2595. As stated above, admittedly the land in question is within the River Tapi and therefore, no construction can be permitted to put up as the same is likely to come in the natural way of the water of River Tapi.
12. The contention on behalf of the petitioner that the lay out plans are sanctioned under Section 34 of the Act and therefore, the same could not have been cancelled in exercise of powers under Section 33 of the Gujarat Town Planning Act is concerned, it is to be noted that in the present case composite order came to be passed sanctioning the development permission and sanction of the development plans on the application submitted under Section 29 of the Gujarat Town Planning Act. Even otherwise it is to be noted that as such no contention has been taken in the present petitions and there are no Page 5 of 8 C/LPA/1104/2011 ORDER averments in the petition at all. Even no such objection has been raised at the time of hearing before the respondent no.1 and reply to show cause notice, The impugned decision has been taken after giving opportunity to the petitioners which is as stated above neither illegal nor perverse and as such it is based on valid reasons and grounds.
13. Now, so far as alternative prayer on behalf of the petitioners permitting petitioners to submit the fresh application for development permission and permitting the petitioners to put up the construction on hollow plinth and that too ignoring the impugned order is concerned, at the outset it is required to be noted that said proposal was also made by the petitioners at the time of hearing before respondent no.1 and the respondent no.1 considered the same and sought opinion of respondent no. 3 and said proposal has been rejected by the Irrigation Department vide communication dated 2.11.2010. It has been opined that no construction is permissible on the land in question which is absolutely in the midts of the River Tapi and which is likely to obstruct the natural way of the water of River Tapi and it is not in larger pubic interest. Even otherwise, it is to be noted that the land in question is in the agriculture zone and therefore, no permission for any non agriculture use is permissible and / or can be granted. It is to be noted that as such the petitioners are claiming that they have purchased the plot for agriculture farm and it is to be noted that for agriculture farm 98 % of the land is required to be kept open for agriculture purpose. Therefore, the alternative request of the petitioners permitting the petitioners to put up the construction on hollow plinth also cannot be granted and same is rightly rejected by the appropriate authority. It is to be noted that respective petitioners have put up the compound wall illegally and it is also found that construction Page 6 of 8 C/LPA/1104/2011 ORDER of compound wall is causing obstruction to natural way of the water of the River Tapi which is not in the larger public interest. It is to be noted that as such the respective petitioners have shown their willingness to remove the construction of compound wall immediately and submit the application afresh development permission to put up the construction on the hollow plinth, however they have requested to direct the respondents to ignore the impugned order, which cannot be accepted. As stated above, the impugned decision is just and proper and legal and is in the larger public interest and based upon the recommendations and observations made by the Inquiry Commission which has made after visiting the plots and land in question and based upon the opinion of respondent no.3 which is based on technical, geographical and hydrological database. Therefore, the aforesaid cannot be directed to be ignored."
4. We have heard learned counsel for the parties. While taking into consideration Section 34 of the Act which is reproduced hereinabove, in our view, keeping in mind the special circumstances where expert opinion is not to allow construction on the land, the respondent authority has cancelled the permission. In that view of the matter, we see no reason to interfere with the decision taken by the authority in light of the expert opinion and more particularly, it is admitted that it is in larger public interest. Therefore, it will not be appropriate for this Court to interfere with the decision taken by the competent authority which is confirmed by learned Single Judge. We are in complete agreement with the decision taken by learned Single Judge, more particularly, in paragraph Nos. 11 to 13 which are reproduced hereinabove. Hence the appeal is devoid of any merit and the same is dismissed. Interim relief, if any, stands vacated.
Page 7 of 8 C/LPA/1104/2011 ORDER5. It will be open for the appellant to make appropriate application after zoning is over.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) (pkn) Page 8 of 8