Gujarat High Court
Sureshbhai Ramjibhai Goyani vs State Of Gujarat on 12 October, 2022
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15348 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 15348 of 2016
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 15348 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SURESHBHAI RAMJIBHAI GOYANI & 16 other(s)
Versus
STATE OF GUJARAT & 9 other(s)
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Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE with
MR VAIBHAV V GOSWAMY, ADVOCATE for the Petitioners
MS JYOTI BHATT, AGP
for the Respondents No. 1 & 2 - State Authorities
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C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
MR DHAVAL G NANAVATI, ADVOCATE
for the Respondents No. 4,5,6 - Surat Municipal Corporation
MR DHAVAL DAVE, SENIOR ADVOCATE with
MR RUTUL P DESAI, ADVOCATE
for the Respondent No. 7
MR U I VYAS, ADVOCATE for the Respondent(s) No. 3
MR VIVEK V BHAMARE, ADVOCATE for the Respondent(s) No. 8 and 10
DS AFF.NOT FILED (N) for the Respondent(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/10/2022
CAV JUDGMENT
1.1 Initially, the main challenge in this petition is made by the petitioners to :- (i) some of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and prayed to declare ultravires to the Constitution of India; (ii) the Town Planning Scheme No.16 (Kapodara), Surat as ultravires; and (iii) restrain the Authorities concerned from evicting the petitioners from their plots being part and parcel of Town Planning Scheme No.16 (Kapodara), Surat.
1.2 It is noted that since the petitioners have challenged the vires of the Act, the matter was initially listed and heard by the Division Bench of this Court. Page 2 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 The learned advocate for the petitioners, on instructions, made a statement before the Division Bench of this Court that the petitioners are no longer interested in pursuing the reliefs claimed by which challenge was made to the vires of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and thereby he did not press this petition qua challenge to vires. The Division Bench of this Court has accepted the statement and vide its order dated 21.01.2020 observed that " In view of the above statement, this petition, now being cognizable by the learned Single Judge may be listed before the appropriate Court having jurisdiction to hear such matters."
1.3 In view of above, the matter is listed before this Court for hearing qua other prayers only. Reliefs, as prayed for :
1.4 Thus, now the only prayers as prayed for by the petitioners in this petition are as under :
"48(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate Page 3 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 writ, order or direction and to declare that sections 40, 45, 48, 65, 68 and 69 of the Gujarat Town Planning and Urban Development Act, 1976, are ultravires to the Constitution of India; (Original Prayer - Not pressed) (B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the Town Planning Scheme No.16 - Kapodara, Surat City, is ultravires; (Original Prayer) (C) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that there is error apparent in framing of the Town Planning Scheme No.16 - Kapodara, by declaring said scheme as ultravires to section 65 of the Gujarat Town Planning and Urban Development Act, 1976, inasmuch as though holding the sub-plots of survey nos.25/1 and 25/2 of village Kapodara and permission to carry out construction have been given as back as in 1984 i.e. prior to declaration of intention to frame the scheme; (Original Prayer) (C)1Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the Gujarat Town Planning and Urban Development Act, 1976 (President Act No.27 of 1976) is ultravires to Part IX and IX-A of the Constitution of India, 1950; (Amended Prayer) (C)2Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the provisions of the Gujarat Town Planning and Urban Development Act, 1976, ceases to have any operation on and from May 31, 1994 and any action taken under the said Act thereof is ultavires and void ab initio;
(Amended Prayer) Page 4 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 (C)3 Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that sub-section (3) of section 65 of the Gujarat Town Planning and Urban Development Act, 1976 is ultravires as it amounts to abdication of essential legislative function in favour of the Executive; (Amended Prayer) (D) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the Town Planning Scheme No. 16 - Kapodara, Surat City, is ultravires since it is framed maliciously; (Original Prayer) (E) Pending admission and final disposal of the present petition; be pleased to restrain the respondents, their agents and servants from evicting the petitioners from their plots being part and parcel of Town Planning Scheme No.16 - Kapodara, Surat City; (Original Prayer) (F) Be pleased to pass such other and further orders as may be deemed fit and proper." (Original Prayer) Under the above circumstances, this Court has heard the matter qua the prayers noted above only.
2. Heard Mr.Anshin Desai, learned senior advocate with Mr.Vaibhav V. Goswamy, learned advocate for the petitioners, Mr.Dhaval G. Nanavati, learned advocate for respondents No.4 to 6 - Surat Municipal Corporation, Mr. Dhaval Dave, learned senior advocate Page 5 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 with Mr.Rutul P. Desai, learned advocate for contesting respondent No.7, Ms. Jyoti Bhatt, learned AGP for respondents No.1 and 2 - State Authorities, Mr. U.I. Vyas, learned advocate for respondent No.3 and Mr. Vivek Bhamre, learned advocate for respondents No.8 and 10, at length.
Factual & Legal submissions by the petitioners : 3.1 Mr.Anshin Desai, learned advocate for the petitioners has submitted that the issue involved in the present petition pertains to the Town Planning Scheme No.16 (Kapodara), Surat ['the T.P. Scheme' for short]. 3.2 He has submitted that the petitioners are occupying the Final Plot No.42 admeasuring 1536 sq mtrs., since the year 1984 and have their residential houses at the said plot.
He has submitted that admittedly, the respondents no.7 to 10 are in peaceful possession of the Final Plots No.25 and 31.He has submitted that respondents no.7 to 10 have accepted the possession of the said final plot on paper only, after having full Page 6 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 knowledge and being conscious of the fact of construction of Residential houses on the same. A declaration dated 04.11.1996 as well as affidavit dated 04.11.1996 of respondent no.7 - Balwant Jetha was also filed with regard to the possession of Final Plot ('F.P.' for short) no.42 has been taken by him. Said Balwant Jetha has recognized the possession of the petitioners. Further, said Balwant Jetha has also stated in his affidavit that he has relinquished his right qua the part of the land, which was in possession of the petitioners after receiving consideration.
He has submitted that even the Zonal Officer, Surat has, vide his communication dated 19.10.1996 pursuant to the communication dated 12.08.1996, informed respondent no.7 - Balwant Jetha and Ganpat Jetha, a brother of respondent no.7, about the occupation of land by the Petitioners.
He has submitted that the T.P. Scheme is fully implemented as far as the private respondents are concerned.
Page 7 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 3.3 He has further submitted that in view of the declaration, affidavit and communication as well as considering the official communication dated 19.10.1996, once it is established that the possession of the Final Plot No. 42 has been accepted along with the conscious and express knowledge of the constructions thereto, the Town Planning Scheme stands implemented. He has submitted that the same amounts to implementation of the Town Planning Scheme and once the same is done, the Corporation/Appropriate Authority cannot act as an agent of private parties to settle the private disputes. 3.4 He has submitted that once the possession of the Final Plot is accepted by the allotees on 'as is where is' basis, like in the instant case, the duty of the Corporation/Appropriate Authority and its powers to summarily evict as per Section 68 of the Act comes to an end and cannot be invoked at the whims and fancies of private persons.
3.5 Attention of this Court is invited by Mr.Anshin Desai, learned senior advocate for the petitioners to some relevant and vital facts that :-
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C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Land bearing Revenue survey no. 25/1 and 25/2 was purchased by Naran Madhav and Mulaji Durlabh vide a registered sale deed from the original owners namely Aminabibi and Rasulbibi on 23.08.1949 and Revenue Entry No.123 to that effect had been mutated on 16.08.1950.
Vide Entry No.296 Revenue Survey No.24, 25/1 and 25/2 were inherited by Champak Hira being the legal heir of Mulaji Durlabh pursuant to a partition.
On 15.10.1969, the said lands were mortgaged to one Ambeta Vividh Karyakari Sahakari Mandli and raised a loan. As the said loan was not repaid, the said Mandli has organised an auction on 22.05.1981 and in the auction process, the said lands were purchased by the Society for a consideration of Rs.4,25,000/- and Revenue Entry No.477 was mutated regarding the said auction on 15.11.1983.
The petitioners have been granted development permission for land bearing Survey No.25 was sanctioned Page 9 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 by the Corporation for construction of the society on dated 08.03.1984 and Raja Chitthi was also given for the said land for the construction of the society i.e. Kamal Park Cooperative Housing Society Ltd., ('the Society' for short).
Entry No.477 was cancelled vide an order dated 20.06.1986 in suo motu R.T.S. Case No.110 of 1984.
Pursuant to the notice issued by the Corporation under Rule 33 of the Town Planning and Urban Development Act, 1976 ('the Act' for short) for transfer of possession, the Society gave a consent letter to the Corporation on 02.06.1995 and not pointed out the fact that the said land was in possession of the present petitioners and not the original owners - Champak Hira.
The petitioners have also been granted non- agricultural permission qua Final Plot No.42 on dated 30.12.2009 by the Authorities concerned.
The petitioners had been granted regularization Page 10 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 permission vide order dated 09.10.2015. The said permission came to be cancelled on dated 20.08.2016. without even issuing notice to the petitioners.
On the very same day, the Surat Municipal Corporation, Surat ('the Corporation' for short) had come to the premises of the petitioners to demolish their residential premises and under such peculiar circumstances, the petitioners had to undertake to handover the premises within a stipulated period under the threat of losing their residential houses on the same day.
It is on the very same date i.e., 20.08.2016, the petitioners approached this Hon'ble Court by way of Misc. Civil Application No.2357 of 2016 and pointed out the fact that the order dated 21.09.2015 passed by this Hon'ble Court in Special Civil Application No.17563 of 2015, seeking implementation of the said T.P.Scheme has been passed without joining the present petitioners as a party and the petitioners are the affected parties in the said dispute. The said fact clearly shows the arbitrary, biased, collusive and unconstitutional act by the Page 11 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Corporation as well as by the private respondents. 3.6 Mr.Anshin Desai, learned senior advocate for the petitioners has submitted that the documents referred to above such as the rajachitthi, non-agricultural use permission, order of regularization as well as communications and declarations by the petitioners are undisputed or have otherwise only been subjected to bare denial without there being any document or evidence on record to controvert the same.
3.7 He has further submitted that in view of the above dates, it becomes crystal clear that the development permissions to the petitioners had been granted way back in the year 1984, that too, before submission of Draft Town Planning Scheme on date 29.05.1986 and its sanction on date 05.01.1987.
He has submitted that the above dates also make it clear that pursuant to the auction sale dated 22.05.1981, Champak Hira (original owner) had no right to hand over the possession of the Final Plot No. 42 by way of communication dated 02.06.1995. Page 12 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 3.8 He has submitted that respondent No.7 - Balwant Jetha, to whom the land in question is allotted by the Authority as per the final Town Planning Scheme, has already relinquished his right from the land in question as he was aware about the constructions on the land in question put up by the petitioners and therefore, he has stated on affidavit and declared about the same. He has also stated that he has received the money from the petitioners and he is waiving his right in favour of the petitioners.
3.9 In support of the submissions, Mr.Anshin Desai, learned senior advocate for the petitioners has relied upon the following judgments :
i. AIR 1972 SC 793 - Municipal Corporation for Greater Bombay and another vs The Advance Builders (India) Pvt. Ltd., more particularly Paras : 5, 6, 10, 11, 12 and 13 thereof.
ii. 1975 Bom. LR 355 (SC) - Chandulal Vausdeo Vaidya vs Nasik Municipal Borough, Nasik (Appeal No.266 of 1973), more particularly Paras : 5, 6, 7, 8, 12, 21 to 28 thereof.
iii. 2009 SCC Online Bom 1262 - Prabhavanti Mulji Shah and Anr. Vs Municipal Commissioner of Municipal Corporation Page 13 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 of Greater Bombay, more particularly Paras : 14, 18, 19, 20 and 21 thereof.
iv. (2020) 9 SCC 356 - Hari Krishna Mandir Trust Vs State of Maharashtra and Others, more particularly Paras : 50, 96, 100, 102 and 103 thereof.
v. (2013) 5 SCC 357 - Esha Ekta Apartments Co-operative Housing Society Limited Versus Municipal Corporation Of Mumbai vi. (2010) 2 SCC 27 - Priyanka Estates International Pvt.Ltd. Versus State Of Assam vii. (1996) 6 SCC 464 - Ganapathi National Middle School Versus M.Durai Kannan viii. (2013) 5 SCC 336 - Dipak Kumar Mukherjee Versus Kolkata Municipal Corporation ix. AIR 1972 SC 1 - Naraindas versus Vallabhdas x. 1975 ALLMR ONLINE 326 - Chandulal Vasudev Vaidya versus Nasik Municipal Borough, Nasik xi. 2009 SCC OnLine Bom 1262 - Prabhavanti Mulji Shah versus Municipal Commissioner of Municipal Corporation of Greater Mumbai xii. AIR 1985 SC 613 - M/s. Babubhai and Co. versus State of Gujarat xiii. 2022 (0) AIJEL-HC 244145 - Nidhi Cooperative Housing Society Ltd., versus State of Gujarat Page 14 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 3.10 Mr. Anshin Desai, learned senior advocate for the petitioners has submitted that even otherwise, in the petition preferred by the petitioners, the respondents cannot seek eviction of the present petitioners or implementation of the Town Planning Scheme. He has further submitted that the subject matter of the present petition is not about the legal standing of the present petitioners or unauthorized occupation of the land in question by the petitioners.
3.11 He has further submitted that the law regarding Article 300-A of the Constitution of India has developed with various judicial pronouncements and now the same is a fundamental right under Article 21 of the Constitution of India. Even otherwise, in the instant case, the respondents are being allotted two huge chunks of Final Plots and cannot be said to be landless and therefore, the role of the Corporation in the instant case cannot be equated to that of a private contractor, whereby the petitioners, who have been residing at the Final Plot since more than three decades and have also been issued possession receipts, which are sought to be Page 15 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 evicted under the garb of implementation of T.P.Scheme. 3.12 He has submitted that this petition may be allowed and the petitioners may be protected from evicting his own lands in question.
Factual & Legal submissions by the Surat Municipal Corporation :
4.1 Per contra, Mr.Dhaval Nanavati, learned advocate for the Surat Municipal Corporation, Surat has submitted that the Urban Development and Urban Housing Department, Government of Gujarat has initially approved and sanctioned the Preliminary Town Planning Scheme No.16 (Kapodara), Surat in exercise of powers conferred by sub section (3) of Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 on 16.09.1994 and thereafter, has finalised the same on 16.12.1997.
4.2 He has submitted that while approving and sanctioning the T.P. Scheme Revenue Survey Nos.25/1 and 25/2 were allotted and given Original Plot Nos.31 Page 16 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 and 32 and said Original Plot Nos.31 and 32 were allotted and given Final Plot No. 26 by the Government in the year 1996. He has submitted that pertinently, Final Plot No.42 is also carved out from Revenue Survey Nos. 25/1 and 25/2, which was allotted to the private respondents no.7 and 8.
4.3 He has submitted that the Final Plot No. 26 of the T.P.Scheme was allotted and handed over the physical possession to the Original Land Owners - Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai and Champakbhai, and they have given consent vide their written consent dated July 22, 1996 and intimated to hand over the possession of the Revenue Survey Nos. 25/1 and 25/2 in lieu of the Final Plot No.26 in the T.P.Scheme to the original land owners. 4.4 He has submitted that one Kamal Park Cooperative Housing Society Ltd., was framed, constituted and developed on the said Final Plot No. 42 (Revenue Survey No.25/1 and No.25/2).
4.5 He has submitted that while preparing, Page 17 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 framing, approving and sanctioning the T.P. Scheme, neither the original land owners - Champakbhai and others nor the said Society - Kamal Park Cooperating Housing Society Ltd., has objected to framing the T.P. Scheme.
4.6 In support of his submissions, learned advocate for the Corporation has relied upon the ratio so settled in case of Municipal Corporation of Grater Mumbai versus The Advance Builders (India) Private Limited reported in (1971) 3 SCC 381 and in case of Navinchandra Nanalal Kiklawala versus State of Gujarat reported in (2005) 12 SCC 649 and in case of Maggnajibhai Laljibhai Patel versus Ahmedabad Urban Development Authority reported in (2010) SCC Online (Guj) 1337.
4.7 He has submitted that the Authority has issued various notices to the original land owners and the Society. The original land owners and the society have filed their reply to the same. Further, various notices in exercise of powers conferred by Section 68 of the Act, 1976 read with Rule 33 of the Gujarat Town Page 18 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Planning and Urban Development Rules, 1979 were issued once after the Scheme become the part of the Act, 1976.
4.8 He has submitted that the Society has purchased the Revenue Survey Nos.25/1 and 25/2 through an auction proceedings held by the Debt Recovery Officer in the Year 1981.
4.9 He has submitted that upon becoming part of the Act, 1976, the Society has entered into a sale deed on 17.01.1998 with Champakbhai Durlabhbhai, Narsinhbhai Durlabhbhai and Hirabhai Durlabhbhai only in the year 2006 and more particularly that too after receiving sanction from the Government on 16.12.1997 when the Revenue Survey No. 25/1 and Revenue Survey No. 25/2 loses their identity and converted into the Final Plot.
4.10 He has submitted that the said Society has execution a sale deed with the petitioners in the year 2008. However, the very Society has written a letter on 30.08.2010 to the Deputy Collector, Stamp Duty - 1, Page 19 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Surat to cancel the sale deed entered into with the petitioners, which was dully terminated by the said Authority and intimation to that effect has been communicated to the T.P. Authority by the Society on 08.10.2010.
4.11 He has submitted that indeed, the Society came into existence in the year 1981 - 1983 but has executed sale deed with its erstwhile owners in the year 2006. Thereafter, the Society has executed sale deeds with its members in the year 2006 (13.12.2006), which is much after the T.P. Scheme has become the part of the Act in the year 1998.
4.12 He has submitted that indisputably, the Society has executed a sale deed with Champakbhai Hirabhai Patel and others in the year 2006 i.e. on 13.12.2006, when Revenue Survey Nos. 25/1 and 25/2 loose its identity and has become a separate Final Plot No. 42 into the final T.P. Scheme as per the rights settled by the Town Planning Officer. He has submitted that therefore, the Society has entered into the shoes of the original land owners qua Revenue Survey Numbers 25/1 Page 20 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 and 25/2, which is admitted in the reply of the Society dated 04.10.2010, in response to the notices dated 13.07.2010 and 25.07.2010 issued by the Authorities. Thus, said Champakbhai Hirabhai Patel and others have given written consent on 02.06.1995, which is binding upon the Society and its members, inclusive of future members, who have purchased the plots initially or after formation of the Society. At this stage, he has submitted that pursuant to the notices issued by the Authorities, the petitioners have not replied any notice, therefore, he has relied upon the ratio laid down in the case of Babulal Badriprasad Verma versus Surat Municipal Corporation reported in (2008) 12 SCC 401 and has submitted that under these circumstances, it is presumed that the parties have waived their statutory rights to respond and accepted the contents of the notice. He has submitted that the Society vide letter dated 02.06.1995, 01.08.1996 and 04.10.2010 replied and responded to the notices and gave an undertaking and assurance to vacate the Final Plot No.42, but the Society (in turn their members i.e. the petitioners) has not vacated the same. 4.13 He has submitted that so far as Final Plot Page 21 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 No. 42 is concerned, which was carved out from Revenue Survey No. 25/1 and 25/2, which was originally owned by Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai and Champakbhai, at the time of preparing and framing the Town Planning Scheme. He has submitted that at no point of time, said Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai and Champakbhai have objected / resisted the carving of Final Plot No. 42 from Revenue Survey No. 25/1 and 25/2. Even the original land owners in response to statutory notice given written consent to hand over the land area to the Authority to implement the scheme. He has submitted that even thereafter in the year 2006 also, neither of the members of the Society have questioned nor challenged the approved / sanctioned T.P. Scheme and have shifted to the Final Plot No. 26. Thus, T.P. Scheme has become the part of the Act. In support of his submissions, he has relied upon the ratio laid down in case of Kanjibhai Dahyabhai Masattar versus State of Gujarat reported in (2005) 2 GLR 1649 and in case of Kashiben WD/O Pitamber Devchand and another versus State of Gujarat reported in (1989) 2 GLR 1176. He has submitted that the petitioners have no locus to question or challenge the Page 22 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 T.P. Scheme, as they are neither owners of the land or Society has recolonized them as members as per communication dated 08.10.2010.
4.14 He has submitted that the petitioners, who became the members of the respective sub-plots of the Society, which are purchased by them only in the year 2008 i.e. much after the T.P.Scheme is finalized and became part of the Act in the year 1998. He has submitted that the very society has requested for cancelling the sale deed and the said sale deeds were terminated by the Deputy Collector, Stamp Duty - 1, Surat and intimated to the Authority by the Society on 08.10.2010. At this stage, learned advocate for the Corporation has relied upon the ratio laid down in case of Ramanbhai Hargovindbhai Limbachiya versus State of Gujarat reported in 2016 (3) GLR 2695. He has submitted that even otherwise, the petitioners have purchased the land after sanction of the final T.P. Scheme. He has submitted that therefore, neither the Society nor the petitioners have legal and valid title over the Revenue Survey Nos.25/1 and 25/2, as it is already converted and allotted to the private respondents Page 23 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 no. 7 and 8.
4.15 He has submitted that since the T.P. Scheme has become the part of the Act on 16.12.1997 and came into effect on 17.01.1998 and once the original land owners Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai and Champakbhai have given written consent to hand over the physical possession of the Revenue Survey No. 25/1 and 25/2, and majority members of the Society have moved and shifted to the Final Plot No. 26, which was allotted and given in lieu of the aforesaid Revenue Survey Numbers, the petitioners have no legal right to continue and stay over the land in question on two counts; (i) the petitioners are not affected by implementation of the T.P. Scheme, as they are not the rightful owners owned the land in question and (ii) the sale deeds executed in favour of the petitioners were terminated by the Deputy Collector, Stamp Duty - 1, Surat, which was admittedly informed to the Authority by the Society.
4.16 He has submitted that the petitioners are fully aware of the fact that they became members of the Page 24 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Society by the sale deed only in the year 2008 (31.08.2008) i.e. much after preliminary T.P.Scheme was sanctioned (which is in the year 1997-1998), which was terminated by the Authorities concerned and that the the original land owners, who have admittedly given written consent to hand over the physical possession of Revenue Survey No. 25/1 and 25/2 - now Final Plot No. 42, couple with the further admitted fact that the sale deed executed by the society in favour of the petitioners were terminated by the Deputy collector, Stamp duty - 1, Surat on insistence of the Society, the petitioners cannot take any different or independent stand other than stand taken by their predecessors in title and therefore, the petitioners cannot challenge the T.P.Scheme. 4.17 He has submitted that the Authority has given personal hearing to the petitioners and to the Society as well and thereby followed the principles of natural justice.
4.18 He has further submitted that the Society has purchased the land in question in the year 1981, but executed the sale deed in the year 2006. The Page 25 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Government has sanctioned the T.P.Scheme in the year 1997 which came into force w.e.f. 17.01.1998. Therefore, as per the ratio laid down in the case of Ramanbhai Hargovindbhai Limbachiya versus State of Gujarat reported in 2016 (3) GLR 2695, the Society has no legal valid title and since the Society has no legal valid title of the land in question, then how the Society can executed the sale deed in favour of the petitioners. Further, upon the request of the Society itself, the Authority has terminated the sale deeds executed by the Society in favour of the petitioners and the petitioners are aware about this fact, which is suppressed by the petitioner before this Court.
4.19 He has submitted that after the order dated 22.01.2016 passed in Special Civil Application No.17563 of 2015, the petitioners have preferred Misc. Civil Application No.2367 of 2016 and this Court, while adopting and accepting the averments and arguments canvassed by the petitioners, has directed the Authority vide order dated 22.08.2016 to hear all the affected parties and pass reasoned order in view of the ratio laid down in M/s. Babulal and Co. versus State of Gujarat Page 26 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 reported in AIR 1985 SC, which is accepted by the petitioners and has not challenged before higher forum. Thus, the said order dated 22.08.2016 has attained finality.
4.20 He has submitted that before Authority could execute the order dated 22.08.2016 passed by this Court in Misc. Civil Application No. 2367 of 2016, the petitioners have preferred and filed the present petition challenging the vires of certain provisions of the Gujarat Town Planning and Urban Development Act, 1976. 4.21 He has submitted that as per the directions issued by this Court vide order dated 22.08.2016, the Authority has accorded personal hearing to all the affected parties by the T.P.Scheme and passed detail reasoned order dated 23.12.2016 and served copy to all the affected parties. The said order dated 23.12.2016 was challenged by the petitioners before this Court by filing Civil Application No.13577 of 2016 (New numbered as Civil Application No. 3 of 2016) and since the detail reasoned order dated 23.12.2016 passed under Section 68 of the Act, 1976 read with Rule 33 of the Rules, 1979 Page 27 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 and vires of provisions of said sections are under challenge, this Court has stayed the implementation and execution of said order dated 23.12.2016 passed by the Authorities vide order dated 27.12.2016. 4.22 He has submitted that the T.P.Scheme is finalised and the Final Plot No.42 was allotted to the private respondents No.7 and 8, them have made representations dated 29.06.2010, 02.08.2010 and 25.08.2010 before the concerned authorities to hand over the vacant and peaceful physical possession of Final Plot No.42. He has submitted that the said respondent no.7 and 8 have also preferred a petition before this Court seeking implementation of the sanctioned T.P. Scheme and this Court has, vide order dated 22.01.2016, directed the Authority to implement the same latest by 30.06.2016.
4.23 He has submitted that pursuant to the said order dated 22.01.2016, the Authority has issued notice under Section 68 of the Act read with Rule 33 of the Rules on 25.07.2016 to the petitioners and other members of the Society show causing them to vacate the Page 28 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Final Plot No. 42 as per the sanctioned T.P.Scheme. He has submitted that in response to the said notice dated 25.07.2016, the petitioners have given and submitted an undertaking with open eyes and sound mind before the Authority to vacate the Final Plot No. 42 within six (6) days and hand over the vacant and peaceful possession of the same.
4.24 He has submitted that knowing fully aware that construction put up and carried out on Revenue Survey No. 25/1 and Revenue Survey No. 25/2 (Final Plot No. 42) is completely unauthorized and without any permission or authority of law, the petitioners have applied on 20.08.2016 for regularization of said unauthorized construction in exercise of powers conferred under Section 5 of the Gujarat Regularization of Unauthorized Development Act, 2011 for regularizing the said construction. The concerned Authority has rejected the application to regularize the said unauthorised construction standing on Final Plot No. 42. The petitioners have challenged the said rejection order before the Appellate Authority, but the Appellate Authority has not granted stay.
Page 29 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 4.25 He has submitted that in view of above facts and circumstances of the case and ratio laid down by the various Courts, the present petition may be dismissed.
Factual & Legal submissions by the State Government : 5.1 Per contra, Ms.Jyoti Bhatt, learned AGP for the respondent - State Authorities has adopted most of the submissions made by learned advocate for the Surat Municipal Corporation.
5.2 She has submitted that the petitioners have no legal right of protection.
5.3 She has submitted that the State Government by its Urban Development and Urban Housing Department has approved and sanctioned the Preliminary Town Planning Scheme No.16 (Kapodara), Surat in exercise of powers conferred by sub section (3) of Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 on 16.09.1994 and thereafter, has Page 30 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 finalised the same on 16.12.1997. She has submitted that while approving and sanctioning the T.P. Scheme Revenue Survey Nos.25/1 and 25/2 were allotted and given Original Plot Nos.31 and 32 and said Original Plot Nos.31 and 32 were allotted and given Final Plot No. 26 by the Government in the year 1996. He has submitted that pertinently, Final Plot No.42 is also carved out from Revenue Survey Nos. 25/1 and 25/2, which was allotted to the private respondents no.7 and 8.
5.4 She has submitted that the averments made in the petition are vague, baseless and without any substance, because no particulars of violation of which legal, fundamental and/or constitutional rights, which are guaranteed is infringed, how it was infringed and what manner it was infringed, have not been specified by the petitioners.
5.5 She has submitted that whether the averments made and contentions raised in the petition are true or false, will have to be examined by considering the material on record. She has submitted that in view of the facts of this case, which arose disputed question of Page 31 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 facts and besides this, the petitioners has approached this Court with unclean hands, unclean heart and unclean objected with a view to abuse the process of law and faith imposed upon the petitioners by this Court, the kindness and liberty shown was misused by the petitioners. Therefore, this petition deserves to be dismissed, since none of the above tests stands satisfied by the petitioners. In support of her submissions, she has relied upon the decisions of the Hon'ble Apex Court in the case of General Manager, Haryana Roadways versus Jai Bhagwan reported in (2008) 4 SCC 127 and in the case of Union of India versus Shantirajan Sarka reported in (2009) 3 SCC 90 and has submitted that suppression of facts viewed seriously and exemplary cost may be imposed. She has submitted that even as a general rule, suppression of material fact by a litigant disqualify such litigant from obtaining any relief. She has submitted that there are catena of judgments of the Hon'ble Apex Court wherein it is held that before granting any mandatory relief in favour of the petitioner, who has approached the Court with unclean hands, the Court has to consider the conduct and attitude / approach adopted by the petitioner before granting any Page 32 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 mandatory or equitable relief.
5.6 She has further submitted that the petitioners have violated the law and breached the conditions of the development permission themselves and claiming negative equality, which is otherwise not available in view of settled legal position.
5.7 She has also submitted that ultimately, the T.P.Scheme in question is for the public purpose and is not becomes the part of the Act since long i.e. before entering into the transaction by the petitioners. She has submitted that other members of the Society has already been transferred from the land in question to the allotted land. Only the petitioners remain and they are creating hurdles by one way or the other. She has submitted that since the T.P.Scheme has come the part of the Act, the role of the Government is very limited. 5.8 She has submitted that in view of the facts and circumstances of the case, the present petition may be dismissed with cost.
Page 33 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Factual & Legal submissions by the Private Respondent - Respondent No.7 :
6.1 Per contra, Mr.Dhaval Dave, learned senior advocate with Mr.Rutul Desai, learned advocate for respondent no.7 - private respondent has vehemently opposed this petition as they are the affected parties. 6.2 He has submitted that the land of the Respondent no.7 being the co-owner of land bearing revenue survey no.23/paiki was included in the said T.P. Scheme. He has submitted that in the Preliminary Town Planning Scheme, the Respondent no.7 along with its co- owner i.e. the erstwhile owner of Respondent nos.8 to 10 were given original plot nos.30 & 42 and in lieu thereof, 3 final plots being Final Plot no.25 admeasuring 14684 sq. mtrs, Final Plot no.31 admeasuring 29728 sq. mtrs and Final Plot no.42 admeasuring 1536 sq. mtrs., came to be allotted in the Preliminary Town Planning Scheme. He has further submitted that the said preliminary Town Planning Scheme, came to be sanctioned u/s.65(3) of the Act, 1976 on 16.9.1994.
Page 34 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 6.3 he has submitted that admittedly, the possession of the original plot of the land Co-owned by the respondent no.7 with the erstwhile owner of whose heirs are respondent nos.8 to 10 came to be handed over to the appropriate authority and in lieu thereof, the possession of only Final Plot nos.25 and 31 came to be handed over, whereas, the peaceful and vacant possession of Final Plot no.42 was not handed over due to the unauthorized occupation and illegal construction by the petitioners on the portion of the land from which, the Final Plot no.42 came to be carved out for the purpose of allotment to the respondent no.7 and erstwhile owner of the respondent nos.8 to 10.
6.4 He has submitted that it is the statutory obligation on the part of the respondent - Corporation to implement the sanctioned T.P. Scheme and thereby to handover the peaceful and vacant possession of Final Plot no.42 to the respondent no.7 and respondent nos.8 to 10 (being heirs of Rajeshbhai Balvantbhai Patel). 6.5 He has submitted that the Kamal Park Cooperative Housing Society Ltd., where the petitioners Page 35 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 are the members and from whom the petitioners have purchased the land in question, is not joined as a party nor the petition is filed by the said Society. He has further submitted that the said Society has already been handed over Final Plot no.26 in the said sanctioned preliminary T.P. Scheme. He has also submitted that the said Society itself has informed the Corporation vide its communication dated 08.09.2010 that through oversight, the Society has executed the sale deed with regard to the land forming part of Final Plot no.42 with the different owners and have requested the competent authority to cancel the registration of the said documents. He has submitted that pursuant to the admission on the part of the Society, the petitioners have no right, title or interest qua the portion of the land forming part of Final Plot no.42 since the same belongs to the respondent no.7 and respondent nos.8 to 10, who are being allotted the Final Plot no.42 in the sanctioned preliminary T.P.Scheme.
6.6 He has submitted that the petitioners have purchased the different plots on or around the year 2008. He has submitted that if the same is taken on the Page 36 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 face of it, it is an admitted position that the preliminary T.P. Scheme came to be sanctioned by the Government on 16.9.1994. He has submitted that the petitioners have purchased the said plots with open eyes and therefore, they cannot be termed to be a bonafide purchasers. At this stage, in support of his submissions, he has relied upon the ratio laid down in the case of Ramanbhai Hargovinddas Limbachiya V/s. State of Gujarat reported in 2016(3) GLR 2695, wherein it is held that the persons who have purchased the land after sanctioning of the Town Planning Scheme, have no locus to raise any objection with regard to the said Town Planning Scheme. 6.7 He has submitted that respondent no.7 preferred a petition being SCA No.17563 of 2015 before this Court seeking relief to direct the respondent - Corporation to implement the T.P. Scheme qua the Final Plot No.42. He has submitted that this Court has, vide order dated 22.01.2016, was pleased to direct the respondent - Corporation to implement the said T.P.Scheme qua the Final Plot no.42. He has submitted that accordingly, the respondent corporation has issued notice to the petitioners and pursuant to the said notice, Page 37 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 the petitioners, vide undertaking dated 20.8.2016, undertook to vacate the land and handover the peaceful possession within a period of 6 days. He has submitted that in spite of the said undertaking, the petitioners have failed to abide by the said undertaking and preferred Misc. Civil Application No.2357 of 2016 in Special Civil Application No.17563 of 2015, praying for review/recall of order dated 22.01.2016, wherein this Court was pleased to not entertain the said MCA and was pleased to direct the respondent - Corporation to implement the T.P. Scheme in question, after giving opportunity of hearing to all the parties. He has submitted that in view of above, the order dated 22.01.2016 has attained finality.
6.8 He has submitted that in light of the above sequence, the present petition seeking relief as regards challenging the validity of the Town Planning Scheme no.16 (Kapodara) is totally untenable and required to be dismissed.
6.9 He has submitted that right from the draft stage till the stage of final Town Planning Scheme, the Page 38 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 respondent - Corporation has invited the objections and suggestions from all the concern with regard to the Town Planning Scheme no.16 (Kapodara) is concerned. However, the petitioners have never submitted any response to the Corporation. He has submitted that having failed to raise any objection at the relevant point of time, the petitioners are not entitled to make any challenge or grievance with regard to the sanctioned T.P. Scheme since the right if at all accrued, the same has been waived by the petitioners by their conduct on account of principle of waiver and estoppel as observed by the Honourable Supreme Court of India in the case of Babulal Badri Prasad Verma versus Surat Municipal Corporation reported in 2008 (12) SCC 401. 6.10 He has submitted that since the petitioners have given up the challenge to the validity of the provisions of the act, 1976, now if the pleadings of the petition are seen along with the left-out prayer i.e. prayer 48(B) & 48(C), there are no pleadings or an iota of averments as to which are the inconsistencies or transgression as regards the T.P. Scheme is concerned. He has submitted that in absence thereof, it is settled Page 39 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 position of law that the sanctioned Town Planning Scheme, acquires the status of a statute and such scheme cannot be subject matter of a writ proceeding unless there is transgression of jurisdiction or the scheme is totally inconsistent with the Act. He has submitted that the petitioners have failed to point out any transgression of jurisdiction or inconsistency. In support of his submissions, he has relied upon the judgment of the Division Bench of our High Court in the case of Chhaganbhai Motibhai Bhoi and others V/s. Anand Area Development Authority reported in 1989 (2) GLH 488.
6.11 He has submitted that after the order dated 22.08.2016 passed in MCA No.2357 of 2016 in SCA No.17563 of 2015, the Corporation again issued notices u/ s.68 r/w.33 of the Act, 1976 to the petitioners on 31.08.2016 and after giving proper opportunity of hearing to the petitioners, the Corporation has rejected the objections and has passed the detailed order dated 23.12.2016 directing the petitioners to vacate and handover the vacant possession qua the land forming part of Final Plot No.42. He has submitted that the said Page 40 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 order is not a part of any challenge in the present petition nor any prayers are sought in this regard. He has submitted that in absence thereof, the petitioners are not entitled to any relief as prayed for in the present petition.
6.12 He has submitted that the respondent - Corporation is under statutory obligation to implement the Town Planning Scheme No.16 (Kapodara), Surat in light of the order passed by this Court dated 22.01.2016 as well as the further order passed in MCA No.2357 of 2016 along with the fact that the procedure as contemplated under the Act, 1976 is followed. 6.13 He has submitted that the argument advanced by the petitioners as regards the judgment of the Honourable Supreme Court of India in the case of Advance Builders Pvt. Ltd. (supra) contending that the respondent - Corporation can implement the Scheme only when the same is to be for the public purpose and not for a private purpose i.e. for the purpose of handing over the possession of Final Plot No.42 to the private respondents, is totally misconceived in as much as the Page 41 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 ratio laid down by the Honourable Supreme Court in that judgment, it clearly lays down a law directing the Appropriate Authority to implement the Town Planning Scheme as there being a statutory obligation and a duty cast upon the said Authority to implement the Scheme. He has submitted that in fact, the said judgment itself, issued direction to the Authority to remove the sheds, studs, unauthorized structures standing on the lands of the private respondents, who were allotted to the Final Plot.
6.14 He has submitted that further, even this Honourable Court in the case of Snehanjali Cooperative Housing Society through its Chairman V.s. State of Gujarat reported in 2007 (1) GCD 806 relying upon the ratio laid down in the case of Advance Builders Pvt. Ltd., (supra), was pleased to direct the Authority to implement the Town Planning Scheme and thereby, handover the peaceful and vacant possession by demolishing the illegal and unauthorized construction on the land which is allotted to some other person for the effective implementation of the Town Planning Scheme, being the consequences must follow. He has further Page 42 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 submitted that the said judgment passed in Snehanjali Cooperativfe Housing Society (supra) is confirmed upto the Honourable Supreme Court of India and therefore, the proposition of law as canvassed by the petitioners as regards the ratio laid down by the Honourable Supreme Court in the case of Advance Builders Pvgt. Ltd., (supra) is totally misconceived and not the correct proposition of law which is laid down by the Honourable Supreme Court of India in the said case.
6.15 He has relied upon the following judgments in support of his submissions :
(i) 2016 AIJEL_HC 234988 - Rajeshbhai Vitthalbhai Sardhara versus State of Gujarat
(ii) (2004) 2 SCC 130 - Teri Oat Estates (P) Ltd.
versus U.T., Chandigarh
(iii) 1989 (2) GLH 246 - Kashiberi wd./o Pitambar Devchaiiel versus State of Gujarat
(iv) (2015) 16 SCC 787 - Yellapu Uma Maheswari versus Buddha Jagadheeswararao
(v) 2016 (3) GLR 2695 - Ramanbhai Hargovinddas Limbachia versus State of Gujarat Page 43 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
(vi) 2004 (7) GHJ 127 - Amarsinh Shanaji Thakore versus State of Gujarat
(vii) 1996 (2) GLH 287 - Shilpa Park Cooperative Housing Society Ltd. versus Surat Urban Development Authority 6.16 He has submitted that in view of above facts and circumstances as well as legal position, the present petition may be dismissed.
Rejoinder by the Petitioners :
7.1 In rejoinder, Mr.Anshin Desai, learned senior advocate for the petitioners has submitted that the judgments sought to be relied upon by the present respondents are not applicable to the facts of the instant case in as much as in none of the propositions of law the possession was accepted on 'as is where is' basis. 7.2 He has further submitted that the said pronouncements are applicable to the set of facts whereby the construction is undisputably unauthorized, on a public premise under the scheme and further is in the nature of temporary structures i.e. huts, sheds, and Page 44 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 other establishments. Whereas, in the instant case, the petitioners have been granted development permission for construction of the society way back on dated 08.03.1984 and the construction of the society i.e. Kamal Park Cooperative Housing Society Ltd., is undertaken pursuant to grant of said permission.
Reply by the Private Respondent to the Rejoinder of the Petitioners :
8.1 He has submitted that with regard to the reliance placed by the petitioners on the documents - alleged declaration to have been given by the predecessor in title of the respondent nos.8 to 10 is concerned, it is totally fallacious and the same is required to be not entertained as none of the said documents bears the signature of the Respondent no.7, who is admittedly, the co-owner of the original plot and co-allotee of the final plot no.42. He has submitted that the said documents are strongly disputed by the Respondent no.7 as well as even by the respondent nos.8 to 10 being heirs of erstwhile owner. He has submitted that in light of the said documents being disputed, the petitioners are Page 45 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 seeking any equitable relief under Article 226 of the constitution of India, which may not be granted in as much as the said are the disputed questions of fact and as per the settled position of law, the admissibility of the said documents cannot be looked into in a writ jurisdiction being a disputed question of fact. He has submitted that respondent no.7, in its affidavit, has disputed the said document apart from the fact that the said documents are not even signed by the Respondent no.7 and thus not binding.
8.2 He has further submitted that it is further fortified with the fact that even respondent - Corporation itself is stating that the T.P. Scheme, qua Final Plot No.42, is yet not implemented, and therefore the question of accepting the possession by respondent no.7 and the respondent nos.8 to 10, on 'as is where is' basis, does not arise at all. He has submitted that the said argument is totally misconceived.
8.3 He has submitted that he has denied the contentions raised by the petitioners qua the alleged communication dated 19.10.1996 to the Respondent no.7 Page 46 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 and his brother i.e. the erstwhile owners of the Respondent nos.8 to 10. He has submitted that no such communication was ever served upon to the Respondent no.7. He has further submitted that the said communication itself calls upon the Respondent nos.7 and 8 to accept the possession on 'as is where is' basis, which was not acted upon and therefore, the reliance put forth on the said communication is of no consequence. He has submitted that even otherwise, the same does not appears to be a correct position in as much as the respondent - Corporation in its last affidavit and even before this Court in SCA No.16563 of 2015 has accepted the fact that the T.P.Scheme, qua Final Plot No.42, is yet not implemented and therefore, he has submitted that the reliance put forth on the communication is totally misconceived.
9. On being asked, learned advocates for the respective parties have stated that they do not have any other submissions, including legal submissions, to canvass in this matter.
10. After hearing the submissions made by the Page 47 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 learned advocates for the respective parties and considering the material on record, the following issue is involved in the present petition for determination. ISSUE FOR DETERMINATION :
In view of the facts of this case noted above, the issue before this Court is in narrow compass as to :-
Whether the petitioners can hold the possession of the land in question i.e. Final Plot No.42 admeasuring 1536 sq.mtrs., that too without any legal right, pursuant to the sanctioned and finalisation of the Town Planning Scheme No.16 (Kapodara), Surat by the Government since it has become the Act.
FINDINGS BY THE COURT :
11. Considering the facts and circumstances of the case, as mentioned by the learned advocates for the respective parties, the picture which has emerged before this Court is as under :
Page 48 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 11.1 Land bearing Revenue Survey Nos. 25/1 and 25/2 were purchased by Naran Madhav and Mulaji Durlabh vide a registered sale deed from the original owners viz., Aminabibi and Rasulbibi on 23.08.1949 and Revenue Entry No.123 to that effect had been mutated on 16.08.1950.
11.2 Vide Entry No.296 Revenue Survey No.24, 25/1 and 25/2 were inherited by Champak Hira being the legal heir of Mulaji Durlabh pursuant to a partition.
11.3 On 15.10.1969, the said lands were mortgaged to one Ambeta Vividh Karyakari Sahakari Mandali and raised a loan.
11.4 As the said loan was not repaid, the said Mandali has organised an auction on 22.05.1981.
11.5 In the auction process, the said lands were purchased by the Kamal Park Cooperative Housing Society Ltd., by paying a consideration of Rs.4,25,000/-
and Revenue Entry No.477 to that effect was mutated on 15.11.1983.
Page 49 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 11.6 The petitioners have been granted development permission for land bearing Survey No.25, which was sanctioned by the Corporation for construction of the Society on dated 08.03.1984 and Raja Chitthi was also given for the said land for the construction of the society i.e. Kamal Park Cooperative Housing Society Ltd., ('the Society' for short).
11.7 On 21.02.1985, the Authority i.e. Surat Municipal Corporation has declared its intention under Section 41 of the Act, 1976 to frame the Town Planning Scheme No.16 (Kapodara), Surat and followed the process under Section 41 of the Act.
11.8 Entry No.477 was cancelled vide an order dated 20.06.1987 in suo motu R.T.S. Case No.110 of 1984 and thereby cancelled the name of the Society and entered the name of original land owners in the revenue record. However, the Society has kept possession of the land in question with it.
11.9 The Corporation has framed the Draft Town Page 50 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Planning Scheme in question under the Act and has invited the objections from the interested and affected persons under Section 47 of the Act.
It is noted that at that relevant point of time, neither the erstwhile owners nor the Society has raised any objection qua the land in question before the concerned Authority.
11.10 The land of respondent No.7 (private respondent herein) being the co-owner of the land be- daring Revenue Survey No.23/p was included in the said T.P. Scheme and in the Preliminary T.P.Scheme, respondent No.7, along with its co-owner i.e. the erstwhile owner of respondent Nos.8 to 10 were given Original Plot Nos.30 and 42 and in lieu thereof, three Final Plots being Final Plot No.25 admeasuring 14684 sq.mtrs., Final Plot No.31 admeasuring 29728 sq.mtrs. and Final Plot No.42 admeasuring 1536 sq.mtrs., came to be allotted. It is this Final Plot No.42 admeasuring 1536 sq.mtrs., which possesses by the petitioners. 11.11 The Corporation has sanctioned development Page 51 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 plan and issued Rajachitthi to the Society. 11.12 The said Preliminary Town Planning Scheme No.16 (Kapodara), Surat was approved and sanctioned by the Government, through the Urban Development and Urban Housing Department on 16.09.1994, in exercise of powers conferred by Sub-Section 3 of Section 65 of the Gujarat Town Planning and Urban Development Act, 1976.
11.13 It is noted that the land in question i.e. Final Plot No.42, which is carved out from land bearing Survey No.25/1 and 25/3, which was originally belonging to Narsibhai Durlabhbhai and Champakbhai Hirabhai Durlabhbhai, is allotted to Respondent No.7 - Ganpat Jetha by the Authority pursuant to the T.P.Scheme. 11.14 Pursuant to the notice issued by the Corporation under Rule 33 of the Town Planning and Urban Development Act, 1976 ('the Act' for short) for transfer of possession, the Society gave a consent letter to the Corporation on 02.06.1995, but not pointed out the fact that the said land was in possession of the present Page 52 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 petitioners and not the original owners - Champak Hira. 11.15 The Corporation has issued notice to the petitioner/s under Section 67 of the Act for change of possession as per the sanctioned preliminary town planning scheme on 02.06.1995.
11.16 It is noted that the original land owners as well as the Society, both are ready and willing to give up the lands pursuant to the sanctioned preliminary town planning scheme.
11.17 The Corporation has given the notice to the petitioners of the land in question on 22.07.1996 and the occupiers - the petitioner/s has replied to it on 01.08.1996.
11.18 The father of respondent No.7 - Balvant Jetha and his son Nimish Balvant, both have relinquished their right over the land in question by way of an affidavit and made a declaration to that effect on 04.11.1996 and on 04.06.1999, wherein it is clearly stated by him that at the time of allotting the land in question to them, Page 53 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 there were constructions and the petitioners were in possession of that constructions and further that Balvant Jetha has received consideration from the petitioners and now he has no right over the land in question. It seems that the petitioners have again paid extra money to said Balvant Jetha, who is respondent No.7 herein, to save their constructions on the land which are standing before the formation of the T.P.Scheme. However, the said contention was rebutted by the respondent No.7 in his reply as noted above and the petitioners are failed to produce further concrete proof for the same. Further, since it is a disputed question of fact, this Court is restraining the scope of the petition and therefore, this Court has not stretched it any further.
11.19 The Government has already approved, sanctioned and finalised the Town Planning Scheme No.16 (Kapodara), Surat on 16.12.1997 and it came into effect from 17.01.1998 and it has become the part of the Act in view of Section 65 of the Act.
11.20 It is noted that the petitioner/s has not purchased any part of the land by way of any sale deed Page 54 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 till the finalisation of the T.P.Scheme. 11.21 It is very surprising that the Society has entered into the transactions and executed various sale deeds with the petitioners after almost 8-9 years of finalisation of the T.P.Scheme.
11.22 Since the sale proceedings between the Society and the original land owner - Champak Hira was cancelled in RTS proceedings and the name of the original land owner has come on record but the possession was with the Society, the original land owner
- Champak Hira has again sold the land in question to the Society on 14.12.2006 by way of a registered sale deed. Thus, again the Society has title over the land in question.
11.23 Though having knowledge of the fact that the T.P.Scheme has become final & has become part of the Act, the petitioner - Sureshabhi Ramjibhai Goyani and others have purchased the land in question from the Society by way of registered sale deeds during the year 2006 to 2008 and paid the sale consideration to the Page 55 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Society. It is noted that the petitioners were in possession of the land in question before the sale deeds. 11.24 The Society has applied to the concerned Authority - Deputy Collector, Stamp Duty-1, Surat to cancel the sale deeds and accepted that inadvertently, sale deeds have been executed by it. Therefore, the Authority has cancelled the sale deeds executed by the Society after finalisation of the T.P.Scheme. 11.25 It is noted that the Society has rectified its error which is made by it by executing the sale deeds with the petitioners after the finalisation of the T.P.Scheme.
11.26 Thus, it is clear that again the land in question has gone with the original land owners and the original land owners have shown their willingness to the Corporation to hand over the vacant and peaceful possession of the land in question .
11.27 It is also noted that except the petitioners, other persons have already vacated the possession on the Page 56 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 land pursuant to the final T.P.Scheme.
11.28 The Corporation has issued various notices to the petitioner/s, Society, original land owners and occupiers of the land in question and gave personal hearing to them and thereby followed the principles of natural justice. The petitioner/s have responded to the notices.
11.29 The petitioners have also been granted non- agriculture permission qua Final Plot No.42 on dated 30.12.2009 by the Authorities concerned. 11.30 The petitioners had been granted regularization permission vide order dated 09.10.2015. The said permission came to be cancelled on dated 20.08.2016. without even issuing notice to the petitioners. 11.31 On the very same day, the Surat Municipal Corporation, Surat ('the Corporation' for short) had come to the premises of the petitioners to demolish their residential premises and under such peculiar circumstances, the petitioners had to undertake to Page 57 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 handover the premises within a stipulated period under the threat of losing their residential houses on the same day.
11.32 It is on the very same date i.e., 20.08.2016, the petitioners approached this Hon'ble Court by way of Misc. Civil Application No.2357 of 2016 and pointed out the fact that the order dated 21.09.2015 passed by this Hon'ble Court in Special Civil Application No.17563 of 2015, seeking implementation of the said T.P.Scheme has been passed without joining the present petitioners as a party and the petitioners are the affected parties in the said dispute. The said fact clearly shows the arbitrary, biased, collusive and unconstitutional act by the Corporation as well as by the private respondents. 11.33 The Respondent No. 7 has time and again made representations to the Corporation to hand over the possession of the land in question to him pursuant to the final T.P.Scheme.
11.34 Ultimately, Respondent No.7 has preferred Special Civil Application No.17563 of 2015 before this Page 58 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Court and this Court has directed the Corporation to implement the sanctioned preliminary town planning scheme qua the Final Plot No.42 vide order dated 22.01.2016, which reads as under :
1. Heard Mr.Rutul P. Desai, learned counsel for the petitioner, Ms.Vrunda Shah, learned Assistant Government Pleader for respondent Nos.1 and 2, Mr.Dhaval Nanavati, learned counsel for respondent Nos.3 to 6 and Mr.Vivek Bhamare, learned counsel for respondent Nos.7 and 8/1.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for implementation of the Town Planning Scheme No.16 (Kapodara), Surat, qua Final Plot No.42. It further appears that earlier the respondent-Corporation as an implementing authority has already passed an order dated 02.05.2011, whereby the persons who are in possession were given notice. However, Mr.Dhaval Nanavati, on instructions, states that the scheme has not been yet implemented.
3. Learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of The Municipal Corporation for Greater Bombay and Anr. Vs. The Advance Builders (India) Pvt. Ltd. And Ors. [AIR 1972 SC 793] as well as the judgment of this Court reported in the case of Amarsinh Shanaji Thakore Vs. State of Gujarat [2004 GHJ 127] and the order passed by this Court in SCA No.18511 of 2011. It goes without saying that once the scheme is sanctioned under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short), it is bounden duty of the respondent Corporation to implement the scheme as provided under Sections 67 and 68 of the Act as well as Rule 33 of Page 59 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 the Gujarat Town Planning and Urban Development Rules.
4. Following the ratio laid down by the Apex Court in the case of The Municipal Corporation for Greater Bombay and Anr. (supra), it is bounden duty of the respondent Corporation to implement the scheme. It appears from the record that the respondent Corporation made an attempt, but has not fully implemented the scheme.
5. In light of the aforesaid, the respondent Corporation is hereby directed to take steps for implementation of the Town Planning Scheme No.16 (Kapodara), Surat, qua Final Plot No.42 after following due process as provided under the Act and the Rules, keeping in mind the ratio laid down by the Apex Court in the cases of The Municipal Corporation for Greater Bombay and Anr. (supra) as well as Babubhai & Co. & Ors. Vs. State of Gujarat [AIR 1985 SC 613] and the ratio laid down by this Court in the case of Amarsinh Shanaji Thakore Vs. State of Gujarat [2004 GHJ 127]. Such exercise shall be undertaken after giving an opportunity of hearing to all the parties affected including respondent Nos.7 and 8.1 within a period of 4 (four) weeks from today. The respondent Corporation by issuing appropriate notice, shall implement the scheme in accordance with law latest by 30th June, 2016. It is, however, clarified that this Court has not expressed any opinion on merits. With these observations and directions, the petition stands disposed of. Notice is discharged. No costs. Direct Service is permitted."
11.35 The Corporation has issued notices to the petitioners / occupiers to implement the sanctioned T.P. Page 60 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Scheme. In response to the said notices, the petitioners have given undertaking on 20.08.2016 to the Corporation and stated that they will vacate the land and handover the peaceful possession within a period of 6 days.
However, they did not abide by their own undertaking and did not vacate the same.
11.36 Inspite of vacating the possession, they have preferred Misc. Civil Application No.2357 of 2016 in Special Civil Application No.17563 of 2015 before this Court inter alia praying to review / recall of the order dated 22.01.2016. This Hon'ble Court has, vide order dated 22.08.2016, not entertained the said application and has directed the Corporation to implement the T.P.Scheme, which reads as under :
"1. Present application was moved for urgent order on 20.08.2016, wherein this Court (Coram : Hon'ble Ms.Justice Bela M. Trivedi) has passed the following order and therefore, the matter is listed today :-
"Put up on 22.08.2016 at 11 a.m., before the regular Bench."
2. Heard Mr.B.M.Mangukiya, learned counsel for the applicants, Mr.Hardik Soni, learned Assistant Government Pleader for respondent Nos.2 and 3 on Page 61 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 advance copy, Mr.Dhaval G. Nanavati, learned counsel for respondent Nos.4 to 7 on advance copy and Mr.Vivek Bhamare, learned counsel for respondent Nos.8 to 10. Though served, no one appears for respondent No.1.
3. The applicants have prayed for the following reliefs:
"(A) Be pleased to recall the order dated 22.01.2016 recorded by this Court in Special Civil Application No. 17563 of 2015;
(B) Pending admission, hearing and final disposal of this application, this Hon'ble Court will be pleased to direct the respondents not to implement the notice dated July 25, 2016 and be pleased to further direct the respondents not to take any coercive steps to vacate the premises of the applicants herein by demolishing or otherwise;
(C) ***."
4. It deserves to be noted that in the prayer prayed for in the main petition was for appropriate direction, directing the respondent authorities to immediate implement Town Planning Scheme No.16 (Kapodara), Surat, qua Final Plot No.42 and to remove the encroachment and handover the possession to the petitioners. No other prayers were prayed for.
5. This Court while passing the order dated 22.01.2016, following the ratio laid down in the binding decision of the Apex Court in the case of The Page 62 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Municipal Corporation for Greater Bombay and Anr. Vs. The Advance Builders (India) Pvt. Ltd. And Ors. [AIR 1972 SC 793] as well as reported judgment of this Court in the case of Amarsinh Shanaji Thakore Vs. State of Gujarat [2004 GHJ 127] as well as unreported judgment of this Court passed in Special Civil Application No.18511 of 2011, has observed thus:-
"4. Following the ratio laid down by the Apex Court in the case of The Municipal Corporation for Greater Bombay and Anr. (supr
a), it is bounden duty of the respondent Corporation to implement the scheme. It appears from the record that the respondent-
Corporation made an attempt, but has not fully implemented the scheme.
5. In light of the aforesaid, the respondent Corporation is hereby directed to take steps for implementation of the Town Planning Scheme No.16 (Kapodara), Surat, qua Final Plot No.42 after following due process as provided under the Act and the Rules, keeping in mind the ratio laid down by the Apex Court in the cases of The Municipal Corporation for Greater Bombay and Anr. (supra) as well as Babubhai & Co. & Ors. Vs. State of Gujarat [AIR 1985 SC 613] and the rat io laid down by this Court in the case of Amarsinh Shanaji Thakore Vs. State of Page 63 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 Gujarat [2004 GHJ 127]. Such exercise shall be undertaken after giving an opportunity of hearing to all the parties affected including respondent Nos.7 and 8.1 within a period of 4 (four) weeks from toda y. The respondent Corporation by issuing appropriate notice, shall implement the scheme in accordance with law latest by 30th June, 2016. It is, however, clarified that this Court has not expressed any opinion on merits."
6. It appears from the averments made in the application that pursuant to the above mentioned order, the implementing authority i.e. Surat Municipal Corporation has issued a notice dated 25.07.2016 as provided under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short) as well as the Rules thereof.
7. Learned counsel for the applicants states that the applicants are affected persons and therefore, they have filed present review application. He further submits that the applicants have also filed substantial writ petition challenging the action of the respondent Corporation.
8. It is made clear that in the order which is sought to be recalled, the applicants were not the parties. However, it is quite evident from the order dated 22.01.2016 passed in Special Civil Application No.17563 of 2015 that the petition was filed only for implementing the scheme, which is sanctioned by the State Government under Section 65 of the Act. No Page 64 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 further reliefs have been sought for and therefore, there was no question or occasion to deal with the scheme. As far as notice dated 25.07.2016 is concerned, it goes without saying that the respondent authorities shall have to follow the judgment of the Apex Court delivered in the case of Babubhai & Co. & Ors. (supra), which inter alia provides as under:
"8. In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by s. 54 it will appear clear that the topic of making of town planning schemes is dealt with in ss. 21 to 53 while s. 54 (and some of the following sections like 55 and 71 to 78) deal with the aspect of the execution of town planning schemes and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in their occupation has been conferred upon the Local Authority itself-a highly responsible body , and that the power is required to be exercised by it in objective manner (it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying lands which they are not entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi- judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say , the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by Page 65 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record 622 eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non- germane, irrelevant or malafide considerations would be subject to the writ jurisdiction of Court. Having regard to these aspects, more absence of corrective machinery by way of appeal or review would not in our view render the provision invalid."
9. In light of the aforesaid, in the main petition i.e. Special Civil Application No.17563 of 2015, except the direction, no further relief has been granted by this Court and therefore, it is clarified that rights of the applicants are in no way prejudiced and even in that order, this Court had clearly provided that all the parties, who are affected shall be given an opportunity of hearing, more particularly, as observed in para 5 of the said order.
10. In light of the aforesaid, no case for review is made out. However, the respondent authorities shall follow the principles annunciated by the Apex Court and this Court in catena of decisions while implementing the scheme by providing an opportunity of being heard and then shall pass a reasoned order. With this observation and direction, the petition stands disposed of. Direct Service is permitted." 11.37 Thus, the order dated 22.01.2016 passed by Page 66 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 this Court as noted above in Special Civil Application No.17563 of 2015 has attained finality. 11.38 Inspite of vacating the possession, the petitioner/s has made an application for regularisation of the construction before the Authority concerned of the Corporation on 20.08.2016, which was rejected by the Authority concerned.
11.39 The Respondent No.7 has made representation to the Corporation to hand over the possession of the land in question.
11.40 In view of the order passed by this Court in Misc. Civil Application No.2357 of 2016 noted above, the Corporation has issued notice to the petitioner/s. 11.41 The petitioner/s has remained absent before the Corporation in the hearing.
11.42 The petitioner/s remained present before the Corporation, the Corporation has heard them and has rejected their request and passed detail reasoned order Page 67 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 on 31.12.2016 against the petitioner/s. 11.43 Under these facts and circumstances of the case, the issue as noted above is to be decided by this Court.
12. In view of above facts, I pose the questions as follows :
(i) Whether the original land owners are the bona fide ?
(ii) Whether the Society is a bona fide ?
(iii) Whether the petitioners are the
bonafide ?
(iv) Whether the Authority is the bona fide ?
(v) Whether respondents no.7 to 10 are the
bona fide ?
(vi) Under all circumstances, whether the
public are the sufferer ?
If we recap the entire episode of the land in question, we can see the clear picture. The land was Page 68 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 originally belonged to the original land owners.
Thereafter, they have mortgaged the piece of land before one Cooperative Mandali. When they did not repay the loan, the said Mandali (through the appropriate officer) auctioned the land.
The Society has purchased the land in question through the auction proceedings and became the owner. Consequently, the possession of the land in question was handed over to the Society.
Said proceedings were terminated by the Authority concerned. The land in question was transferred/reversed in the name of the original land owners, but the Society has not handed over the possession of the land in question to the original land owners. They may have joined their hand each other. Be that as it may.
At this stage, neither the Society nor the Mandali nor the original land owners have challenged the same before any higher forum/ Court.
The Authority has declared T.P. Scheme in question. The said T.P. Scheme is for the public at large.
The original land owners have not filed any Page 69 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 objection against the T.P. Scheme in question before any Authority. Having possession on the land in question, the Society is aware about this fact but not raised any objection before any authority, as it has no legal right to object since the land is in the name of the original land owners.
The original land owners have shown their willingness to hand over the possession to the Authority due to the T.P.Scheme.
Since the possession of the land in question was with the Society, the original land owners have executed sale deed in favour of the Society again.
The Society, though knowing fully well about the T.P. Scheme, transferred the land in question to the petitioners by way of sale deeds between the year 2006 to 2008 and the Society has handed over the possession of the land in question to the petitioners. At this time, the petitioners were fully aware about the T.P. Scheme and about the status of the land in question.
Thereafter, the Society has requested the authority to cancel the said sale deeds and in turn, the same are cancelled in the year 2010.
At this stage, the petitioners have not returned Page 70 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 the possession of the land in question to the Society till date. The petitioners have never challenged the said order of rejecting the sale deeds before any higher forum / Court. Under these circumstances, how the petitioners can hold the possession of the land in question and whether they are, under these circumstances, bona fidely possessing the land in question.
Other similarly situated persons, to whom the Society has transferred the piece of lands and their sale deeds have also been cancelled, have vacated the land in question to implement the T.P.Scheme.
The Authority has allotted another land to the original land owners.
The Authority has taken a land of respondents No.7 to 10 for the purpose of T.P. Scheme in question and allotted new land which is the land in question to respondents No.7 to 10. Therefore, question is as to whether the respondent nos.7 to 10 have received any land in place of his land which is already taken by the Authority for the purpose of T.P.Scheme ? Whether the purpose of T.P.Scheme in question, which has already become the Act since long, is served or not? Considering all these facts in mind, the above questions are Page 71 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 answered as under :
12.1 The original land owners have mortgaged the land in question before one Mandali and taken a loan at the relevant point of time and the original land owners have not repaid the loan to the said Mandali and therefore, their lands were forfeited by the said Mandali.
The auction was held and the said Mandali thereby sold the land in question and get his loan back by selling the land in question. The land owners have received the money in place of land and the Mandali has also received its money by selling the mortgaged land. The Society has purchased the land in question through the said auction proceedings by paying appropriate sale consideration to the Mandali. Now, the turning point starts. The Authority has terminated the proceedings and therefore, the land in question was transferred in the name of original land owners, who have mortgaged the land in question and received the money as loan and enjoyed it. Now, again the land has come in their names. So, both the ways, they are the beneficiaries. The Mandali was also not in loss as they have given the loan in place of land in question, sold the land in Page 72 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 question to the Society and received their money back, therefore, the Mandali was not in loss. The original land owners have given their consent to the Authority to hand over the possession of the land in question, but since the petitioners are possession in the land in question, they did not abide by his consent and thereby not given the possession to the Authority. 12.2 The Society has purchased the land in question from one Mandali through auction proceedings, which was terminated by the Authority and the land in question has gone in the name of the original land owners. However, the Society was in possession of the land in question and not handed over the possession of the land in question to the original land owners. The Society has never challenged the said termination order before any higher forum or Court, but also not handed over the possession back and vacate it. The Authority has introduced the T.P.Scheme. The Society has never objected to it as it has no legal right, title or interest on the land in question, as it has only possession of the land in question. The original land owners again executed a sale deed in favour of the Society inspite of Page 73 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 having knowledge about the T.P.Scheme. The Society has executed sale deeds in favour of the petitioners and others in the years 2008 and handed over the possession of the land in question to the petitioners and thereby created right / equity in favour of the petitioners. The petitioners were also aware about the T.P.Scheme and the status of the land, even though they have purchased the land in question. At the instance of the Society, the said sale deeds were cancelled, but the possession remains with the petitioners as the petitioners have not vacated. So, only title of the land in question remains with the Society and not the possession. The Society has also gained its money from the petitioners and therefore, they are not in loss. The Society has also shown his willingness to hand over the possession of the land in question. The Society can show its willingness as it is neither in loss nor in possession of the land in question. One more glaring aspect that the Society has never initiated any proceedings nor it has become the party respondent in any proceedings. If the Society's legal right is affected by any proceedings, then why the Society has not initiated any proceedings. Be that as it may. It smacks a lot against conduct of the Society. Page 74 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 12.3 The petitioners have purchased the land in question from the Society, knowing fully well that the T.P.Scheme has been introduced by the Authority and it affects the land in question. The said sale deeds were cancelled by the Authorities at the instance of the Society. The petitioners have not raised any objection qua the T.P.Scheme or qua the cancellation of the sale deeds. The petitioners have not challenged the same before any higher forum / Court. The possession of the land in question is with the petitioner, which is not handed over back by the petitioner till date. Whether the petitioners can possess the land in question without any legal right, title or interest since the sale deed has already been cancelled, is the question which can be answered from the facts narrated above. 12.4 The Authority has introduced the T.P.Scheme in the interest of public at large. The objections were invited by the Authority from the affected and interested persons, hearing was given to the public who have raised objections, including the petitioners and finalised the T.P.Scheme, after following due process of law and the Page 75 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 T.P.Scheme has become the part of the Act. In the meantime, the society has applied for development permission, Raja Chitthi was also issued by the Corporation for the same in the year 1994 and construction was made. The Authority was aware about the T.P.Scheme, which is of the year 1987, then how such permission was issued by the Authority. Under these circumstances, the Authority has not acted bona fide to that extent. It smacks a lot. Be that as it may. Since it is not the issue before this Court and the T.P.Scheme has now become the part of the Act since long, this Court is restraining itself to enter into such things.
12.5 Pursuant to the T.P.Scheme, the Authority has taken the land of respondents no.7 to 10 and allotted new land, which is the land in question, which possesses by the petitioners. The respondents no.7 to 10 have already handed over their lands to the Authority for the T.P.Scheme. Therefore, on one hand, the respondents no.7 to 10 have given their land to the Authority for the purpose of T.P.Scheme and on the other hand, they can not enjoy the another land in place of their land, which, Page 76 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 as a matter of right, they are entitled to. Due to the possession of the petitioners on the land in question, the Authority can not give possession of the land in question to the respondents no.7 to 10, which is allotted to them pursuant to the finalisation of the T.P.Scheme and now the T.P.Scheme has become the part of the Act since long. Therefore, the respondents no.7 to 10 are in loss, that too at the instance of the Society, petitioners and Authorities. They are entitled to get their rights legally, however, since it is the petition by the petitioners, the role of this Court is very limited qua the observations made in favour of the respondents No.7 to 10 at this stage. Inspite of these facts, it must be noted that the contention of the petitioner regarding the document showing relinquishment of right over the land in question by Balvant Jetha as well as other documents, sounds attractive. The conduct of said Balvant Jetha is also not appreciable, since the said documents are signed by Balvant Jetha only, which is rebutted by the learned advocate for respondents no.7 to 10 and therefore, that contention of the petitioner is not acceptable in eyes of law and tilts the balance against the petitioners. Page 77 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 12.6 During the entire picture of the present case, no one has though about the interest of the public at large. The purpose of the T.P.Scheme is not to disturb any person or not to target any person, but it is for the interest of the public at large. In such a case, the interest of the public at large should give always top priority. When the interest of the public at large is staring us, the personal interest should always be ignored. There are catena of decisions on this line which we all are aware and therefore not discussed here. In the present case, this Court has observed very minutely the demeanor of the all the parties. This Court finds that there is less bona fide, more mischief on the part of all the parties before this Court. However, since it is not the issue before this Court, I am restraining myself from observing anything against anyone at this stage, in this petition. Therefore, in any circumstances, the T.P.Scheme must be implemented which is final, as it has become part of the Act since long.
13. It is relevant to refer to some of the judgments cited at the bar for ready reference :- (i) 2008 (4) SCC 127 - General Manager, Haryana Roadways Page 78 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 versus Jai Bhagwan, (ii) 2016 93) GLR 2645 - Ramanbhai Hargovindbhai Limbachiya versus State of Gujarat and (iii) 2008 (12) SCC 401 - Babulal Badriprasad Verma versus Surat Municipal Corporation at this stage. Further, keeping in mind view laid down in these decisions as well as also keeping in mind the ratio laid down by this Court in the case of Snehanjali Cooperative Housing Society Limited (supra) , confirmed by the Hon'ble Apex Court, wherein the ratio laid down by the Hon'ble Apex Court in the case of Advance Builders Pvt. Ltd. (supra) was kept in mind, as cited by learned advocate for the petitioner as well as learned advocate for Respondent No.7, which is squarely applicable to the facts of the present case and tilts the balance against the petitioners and in favour of Respondent No.7. There are other decisions which support the case of the Government / Corporation and the private respondents herein. There is no dispute with regard to the law enunciated by the Hon'ble Supreme Court of India which are cited by the learned advocate for the petitioners, but they are not helpful to the petitioners in these facts noted above. Page 79 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
14. It is also fruitful to refer to the judgment cited by the learned advocate for the petitioners for the purpose of exercising the powers under Article 226 of the Constitution of India in the case of Hari krishna Mandir Trust versus State of Maharashtra reported (2020) 9 SCC 356 (Head Note - G & H), which is as under :
"G. Constitution of India - Art.226 - Writs - Mandamus - When must be issued - Mandamus is issued in case public authority fails to exercise power or discretion or exercises the same mala fide or erroneously - Direction that ought to have been issued by authority concerned - When may be issued by Court itself - Principles summarised - Mandamus is to enforce a legal duty - It must be shown that such duty exists towards the applicant - Once the same is established, High Court is duty-bound to issue writ of mandamus.
H. Constitution of India - Art.226 - Maintainability of writ petition - Questions of act - Discretionary jurisdiction of High Court - High Court does have jurisdiction to try both issues of fact and law - Exercise of the jurisdiction under Art.226 is, it is true, discretionary, but the discretion must be exercise on sound judicial principles."
Therefore, in view of above discussion, this is not a fit case to exercise the powers under Article 226 Page 80 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 of the Constitution of India and this petition therefore needs to be dismissed.
15. In my conclusion, this Court is of the view that the petitioners could not establish their legal rights and also could not prove breach of any fundamental or constitutional rights if they are having. On the contrary, from the record it transpires that pursuant to the finalisation of the T.P. Scheme, the Final Plot No.42 which is allotted to respondents Nos.7 and 8, the implementation of the T.P.Scheme could not be proceeded further, due to the obstruction created by the petitioners. Therefore also, the petitioners are not entitled to get any benefit / relief from this Court as prayed for in the petition, as no case is made out to establish any arbitrary or illegal action by the respondent Authorities. There is no reason for this Court to exercise the powers under Article 226 / 227 of the Constitution of India in favour of the petitioners, more particularly, for granting writ of mandamus in such peculiar situation. Therefore, the present petition is found meritless and deserves to be dismissed.
Page 81 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
16. There cannot be any dispute with regard to the law enunciated in the decisions of the Hon'ble Apex Court as well as other Hon'ble Courts relied upon by the learned advocate for the petitioners, however, it cannot be helpful to the petitioners any further in view of the facts and circumstances of the present case. The present case does not fall within the purview of these decisions with such facts. Therefore, the present petition deserves to be dismissed.
17. For the reasons recorded above, the following order is passed.
17.1 The present petition is dismissed, with no order as to costs.
17.2 It is expected that the Surat Municipal Corporation, Surat shall implement the Town Planning Scheme No.16 (Kapodara), Surat by performing its statutory duty, in its true spirit, in the interest of public at large.
17.3 It would also be expected that all the parties Page 82 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022 C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022 will cooperate the process of implementation of the Town Planning Scheme No.16 (Kapodara), Surat.
18. In view of disposal of main petition above, both the civil applications would not survive and are disposed of accordingly.
19. Since this Court has protected the petitioners while admitting the present petition, as the petitioners are residing at the land in question since long, propriety demands in the peculiar circumstances of the case that interim relief granted by this Court should be extended further. Accordingly, the interim relief granted by this Court is extended for a further period of three months from today.
Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 83 of 83 Downloaded on : Wed Oct 12 23:15:01 IST 2022