Gujarat High Court
Khimjibhai Pragjibhai Koshiya vs State Of Gujarat on 22 January, 2020
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/6842/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6842 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KHIMJIBHAI PRAGJIBHAI KOSHIYA
Versus
STATE OF GUJARAT
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP (1) for the Respondent(s) No. 1
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 22/01/2020
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Krutik Parikh, learned AGP waives service of Rule on behalf of respondent Nos.1 and 3 and Mr. Dhaval Nanavati, learned AGP waives service on behalf Page 1 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020 C/SCA/6842/2019 JUDGMENT of respondent Nos.2, 4 and 5. With the consent of the learned advocates for the parties, the petition is taken up for final disposal as the issues lies in narrow compass.
2. Facts in brief giving rise to the present petition are that the petitioner is owner of the land situated at Survey No.173/1 admeasuring 00 - 57 - 69 Hec. RA. Sq. Mtr. of Draft Town Planning Scheme No.49 (Katargam) Final Plot No.172 admeasuring 4037 Sq. Mtrs. at mouje Katargam, Surat (hereinafter referred to as the "subject land"). Initially the subject land was reserved for the purpose of Surat Municipal Corporation District Center in the zoning certificate, however, vide Notification dated 17.11.2014, it is released from the reservation and designated for "Residential Zone" by Resolution No.190 dated 01.02.2014. The Municipal Commissioner, Surat Municipal Corporation, is empowered to initiate proceeding under Section 78 of the Bombay Provincial Municipal Corporation Act, 1949 for the purpose of compulsory acquisition. A proposal in this regard was forwarded to the State Government on 31.07.2014, however, till date the acquisition proceedings have not initiated by the competent Authority. The petitioner made application to convert the subject land into old tenure land as it was of new tenure land. Upon payment of premium amount by order dated 01.03.2017, the subject land was converted for Non-Agricultural use. Thereafter, the petitioner submitted plans and made application for permission. The Surat Municipal Corporation vide communication dated 04.04.2018 reiterated that the subject land in residential zone and by communication dated 11.05.2018, the Town Planning Officer has also given positive opinion. However, by order dated 07.02.2019, the respondent Page 2 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020 C/SCA/6842/2019 JUDGMENT No.5 rejected application of the petitioner for construction permission on the ground that the subject land is under consideration of the State Government for compulsory acquisition.
3. The petitioner has therefore, preferred present petition for the following substantial reliefs:
"A. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 07.02.2019 passed by the respondent No.5 (At Annexure-I), and further be pleased to direct the respondent authorities to approve the plans and grant construction permission to the petitioner qua the land in question;
B. During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, execution and implementation of the impugned order dated 07.02.2019 passed by the respondent No.5 (At Annexure-I), and further be pleased to direct the respondent authorities to approve the plans and grant construction permission to the petitioner qua the land in question;"
4. Heard Mr. Gandhi, learned advocate for the petitioner, Mr. Krutik Parikh, learned AGP for respondent Nos.1 and 3 and Mr. Dhaval Nanavati, learned advocate for the respondent Nos.2, 4 and 5.
5. Mr. Gandhi, learned advocate relying upon the decision of this Court in the case of Surat Municipal Corporation Vs. Bhikhabhai Morarbhai Patel reported in 1993(0) GLR 947 submitted that the construction permission and plans cannot Page 3 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020 C/SCA/6842/2019 JUDGMENT be withheld on the ground that the subject land is under consideration of the State Government for compulsory acquisition. He submitted that till date, the Government has not taken any final decision for acquiring subject land. It is his further submission that ultimately after construction is made, the land is compulsory acquired and the petitioner will be entitled to compensation. He, therefore, submitted that the impugned communication dated 07.02.2019 of respondent No.5 may be quashed and set aside and the concerned respondent Authority may be directed to approve the plans and granted construction permission in respect of the subject land.
6. Mr. Dhaval Nanavati, learned advocate candidly submitted that the permission as sought for by the petitioner, cannot be withheld by the Authorities and submitted that the Court may be pass appropriate order.
7. This Court in the case of Surat Municipal Corporation (Supra), has held as under:
"6. Section 78 of the Corporation Act provides for procedure to be followed by the Corporation when immovable property cannot be acquired by agreement. It postulates an application being filed before the State Government by the Commissioner of the Corporation, seeking approval for acquisition of property and the State Government may pass an order for proceedings to be taken for acquiring the same on behalf of the Corporation.
7. It is not in dispute that the acquisition has taken place under the provisions of the Land Acquisition Act, 1894: The question which arises is that merely on the grant of approval by the Government under Section 78 of the Corporation Page 4 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020 C/SCA/6842/2019 JUDGMENT Act, do the acquisition proceedings commence, as is sought -to be contended by the learned counsel for the appellants, or even if they do commence, can the Corporation not consider the building plans on merit?
8. The approval, which is granted under Section 78 by the, passing of an order by the Government is nothing more than a decision to initiate acquisition proceedings. The Land Acquisition Act contemplates proceedings being initiated by the issuance of a Notification under Section 4 thereof. When such a notice is issued, one of the incidents thereto is that, if the acquisition is completed, then the person whose property is acquired will get compensation with reference to the date of the Section 4 Notification. With regard to the buildings, if any construction has taken place and the same exists when the Notification under Section 4 is issued, the person concerned is entitled to get compensation for the acquisition of the said building, but no right to claim compensation exists for any building, which is constructed thereafter.
9. The Corporation Act does not compel the Corporation to commence the acquisition under the Land Acquisition Act within a stipulated period. If the contention of the learned counsel for the appellant is accepted, the effect would be that the respondents, who are the owners of the land, would be deprived of its use, merely because the Corporation contemplates to acquire the said property. Such contemplation may continue for a number of years because, as already observed, there is no time limit within which the Notification under Section 4 of the Land Acquisition Act should be issued.
10. The respondents cannot construct without the building plans being approved by the Corporation:
When there is no other legal impediment in the way of the respondents to construct, it would in our opinion, be an arbitrary exercise of the power on behalf of the Corporation in not considering the building plans merely because an order under Section 78 of the Corporation Act has been passed.Page 5 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020
C/SCA/6842/2019 JUDGMENT It is no doubt true that the passing of such an order would indicate that the property in question is likely to be acquired, but that is the risk which the respondents face when they apply for sanction of the building plan notwithstanding intended acquisition. As far as the Corporation Act is concerned, the passing of an order under Section 78 is not a ground for rejecting or not considering the building plans for sanction. We are, therefore, in agreement with the learned single Judge, who came to the conclusion that the Corporation could not reject building plans merely because they were contemplating to acquire the same. This appeal is accordingly dismissed, but without any order as to costs."
8. It is eminently clear that the Authorities cannot be withheld or rejected the plans submitted by the petitioner for approval and refusal or withheld the construction permission solely on the ground that the proposal of compulsory acquisition of the subject land is pending with the State Government. The statute does not provide for time limit within which the Authority concerned commence the acquisition proceedings. Under the circumstances, if the ground on which the permission is refused, its overall effect would be that the petitioner being owner of the subject land would be deprived of its use as the contemplation for the acquisition may continue for approval of the orders. The proposal for compulsory acquisition of the subject land would have no adverse effect, if the plans are sanctioned and construction permission is granted to the petitioner as that would not create any impediment for compulsory acquisition and the petitioner will get compensation, if ultimately, the subject land is acquired. I am, therefore, of the view that the impugned communication and the permission is refused cannot be countenanced.
Page 6 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020C/SCA/6842/2019 JUDGMENT
9. For the foregoing reasons, the application succeeds and is hereby allowed. The communication dated 07.02.2019 under which the construction permission is refused, is hereby quashed and set aside and respondents are directed to consider the application for construction in light of the observations made in this judgment. Rule is made absolute. No costs.
(A.G.URAIZEE, J) YNVYAS Page 7 of 7 Downloaded on : Mon Jun 15 01:14:38 IST 2020