Gujarat High Court
Amandvan Coop Housing Coop Sty Ltd & 2 vs State Of Gujarat & 109 on 7 February, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/9019/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9019 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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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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AMANDVAN COOP HOUSING COOP STY LTD & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 109....Respondent(s)
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Appearance:
MR HEMANG M SHAH, ADVOCATE for the Petitioner(s) No. 1 - 3
DECESED LITIGANT, ADVOCATE for the Respondent(s) No. 5 - 6
MR NEERAJ ASHAR AGP for the Respondent(s) No. 1 - 2 , 4
MR A J PATEL, ADVOCATE for the Respondent(s) No. 10
MR PRANAV G DESAI, ADVOCATE for the Respondent(s) No. 3
MR M.C.BHATT WITH MR VIKRAM J THAKOR, ADVOCATE for the
Respondent(s) No. 5.1 - 5.4 , 6.1 - 6.2 , 7 - 9
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
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Date : 07/02/2017
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged variation in Town Planning Scheme, Vadodara No.11 (Sama) (Final) by notification dated 17.4.2000 issued by respondent No.1 i.e. the State of Gujarat, under Section 70(6)(b) of the Gujarat Town Planning and Urban Development Act, 1976. By Notification dated 17.4.2000, respondent No.1 has sanctioned the variation in the Town Planning Scheme, whereby, right to use common plot annexed with the land has been taken away.
2. The relevant facts are that the petitioner No.1 is a Society registered under the provisions of the Gujarat Cooperative Societies Act, 1961. All the individual plot holders including some of the members of petitioner No.1- Society and the petitioner Nos. 2 and 3 have purchased the respective freehold plots in Survey No.13 from the erstwhile owners being respondent Nos.5 to 9 herein. The members of petitioner No.1-Society and petitioner Nos. 2 and 3 herein were duly and irrevocably entitled to use the common plot bearing Nos.568 and 471 of Survey No.13.
3. Respondent Nos. 5 to 9 in the petition are erstwhile owners of Survey No.13 while respondent No.10 is a builder/ developer who has been assisting the respondent Nos. 5 to 9 in carrying out construction over common plots No.568 and 471. The layout plan for amalgamated Survey No.13 was approved by the respondent No.3, Vadodara Municipal Corporation in 1965 in accordance with the Page 2 of 17 HC-NIC Page 2 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT relevant provisions of the Bombay Provincial Municipal Corporation Act. In the said layout plan total area of 7,75,364 Sq.Ft. of Survey No.13 was sub divided into 116 plots ad-measuring 5,45,111 Sq.Ft. Two plots bearing Nos.568 and 471 ad-measuring 51,290 Sq.Ft. were reserved for common use and 1,78,967 Sq.Ft. was reserved for internal roads. Petitioners further state that Non Agriculture use permission was granted by respondent No.4- Collector for layout plan of Anandvan (petitioner Society) as a whole.
4. The erstwhile owners bearing respondent Nos.5 to 9 started selling the individual plots from time to time to various persons in the year 1970-71 by entering into sale- deeds. All the sale-deeds entered into by the erstwhile owners with various purchasers of the individual plots mentioned among other things that the common plot bearing Nos.568 and 471 and the internal roads provided for were to be used jointly and commonly by all the plot holders and no one was allowed to construct an exclusive use on the said common plots. It was further duly provided in the said sale-deeds that revenue taxes for the common plots were to be shared by all the plot holders jointly. Copy of such sale-deed duly executed between the erstwhile owners and purchaser Mr.Arvindkumar Babulal Patel and Kirtikumar Babulal Patel has been annexed with the petition at Annexure-A.
5. The petitioner-Society had applied for Non Agriculture use (N.A. permission) from respondent No.4- Collector for final plot Nos.472, 474 to 476, 478, 485, Page 3 of 17 HC-NIC Page 3 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT 545 to 558, ad-measuring 11,168 Sq.Mtrs. Respondent No.4 passed an order dated 16.5.1981 granting N.A. permission subject to certain conditions. Copy of this order is available on record at Anenxure-B. Condition No.15 of the said order states that no construction was permissible on common plots. Resultantly, therefore, no construction was permissible on common plots bearing Nos. 568 and 471 of Survey No.13.
6. It is the case of the petitioners that after coming into force of the Gujarat Town Planning and Urban Development Act, 1976, the respondent No.1 formulated preliminary scheme bearing T.P. Scheme No.11 covering Survey No.13 in the year 1976. Thereafter, in the course of the time, the respondent No.1 sanctioned final T.P. Scheme No.11 of Sama, covering Survey No.13 in the year 1985. The said sanctioned final scheme viz. T.P. Scheme, Vadodara No.11 (Sama) (Final) came into force with effect from 12.2.1985. It is the case of the petitioners that even in the final Scheme, there was no change as far as use of the common plot Nos. 568 and 471 of Survey No.13 was concerned. Further, Column No.16 of 'Remarks' shows that the land constituting common plots bearing No.568 and 471 was kept as it is.
7. That at the time when final T.P. Scheme No.11 was sanctioned by the respondent No.1, the Urban Land Ceiling and Regulations Act, 1976 was in operation. Since the erstwhile owners bearing respondent Nos. 5 to 9 had already irrevocably transferred the use of plots bearing Nos.568 and 471 of Survey No.13 for common use and holding Page 4 of 17 HC-NIC Page 4 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT of 116 plot holders including the petitioners way back in 1970-71, the said respondents never claimed to be the exclusive users of the said two common plot for all these about 30 years.
8. That the erstwhile owners, later on, made certain representations to the respondent No.1 for removal of the word "common" appearing before the plot Nos. 568 and 471 of Survey No.13 forming a part of the final T.P. Scheme Vadodara No.11. At the time of making such representation to respondent No.1, the erstwhile owners concealed the fact that they had earlier entered into respective sale- deeds with various individual purchasers for the sale of individual plots wherein plot Nos. 568 and 471 were categorically and specifically shown to have been transferred irrevocably for the common use and holding of individual purchasers. The obvious intention of the erstwhile owners was to claim exclusive use and rights over the land of the common plots bearing No.568 and 471 by eclipsing the common use and holding rights of all individual plot holders and thereby facilitating construction thereupon.
9. The respondent No.1 issued draft notification dated 21.5.1999 in exercise of its powers under Section 70(2) of the Act at the behest of erstwhile owners being respondent Nos.5 to 9 proposing a variation in the Town Planning Scheme. No such application, however, was moved by the Vadodara Municipal Corporation for variation. It is case of the petitioners that without proper publication of such draft notification dated 21.5.1999 and without inviting Page 5 of 17 HC-NIC Page 5 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT objections from the affected parties like the petitioners, State Government sanctioned the variation vide final notification dated 17.4.2000. By the said variation, the common use and holding of 116 individual plot holders was deleted.
10. The petitioners instituted Regular Civil Suit No.985 of 2000 in the Court of Civil Judge (S.D.) at Vadodara against respondent Nos. 5 to 9 and against respondent No.3- Vadodara Municipal Corporation. In the said suit, petitioners had preferred an application to restrain the respondents from putting up any construction on the said common plots. However, the required relief could not be granted to the petitioners. It has been further pleaded that in none of these proceedings before the Civil Court, the variation made in the Town Planning Scheme No.11 vide final Notification dated 17.4.2000 was subject matter of challenge. While relying upon these pleadings, the petitioners have prayed for quashing and setting aside the variation introduced in the Town Planning Scheme No.11 vide publication of the final notification dated 17.4.2000.
11. Learned counsel, Mr.Hemang Shah, for the petitioners has raised manifold arguments. According to him, erstwhile owners have executed various sale deeds in favour of selling different 116 plots to respective plot holders. It was recited in the sale-deeds that final Plot No.568 and 471 will be kept as common plots for common use by the residents of the society. He has made reference to one of such sale-deeds available at Annexure-A page No.37 with Page 6 of 17 HC-NIC Page 6 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT the petition. He has made a specific reference to serial No.6 in the sale-deeds; wherein, it has been incorporated that the common plot will vest in the Society. He has also referred to Non Agriculture Use Permission order dated 16.5.1981; wherein, concerning plot Nos. 472, 474 to 476, 478, 485, 545 to 558, at clause No.15, it has been specifically mentioned that common plot will be kept open for the use by the residents of the society. Such recital is available at serial number 15 of this order.
12. Learned counsel has further argued that in the year 1976, Preliminary Town Planning Scheme was drafted and thereafter, Final Town Planning Scheme came into effect which is available at page No.48. According to which, the plot Nos.568 and 471 has been kept as common plots. According to him, after the finalization of the Town Planning Scheme in the year 1985, there was no reason for the respondents to have moved a representation on 21.8.1997 and further, no occasion for the respondent- authorities to have acted upon such representation without following the procedure as laid down in Section 70 and Rule 35 of the Gujarat Town Planning and Urban Development Act, 1976 (the Act) had arisen. It has been argued that in para-10 of the petition that without proper publication and notice of such draft notification dated 21.5.1999 and without inviting objections from the affected parties like the petitioners, respondent No.1 sanctioned variation vide Final Notification dated 17.4.2000 which was in violation of provisions of the Act as the notifications were never published in the official gazette nor it has been widely circulated in the newspapers as required under the Act.
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Finally, he has referred to a decision of this Court made in Special Civil Application No.8300 of 2012; wherein, it has been held that in absence of material on record to indicate the powers of the modification of the Preliminary Town Planning Scheme as vested in the State Government under Section 65(1) of the Act has been exercised after the formation of an option that such modification is necessary for the purpose of correcting an error, irregularity or informality, and as the principles of natural justice have been violated by respondent No.1, the Notification dated 12.7.2010 issued under Section 65(1) of the Act qua the petitioners is hereby quashed and set aside.
13. He has further relied upon a decision of the Apex Court in case of Jaswantsingh Mathursingh and another V/s. Ahmedabad Municipal Corporation reported in 1991 (2) GLH 309 and has argued that the issuance of such notice and providing of an opportunity to the petitioners was mandatory requirement which has not been followed in this case.
14. On the other hand, learned counsel, Mr.M.C.Bhatt, for the respondent Nos. 5 to 9 raised various points. It has been argued that relief claimed by the petitioners under Article 226 of the Constitution of India was not maintainable as they have already filed Regular Civil Suit No.985 of 2000 in the Court of Civil Judge (S.D.) Vadodara claiming the reliefs qua some final plots which are subject matter of dispute in this petition. It has been argued that as provided in Section 65(3) of the Town Page 8 of 17 HC-NIC Page 8 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT Planning Act, the variation has become a part of law and therefore, cannot be challenged by way of this petition.
15. Mr.Bhatt, learned counsel has argued that originally land in question comprised of Survey No.13, ad measuring 7,54,364/- Sq.Ft. This Town Planning Scheme was introduced and Preliminary Town Planning Scheme has become final on 12.2.1985 and on the basis of the finalization of the scheme, the original survey number lost its identity and final plot came into existence. According to him, before the Town Planning Scheme could be introduced in the area, the land in question has been plotted into 116 plots and out of such plots, some of the plots were sold to individuals and some of them subsequently formed Cooperative Society and these plots were sold during the period between 1970-1980. The scheme came to be introduced after the sub plots were sold to the plot holders on finalization of the Town Planning Scheme. The final plots were constituted and it is well known that some of the plots might have undergone changes in the area and in this process, the plots kept for common use have merged out of the plots of the petitioners and under these circumstances, the arguments of learned counsel that plot Nos. 568 and 471 were required to be kept as common plots are devoid of any merits.
16. Learned counsel, Mr.Bhatt, has also drawn attention of this Court to the area kept for greenbelt according to him, land belonging to the erstwhile owners has been taken away and in lieu thereof, the plots, which required to be kept as common plots, have gone to the share of respondent Page 9 of 17 HC-NIC Page 9 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT Nos. 5 to 9 and with this background, the authorities have made the variation in the Town Planning Scheme and ultimately, the vacant plots have been allotted to the respondents. Finally, it has been argued that after variation, it has became part of the law. The petitioners averred to change the variation on the ground that they have made representations but such representations were not considered by the State Government as it was without any basis. The petitioners have not come out with any representation at the relevant time and the variation has been made strictly in accordance with law and in accordance with Rule No.35 of the Gujarat Town Planning and Urban Development Rules, 1979. Further, arguing on this point, it has been contended that the variation was a minor variation making correction in removing the word of common plot in the recital as contained in Form No.F.
17. In support of aforementioned contentions, he has relied upon following judgments and has argued that once the preliminary scheme is sanctioned, it becomes part of the Act and such scheme cannot be varied or changed except as provided under the provisions of the Act.
(a) Murtujakhan Joravarkhan Babi (Nawab of Radhanpur Through His Power of Attorney Holder Mohmad Umarbhai Desai) V/s. Municipal Corporation of Ahmedabad reported in 1975 GLR 806;
(b) Saiyed Mohammed Abdullamiya Uraizee (since deceased by his successor) & Ors. V/s. Ahmedabad Page 10 of 17 HC-NIC Page 10 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT Municipal Corporation and others reported in 1977 GLR 549;
(c) Kashiben WD/O. Pitamber Devchand and Anr. V/s. State of Gujarat and Anr. reported in 1989(2) GLR 1176.
18. In support of submissions regarding pendency of the Civil Suit and declining of interim relief, he has relied upon a decision of this Court in case of Amravan Co. Op. Housing Soc. Ltd. V/s. Ahmedabad Urban Development Authority and others reported in 2009 (3) GCD 1774 and has contended that the Court is not required to enter into arena of the dispute where the relief claimed in the suit as well as in the petition were the same or with minor differences in the language.
19. Counsel for the Vadodara Municipal Corporation as well as learned AGP, both have adopted the arguments on the lines of counsel for the respondent Nos. 5 to 9 and has submitted that all the required procedures have been followed and under these circumstances, the petition was liable to be dismissed.
20. This Court has considered the submissions made by both the sides. Learned counsel has first of all referred to the recital in the sale deed available at Annexure-A. Perusal of the sale deed shows that at the time of executing such sale-deed, the erstwhile owners have kept two plots as common plot for common use by the residents of the society. Even at the time of granting N.A. Page 11 of 17 HC-NIC Page 11 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT permission on 16.5.1981, the plots, in question, were kept as common plot. The recital regarding the same is available at serial number 15 of this document. The Authorities at the time of drawing Form No.F while converting original plot into final plot has given a note in the 'Remark' column that the land of plot No.568 and 471 having the area of 5020 Sq.Mtrs. is designated to be used as common plot in the layout plan. The wording reads as under:
"The land as designated to be used as common plot in the layout as such the use is kept as it is. Right, if any, to use this land is retained as it is. No betterment is proposed to be leviable as it shows as common plot in the layout".
21. Perusal of the impugned order shows that variation has been made as per Section 70 of the Act. Section 70 of the Act reads as under:
70. Power to vary scheme on ground of error, irregularity or informality- (1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme.
(2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial, the State Government shall publish a draft of such variation in the prescribed manner.
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(3) The draft variation published under sub- section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of sub-section (3) of Section 40, the draft variation shall also contain such other particulars as may be prescribed.
(4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours.
(5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority.
(6) After receiving the objections under sub- section (5), the State Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification-
(a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the State Government, or
(b) make the variation with or without modification, or
(c) refuse to make the variation.
(7) From the date of the notification making the variation, with or without modification, such variation shall take effect as it were incorporated in the scheme.
22. Perusal of clause (1) of this aforementioned section shows that if the appropriate authority considers the scheme is defective on account of error, irregularity or infirmity, the appropriate authority may apply in writing to the State Government for the variation of the scheme.
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It will be necessary to keep in mind that the scheme has been finalized in the year 1985 and application for variation has been made in the year 1999,meaning thereby, the application could not be made to the appropriate authority at the relevant time as relevant authority ceased to exist after Town Planning Scheme is finalized. Perhaps, under these circumstances, the application has been moved to the State Government asking for variation. The State Government was within its power to follow the procedure for the variation if such required variation was not substantial. The petitioner has sought variation on the ground that there was an error in Form No.F at the time of finalizing the Preliminary Town Planning Scheme in the year 1984-85. However, close perusal of the Form No.F leaves no doubt that there was no such typographical or other error which could empower the State Government to vary the scheme by taking away the common plot Nos.568 and 471 meant for common use by the residents of the society. This Court is further of the confirmed view that the required variation was substantial as it has affected 116 plot holders of the society who could use these common plots for common purposes.
23. Coming to the procedure which has been followed for this variation also seems to be defective. Rule 35 of this Act lays down procedure which is reproduced as under:
35. Variation of the Scheme:- (1) The appropriate authority making an application for the variation of a scheme under sub-section (1) of Section 70 shall state in such application all the particulars in respect of the variation to be made.Page 14 of 17
HC-NIC Page 14 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT (2) If such variation affects and of the items of Form F or Form G an extract from Form F and a revised statement in Form G, together with a plan, showing the change or changes proposed to be made, shall be sent in duplicate along with the application made under sub-rule (1).
(3) The publication of the draft variation under sub-section (2) of section 70 shall be made by means of a Notification published n the Official Gazette and in one or more Gujarati newspapers circulating within the jurisdiction of the appropriate authority. Such notification shall also state that any person affected by the draft variation may communicate in writing any objection to such variation to the State Government (through the Collector) and the draft variation shall be open to the inspection of the public at the office of the appropriate authority during office hours. The State Government shall also supply the appropriate authority with such number of copies of the Notification, not exceeding fifteen as the appropriate authority may require and such copies shall be affixed by the appropriate authority in prominent places within the area affected by the scheme and more particularly, within the areas affected by the draft variation.
(4) When a variation is made under sub-section (6) of section 70, the Town Planning Officer, and where no Town Planning Officer is appointed, the Collector shall as soon as may be, forward a copy of such variation to the Superintendent of Land Records who shall correct the Surety Record affected by the variation.
24. There is a specific pleading in para - 10 of the petition by the petitioners which states that procedure prescribed for notification as required under the Act has not been followed. However, this contention has been denied by the respondents under the plea that no such objection has been raised at the relevant time. Nowhere in Page 15 of 17 HC-NIC Page 15 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT the affidavit in reply or anywhere in the petition, it has been worded by the respondents that required procedure has been followed as laid down in the Act. The notification was required to be published in the local newspapers having wide circulation. Neither any such publication has been placed on record nor any specific averment in this regard has been made.
25. It will be relevant to note that the scheme in question has been finalized in the year 1985. However, application for modification of the scheme has been moved in the year 1999 i.e. after a gap of about 12 years. No explanation is coming forward from the erstwhile owners as to what prevented them from moving the application at the relevant time or within the prescribed period. Moving such application after 12 years and without following procedure as provided under the Act, is nothing but an abuse of the powers given to the authorities. This is particularly so, when the authorities have moved for variation without application of mind and without taking into consideration the interest of 116 residence who could use the common plots for the common purposes.
26. Learned counsel for the respondents has relied upon the judgments, namely, (a) Murtujakhan Joravarkhan Babi (Nawab of Radhanpur Through His Power of Attorney Holder Mohmad Umarbhai Desai) (supra) (b) Saiyed Mohammed Abdullamiya Uraizee (since deceased by his successor) & Ors. (supra) and (c) Kashiben WD/O. Pitamber Devchand and Anr. (supra), the proposition of law contained in these judgments cannot be disputed. However, all these judgments Page 16 of 17 HC-NIC Page 16 of 17 Created On Sun Aug 13 10:40:25 IST 2017 C/SCA/9019/2000 JUDGMENT are for eviction of the tenants after their lands have gone into Town Planning Schemes. These judgments may not be helpful to advance the case of them. In the present case, we are concerned with the variation and these judgments may not be helpful to advance the case of the respondents. Similarly, respondents has relied upon Amravan Co. Op. Housing Society Ltd. (supra) this judgment may also not be applicable. As in the present case, the petitioner has challenged the variation in the Town Planning Scheme which was not a subject matter of the suit.
27. On the other hand, judgment passed by this Court in the case of Vasantben V.Golakiya (supra) is fully applicable to the facts of this case. In this judgment, before modifying the Town Planning Scheme, opportunity was not given to the original land owners to submit their objections and suggestions which amounts to violation of principles of natural justice as well as provisions required to be followed before such variation.
28. In view of the foregoing discussion, this petition is allowed. The Final Notification dated 17.4.2000 is quashed and set aside. Plot Nos.568 and 471 will be kept as common plots for the common use of the residents of the society. Rule is made absolute.
(MOHINDER PAL, J.) ashish Page 17 of 17 HC-NIC Page 17 of 17 Created On Sun Aug 13 10:40:25 IST 2017