Gujarat High Court
Minaxi Cooperative Housing Society Ltd vs State Of Gujarat on 30 January, 2013
Author: Jayant Patel
Bench: Jayant Patel
MINAXI COOPERATIVE HOUSING SOCIETY LTD,....Petitioner(s)V/SSTATE OF GUJARAT,THROUGH SECRETARY C/SCA/3202/2000 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3202 of 2000 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ============================================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== MINAXI COOPERATIVE HOUSING SOCIETY LTD,....Petitioner(s) Versus STATE OF GUJARAT,THROUGH SECRETARY & 1....Respondent(s) ============================================================== Appearance: MR BS PATEL, ADVOCATE for the Petitioner(s) No. 1 MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 MR PRANAV G DESAI, ADVOCATE for the Respondent(s) No. 2 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 30/01/2013 ORAL JUDGMENT
The petitioner by this petition has prayed for relief to quash and set aside the order Annexure-A dated 02.06.1992 and the petitioner has also prayed to quash and set aside the notice dated 30.03.2000 at Annexure-B issued by respondent no.2 for inviting offer for disposal of the plot.
The short facts of the case appear to be that on 17.06.1978, the Society of the petitioner is stated to have been formed comprising of 50 plots over the land bearing survey no.241 which is now given final plot no.175. As per the petitioner, on 21.09.1985, the construction plan was approved by the local authority. Thereafter, on 10.04.1987, the revised construction plan was also approved. As per the said construction plan, certain areas were demarcated as common plot and internal roads in the revised plan. It appears that thereafter, the area was included in the Town Planning Scheme and the Town Planning Scheme was framed for such purpose. In the scheme, the common plot of the petitioner society is given final plot no.176 and the said area is reserved for commercial purpose. Initially, in the year 1995, the petitioner had preferred SCA No. 497/95 before this Court and the said petition came to be disposed of by this Court vide order dated 16.12.1995 by observing that the objections preferred by the petitioner were not finalised and therefore, the petition could be termed as premature, but it was observed that the objections/representations shall be considered. It appears that thereafter, the Corporation issued advertisement for inviting offers for disposal of the area of final plot no.176 which was reserved for commercial purpose and at that stage, the present petition before this Court.
I have heard Mr.B.S. Patel, learned counsel appearing for the petitioner and Mr.Jayswal, learned AGP for respondent no.1. Mr. Pranav Desai has filed his appearance for respondent no.2.
It is an admitted position that at the time when the construction plan and the revised construction plan were sanctioned, there was no town planning scheme in existence. It also appears from the affidavit-in-reply filed on behalf of the respondents by Shri R.S. Gandhi, Senior Town Planner dated 18.01.2001 that the final preliminary scheme was framed and thereafter, the objections were heard and final scheme was sanctioned on 28.06.1995 and the final scheme has also come into force from 31.05.1995. It appears that on the date when this Court passed the order on 16.12.1995 in SCA No. 497/95, it was not brought to the notice of this Court that the final scheme was sanctioned and it had come into force and therefore, no benefit can be procured by the petitioner on the basis of the order dated 16.12.1995 passed by this Court in SCA No. 497/95.
However, the learned counsel appearing for the petitioner submitted that the area of road which was provided in the approved construction plan could not be included in the final plot no.176 and he also submitted that even if the corporation was to reserve the area for any public purpose, such purpose could also be other than commercial since it is a residential area and the purpose could be for playground or any other purpose. He submitted that the said aspect is also not considered by the Government at the time when the scheme was sanctioned nor was considered earlier by the corporation.
It appears that there is considerable force in the contention that the area of 6 metre road which was sanctioned by the Corporation in the approved layout plan could not be included in the final Town Planning Scheme. However, the other area of common plot could be considered for the purpose of final plot. It is hardly required to be stated that when any scheme is framed in any area, contribution or the compensation is required to be made or paid by the plot holder concerned. Since the society of the petitioner came into existence prior to formation of Town Planning Scheme and as the construction plan was approved, the constructed area including the internal road were required to be excluded or at least attempt would be made for framing the scheme to exclude such area. However, so far as the land for common plot is concerned, there was no construction over the area and therefore, such area could be considered at the time of framing of the scheme by way of contribution of the society for the purpose of finalisation of the plot since the area of 900 sq.mtr. was a part of the common plot. However, it appears that the total area of final plot no.176 is showing the measurement of 1231 sq. mtr. If the said area is considered, it would mean that the area of 6 mtr. wide road which was by way of an internal road in the approved plan in front of plot nos.1 to 6 is included in the final plot. Whether area of 6 metre wide road could be included in the final plot or not is a larger issue but it does appear that such area of the road could be maintained as the road for the plot holder of final plot no.176 also so that the plot holder of plot nos.1 to 6 of the society could simultaneously make use of the road for their ingress and outgress as provided in the approved plan. Since the scheme is finalised, the appropriate remedy available to the petitioner would be for modification or variation of the scheme as provided under sections 70 and 70A of the Gujarat Town Planning and Urban Development Regulation Act, 1976.
At this stage, Mr.Patel, learned counsel appearing for the petitioner states that the petitioner society would make appropriate application to the State Government for variation of the scheme. However, till then, limited ad interim relief granted by this Court qua the maintenance of 6 mtr. wide road be continued. He also submitted that in the said application, the petitioner may also move the State Government for variation of the purpose of reservation, though it may be continued as public purpose, instead of commercial, may be for playground or any other public purpose.
No further observations and discussions deserve to be made on the said aspect since the question of variation would essentially be in the domain of the local authority read with the ultimate power of the State government.
Hence, the petitioner is permitted to move appropriate application before the State Government within a period of three months from today. If such an application is made, the appropriate decision shall be rendered by the authority, if required, after calling for the comments of the local authority within a period of six months from the receipt of such application. Until the decision is rendered by the State Government, the interim order passed for maintenance of 6 mtr. wide road shall remain in operation and thereafter, the rights of the parties shall be governed as per the decision as may be passed by the State Government subject to the rights of either side to carry before the higher forum in accordance with law.
The petition is disposed of in terms of the aforesaid observations and directions. Rule partly made absolute to the aforesaid extent. No order as to costs.
(JAYANT PATEL, J.) bjoy Page 7 of 7