Gujarat High Court
Sukeshi Vijaybhai Bhatt vs State Of Gujarat on 7 May, 2021
Equivalent citations: AIRONLINE 2021 GUJ 544
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/9466/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9466 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 9466 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==============================================================
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 ?
==============================================================
SUKESHI VIJAYBHAI BHATT
Versus
STATE OF GUJARAT
==============================================================
Appearance:
MR AB MUNSHI(1238) for the Petitioner Nos. 1,2,3
MR. GAURANG WAGHELA, ADVOCATE FOR CHINTAN K GANDHI(8600) for the
Respondent No. 2
Mr. ISHAN JOSHI, AGP (1) for the Respondent No. 1
MR. CHIRAYU MEHTA, ADVOCATE FOR MR DEVANG VYAS(2794) for the
Respondent No. 5
MR RITURAJ M MEENA(3224) for the Respondent No. 6
NOTICE SERVED BY DS(5) for the Respondent Nos. 3,4
MR. MAULIN RAVAL, SR. ADVOCATE RAVAL AND TRIVEDI
ASSOCIATES(9262) for the Respondent No. 2
==============================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 07/05/2021
CAV JUDGMENT
Page 1 of 27
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C/SCA/9466/2019 CAV JUDGMENT
1. Heard learned advocate Mr. A.B.Munshi for the petitioners, learned Assistant Government Pleader Mr. Ishan Joshi for the respondent No.1 State, learned Senior Advocate Mr. Maulin Raval for Raval & Trivedi Associates and learned advocate Mr. Gaurang Waghela for learned advocate Mr. Chintan Gandhi for respondent No.2, learned advocate Mr. Chirayu Mehta for learned advocate Mr. Devang Vyas for respondent No.5, learned advocate Mr. Rituraj Meena for respondent No.6 through video conference.
2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue writ of mandamus or writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned T.P Scheme being Town Planning Scheme, Ahmedabad24 (Maninagar Extension ) varied so far as it relates to Final Plot No.64/4 admeasuring 7289 sq.matrs.and be pleased to hold and declare that entry of reservation made in ''F'' form in the land of original F.P.No 64 and 71 is also illegal and be pleased to delete the same and be pleased to delete the name of appropriate authority and reference of post and telegraph department and slum clearance board from the ''F'' form of F.P.No.64/4 and be pleased to direct the authority to enter the name of the petitioners in ''F'' form and all other relevant record of F.P.No.64/4.Page 2 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT
(C) Your Lordships may be pleased to further hold and declare that if the subject land being F.P No.64/4 admeasuring 7289 sq.mtr.is required for any public purpose then in that case, the authorities may be directed to initiate the proceedings for acquisition of the same as per the provisions of the Right to Fair compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act,2013 and be pleased to direct the authorities not to disturb the possession and enjoyment of the petitioners and their family members over the subject land unless and until the petitioner are paid compensation determine as per the Land Acquisition Act, 2013 as per the prevalent market rate.
(D) During the pendency and till final disposal of the petition, by way of interim relief, Your Lordships may be pleased to direct service the respondent not to interfere with actual physical possession of the petitioners over the subject land being F.P.No.64/4 admeasuring 7289 sq.mtr. Of T.P.Scheme, Ahmedabad24 (Maninagar Extension) Varied and not to deal with the subject land in any manner whatsoever and pleased to direct the authorities to maintain the status quo in respect of the subject land.
(F) Any other relief deemed just and proper may pleased the granted in the interest of justice."
3. The petitioners and the family members are the owners of land bearing Final Plot No. 64/4 admeasuring 7289 sq. mtrs. alloted in T.P. Scheme Ahmedabad24(Maninagar ExtensionVaried) situated in Maninagar area of Ahmedabad city. According to the petitioners, the land in Page 3 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT question is mutated in the name of the petitioners and the family members in the revenue record in village Form no. 7/12 of village RajpurHirpur, Taluka Maninagar, District Ahmedabad.
4. The land admeasuring 18870 sq mtrs. situated in Survey no. 217 and land admeasuring 1720 sq mtrs. situated in survey no. 448, total land admeasuring 20590 sq mtrs. situated in Sim of village RajpurHirpur, Taluka Maninagar, District Ahmedabad belonged to one Chunilal Chhaganlal Bhatt who was predecessor in title of the petitioners and after his demise, the said lands were inherited by his legal heirs.
5. The aforesaid land of survey nos.217 and 448 was acquired by respondent no.2Ahmedabad Municipal Corporation (For short "AMC") by passing resolution no.63 of 1957 dated 20.11.1957. Notification under section 4 of the Land Acquisition Act, 1894 was issued on 19.12.1957 and notification under section 6 of the Land Acquisition Act, 1894 was issued on 5.8.1958. The three sons of the original owner predecessor in title of the petitioners challenged the acquisition proceedings by filing writ petition being Special Civil Application No.1014/1964 before this Court.
6. It appears that during the pendency of the Page 4 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT aforesaid petition, the AMC declared its intention to frame the Town Planning Scheme Ahmedabad24(Maninagar Extension) on 17.8.1964. Vide notification dated 15.4.1966, the State Government sanctioned the Draft Town Planning Scheme under section 28 of the Bombay Town Planning Act, 1954. Under the sanctioned Draft Town Planning Scheme, the land admeasuring 18870 sq. mtrs. of Survey No.217 was allotted Original Plot No.20 admeasuring 16507 sq mtrs. for which Final Plot No.62 admeasuring 1140 sq. mtrs and Final Plot NO.64 admeasuring 14591 sq mtrs. were allotted deducting 776 sq. mtrs and out of another plot of 2363 sq. mtrs. was allotted Original Plot No.20/1 against which Final Plot No.63 admeasuring 1974 sq mtrs. was allotted deducting 393 sq. mtrs; whereas for land admeasuring 1720 sq. mtrs of Survey no. 448, Original plot no. 35 was allotted against which Final Plot No.71 admeasuring 1359 sq. mtrs was allotted by deducting 363 sq. mtrs. Thus the position of land of survey no. 217 and 448 was as under :
S.No O.P Sq. mtrs. F.P.N Sq. Mtrs. TP Percentage .No O Deduction of the TP Deduction 217 2 16507 62 1140 776 4.70% 0 64 14591 2363 63 15731 393 16.6% 20/ 1974 1 18870 448 35 1720 71 1359 363 21.10% Total 20590 19062 1528 7.42% Page 5 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT
7. However, there was a remark with regard to reservation for slum clearance in respect of Final Plot Nos. 62, 64 and 71.
8. This Court allowed Special Civil Application No.1014/1964 vide judgment and order dated 6.10.1969 and set aside the land acquisition proceedings declaring notification dated 5.8.1958 issued under section 6 of the Land Acquisition Act, 1894 as invalid.
9. The AMC on 19.1.1973 declared its intention for variation of TP Scheme Ahmedabad24. The State Government vide notification dated 31.3.1975 sanctioned the varied Draft Town Planning Scheme and Town Planning Officer (For short "TPO") was appointed vide notification dated 5.6.1975.
10. As per the varied TP Scheme, following variation in Final Plot Nos.64 and 71 was made :
O.P Sq. Mtrs. F.P.No Sq. Mtr T.P. % of T.P No. Deduction Deduction sq. mtrs.64 14591 64/1 2663 7316 50
64/2 2625 (F.P.No. 64/4 for P
64/3 1987 and T and slum
---------- clearance)
7275
71 1357 71 1228 129 9.5
11. It appears that in addition to original
deduction, further deduction of 7316 sq. mtrs.Page 6 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT
of land was made from Final Plot No.64 and New Final Plot No. 64/4 admeasuring 7289 sq. mtrs is allotted to appropriate authority for Post and Telegraph and Slum Clearance. The TPO issued notice on 1.9.1975 under Rules 3 and 4 of the Bombay Town Planning Rules and on 16.9.1975, objections/suggestions of the landowners were heard. The Town Planning Committee of AMC passed a resolution dated 30.8.1977 to change the purpose of use of 4000 sq. yards of Final Plot No. 64/4 for telephone exchange and staff quarters with a condition to develop the same in three years. Entry No.17993 dated 10.11.1979 was mutated in respect of change in Final Plot Nos. 62, 63 and 64.
12. AMC passed resolution dated 29.1.1980 to authorise Municipal Commissioner to prepare proposal for variation of TP Scheme to deduct more than 25% land. Thereafter, AMC passed resolution dated 24.11.1980 to return the land deducted in excess of 25% to the landowners. TPO vide letter dated 19.1.1982 proposed to allot final plot no. 71 of 1228 sq. mtrs in lieu of 1357 sq mtrs by deducting further 129 sq mtrs.
in addition to original deduction effected in the sanctioned Draft Town Planning Scheme. On 16.9.1983, Revised Development Plan came into force in which Final Plot No. 64 was shown in residential zone.
Page 7 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT13. The predecessor in title of the petitioners made a representation dated 26.9.1986 with a request to release the land of survey no. 64/1 64/2 and 64/3 from reservation, however, TPO by letter dated 7.2.1987 informed that since final TP Scheme is not sanctioned by the Government, no modification would be proper.
14. TPO issued notice dated 27.2.1992 to the landowner under Rule 26(9) of the Gujarat Town Planning Rules, 1976 and thereafter, forwarded TP Scheme for sanction by the State Government. The State Government by notification dated 12.1.1993 sanctioned the varied TP Scheme.
15. According to the petitioners by varying TP Scheme, F.P. No.64/4, 7289 sq. mtrs is carved out and allotted to appropriate authority for public purpose of Post and Telegraph and Slum Clearance housing. It also appears that the Chief Post Master General, Gujarat by communication dated 28.7.1994 informed the authority that it was not possible for the department to purchase the lands for construction of departmental buildings due to limited funds. It appears that the Gujarat Slum Clearance Board by communication dated 5.7.1976 has made it clear that it was not possible to implement any project for construction of houses.
Page 8 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT16. It appears that notice dated 29/1/2005 under section 20(2) of the Gujarat Town Planning and Urban Development Act, 1976 (For short "the Act 1976") was served by the landowners to all the authorities with regard to their stand on non use of land of plot no. 64/4. BSNL as well as postal department also intimated to the father of the petitioners that there is no proposal to use the said land.
17. It appears that thereafter one of the sons of the original owner Chunnilal filed Special Civil Application No.6603/2008 with a prayer to declare that reservation of 3300 sq mtrs. of FP No.64/4 has lapsed as per the provisions of section 20(2) of the Act, 1976. The said petition was disposed of vide order dated 27.8.2008 with a direction to the authority to consider the representation of the petitioners. It appears that father of the petitioner along with the petitioners preferred representation from time to time. Petitioner no.1 and 2 filed Special Civil Application No.6537/2012 with a prayer to restrain AMC from disturbing the possession and for declaration about the reservation having lapsed of the said land for Final Plot No. 64/4 and to restore the possession. During the pendency of the petition, vide order dated 6.5.2014, this Court observed that it would be open for the petitioners to approach the Corporation with a representation Page 9 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT for dereserving the land.
18. Accordingly, the petitioners approached AMC and Town Planning Officer with a representation dated 22.5.2014 and thereafter petition was withdrawn as the representation was pending. AMC rejected the representation on 14.8.2014 on the ground that subject land being Final Plot No. 64/4 is vested in the appropriate authority in pursuance to the variation of the TP Scheme which has been sanctioned by the State Government vide notification dated 12.01.1993.
19. After rejection of the representation, father of the petitioner no. 1 and 2 approached the State Government by filing a detailed representation on 17.1.2017. However, AMC again reconsidered the said representation as per the instructions of the State Government but vide communication dated 13.2.2017 informed the Urban Development and Urban Housing Department that said land being Final Plot No. 64/4 is vested in the appropriate authority in pursuance to varied TP Scheme and therefore, decision is taken not to dereserve the plot. It appears that after the death of the father of the petitioners on 10.4.2018 and as petitioner no.2 is settled in USA, petitioner no.1 was faced with tax bill and distress warrant dated 31.12.2018 with demand of property tax of Rs.10,77,751/. The petitioners therefore, again made a representation on Page 10 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT 3.1.2019. AMC demolished certain existing construction of small rooms of Final Plot No.64/4 on the ground that AMC proposed to allot the land for public parking.
20. Learned advocate Mr. A.B. Munshi for the petitioners submitted that the respondent authorities have deducted more than 50% of the land from the land which was allotted Final Plot No. 64 under the sanctioned Draft Town Planning Scheme in the year 1973 by making variation in the sanctioned Draft TP Scheme and thereby the petitioners are deprived of the valuable land which was allotted as Final Plot no.64. It was pointed out that there was no provision at the relevant point of time nor there was any policy to deduct more than 50% of land in the TP Scheme.
21. Learned advocate Mr. Munshi submitted that when the TP Scheme was originally sanctioned on 1.9.1969 under the Bombay Town Planning Act, considering the provisions pertaining to statutory deduction applied for the entire Town Planning Scheme, proportionate land was deducted from the total land area and thereafter Final Plot was allotted. It was pointed out that Final Plot No. 64 was allotted to the petitioners or their predecessor after deducting proportionate land and therefore, there was no reason for the authority to propose to vary the scheme only Page 11 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT with a view to deduct more land from the land allotted in the Final Plot to the petitioners.
22. It was submitted by learned advocate Mr. Munshi that as the land acquisition proceedings were quashed and set aside by the Court and the authority wanted to acquire the land after paying the compensation at the market rate, but to deprive the petitioners from getting legitimate right of getting compensation with mala fide intention, the proposal for variation of TP Scheme was made which is contrary to the law at the relevant time.
23. It was submitted that in original Draft Sanctioned Scheme so far as Final Plot No. 64 was concerned, there was a deduction of only 4.7% as Final Plot nos.62 and 64 were allotted qua original plot No. 20 admeasuring 16507 sq. mtrs. comprising of 1140 sq. mtrs and 14591 sq. mtrs respectively and only deduction of 776 sq. mtrs. was made in the sanctioned Draft Town Planning Scheme. However, in varied TP Scheme, Final Plot No. 64 was further divided into three plots 64/1, 64/2 and 64/3 having total land admeasuring only 7275 sq. mtrs. and another separate plot no. 64/4 was created for land admeasuring 7316 sq. mtrs which was reserved for post and telegraph department and slum clearance board. It was therefore, submitted that section 40 of the Act, 1976 which has come into force from 19.6.1976 as originally stood did not Page 12 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT provide for deduction of 50% land. It was pointed out that section 40 was amended by the Act No. 4/1986 with effect from 6.2.1986 by which clause (jj) was inserted which provides for deduction of land to the extent of 10% or such percentage as near thereto as possible of the total area covered under the scheme for the purpose of sale for residential, commercial and industrial use. It was submitted that section 40 was further amended by Gujarat Act no. 2/1999 with effect from 9.3.1999 by which clause (jj) is substituted by inserting new clause to provide for deduction up to 40% comprising of 15% for roads, 5% for parks etc., 5% for social infrastructure and 15% for sale for appropriate authority because of which the total deduction reaches up to around 50%. It was therefore, submitted that the deduction of more than 50% of land from the allotted final plot of the petitioners by way of variation in the year 1993 is contrary to the provisions of the Act, 1976 because at the relevant time, there was no provision under which 50% land can be deducted of the particular land owner.
24. Learned advocate Mr. Munshi also submitted that the respondent authorities have adopted different standards of deduction of the land, as in case of the petitioners more than 50% land is deducted whereas in case of others deduction was only between 0 to 20% and as such the action of Page 13 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT the respondent authorities is arbitrary, illegal and in violation of Article 14 of the Constitution of India.
25. Learned advocate Mr. Munshi submitted that section 70 of the Act, 1976 empowers the authority to vary the scheme only in case the original TP Scheme is defective and section 76 provides for variation of TP Scheme by a subsequent scheme however final TP scheme cannot be varied by applying section 71 only to make variation in lands of particular land owner. It was therefore, submitted that in facts of the case, TP scheme is varied only for the particular land and therefore, the variation is contrary to section 71 of the Act, 1976. It was submitted that as per FormF prepared by the authority, Final Plot No.64/4 is shown to have been allotted to the appropriate authority for the purpose of post and telegraph and slum clearance board without making any reference that how much land was reserved for the post and telegraph and how much land was reserved for the slum clearance housing. It was therefore, submitted that the allotment was absolutely vague without any specification and such reservation is only an eyewash to deprive the petitioners from their valuable land. It was also submitted that both post and telegraph department and Slum Clearance Board have time and again made it clear that there was no Page 14 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT proposal for making any construction over the land in question. It was therefore, submitted that subject land of Final Plot No. 64/4 is not required for any public purpose but the respondent authorities only with a view to deprive the petitioners from valuable land initially initiated land acquisition proceedings and thereafter, on failure of such acquisition, contrary to the provisions of law, deducted more than 50% land in varied TP Scheme though in entire TP Scheme permissible average deduction is maximum 20% only.
26. Learned advocate Mr. Munshi further submitted that varied TP Scheme is in violation of Articles 14, 21 and 300A of the Constitution of India as the petitioners being citizen of the country cannot be deprived of his property without due process of law. It was therefore, submitted that the respondent authorities are required to pay adequate compensation to the petitioners for acquiring the land through reservation under the provisions of Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013 which has come into force with effect from 1.1.2014. It was therefore, submitted that the petitioners cannot be deprived of the land as well as the compensation. Reliance was also placed on circular dated 9.8.2011 of the AMC in respect of deduction of land while framing new Page 15 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT TP Scheme to point out that even in the year 2011, standard of deduction adopted for new TP Scheme is only 40% of the land while in case of petitioners, 50% of the land is deducted in TP Scheme of the year 1973 when there was no law to deduct the land more than 20% while framing the TP Scheme.
27. On the other hand learned Senior Advocate Mr. Maulin Raval appearing for the respondent AMC submitted that the petition is not maintainable because father of the petitioner no.1, his brother and other persons had already preferred Special Civil Application No.6603/2008 for the same reliefs which are prayed in this petition and thereafter Special Civil Application No.6537/2012 was also preferred to declare that the reservation of the land in question has lapsed under section 20(2) of the Act, 1976. However, the owners of the property at the relevant time did not make any representation and thereafter second round of litigation has been started by the petitioners by changing the name of the petitioners.
28. It was submitted by learned Senior Advocate Mr. Raval that father of the petitioners who preferred Special Civil Application No.6537/2012 did not press the same in order to make a representation which was rejected by the authorities and thus this is the third round of Page 16 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT litigation by the petitioners who are legal heirs and representatives of the petitioner in Special Civil Application No.6537/2012. It was submitted that Estate department of AMC has already taken over the possession of Final Plot No.64/4 admeasuring 7289 sq. mtrs on 17.3.2017 and the same was informed to Assistant City Planner (City Planning department) on 5.7.2017 by Estate department. A board is also put up about the ownership of AMC on the land in question. It was submitted that the Additional City Engineer has proposed to build Water Distribution Station on the part of land in question for the public purpose and for that vide order no.25 dated 1.5.2019, approval has also been given by the Municipal Commissioner for the change of purpose. Learned Senior Advocate Mr. Raval in support of his submission has relied upon the following decisions :
i) Chandragauda Ramgonda Patil v.
State of Maharashtra reported in
1996(6) SCC 405.
ii) Mohanlal Nanabhai Choksy v. State of Gujarat reported in 2011 (3) GLR 1890.
iii) Vasudev Kanchanlal Pandya v. State of Gujarat reported in 2017 JX (Guj) 563.
iv) Surat Panjrapole v. State of Gujarat reported in AIR 2001 Guj 316. Page 17 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT
v) Kanjibhai Dahyabhai Malsattar v.
State of Gujarat reported in 2005(2) GLR 1649.
vi) Babulal Badriprasad Varma v.
Surat Municipal Corporation reported in 2008(12) SCC 401.
vii) Jiviben Hansrajbhai Patel Wd/o Hansrajbhai Devjibhai Patel v. State of Gujarat through Secretary reported in 2011(2) GCD 1460.
viii) Satyadev Parasnath Pandey v. State of Gujarat reported in 2015 (2) GLR 1475.
ix) Ramanbhai Hargovinddas Limbachia v. State of Gujarat reported in 2016(3) GLR 2695.
x) Bal Shikshan Samiti Trust v. State of Gujarat reported in 2011(3) GLR 2681.
xi) Gopalbhai Devabhai Patel v. State of Gujarat reported in 2017 JX (Guj)
725.
29. Having heard the learned advocates for the respective parties and having gone through the materials on record, it emerges that the land in question belonging to the father of the petitioners was sought to be acquired in the year 1957 under the land acquisition Act by initiating land acquisition proceedings for the purpose of slum clearance housing board and road. However, thereafter, TP Scheme was proposed by the AMC in the year 1966. At that point of time when the State Government Page 18 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT sanctioned the Draft Town Planning Scheme in the year 1966, there was no question of any reservation of the land for the purpose of slum clearance and housing board and road as the land acquisition proceedings were already initiated which were under challenge before this Court. When this Court quashed and set aside the land acquisition proceedings in the year 1969 by allowing Special Civil Application N.1014/1964, AMC thought it fit to vary the Town Planning Scheme so as to include the land which was proposed to be acquired under reservation for public purpose and accordingly Final Plot no. 64 was divided into four parts being F.P. Nos. 64/1, 64/2 and 64/3 which were allotted to the joint land owners and Final Plot No. 64/4 was carved out admeasuring 7316 sq. mtrs as reserved plot for public purpose.
30. It also emerges from the record that the State Government sanctioned the varied Draft TP scheme by notification dated 31.3.1975 published in the gazette on 10.4.1975. Thus the varied Draft TP Scheme was sanctioned prior to coming into force of the Act, 1976. In such circumstances, the contention raised on behalf of the petitioners that there is a deduction of more than 50% of the land is not tenable, as such land was reserved for public purpose for post and telegraph department and slum clearance housing at the relevant time. It is well settled Page 19 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT legal position and it is a trite law with regard to the legality and effect of sanctioned Town Planning Scheme under the Bombay Town Planning Act as well as Gujarat Town Planning Act and this Court as well as Supreme Court has time and again held that once the Draft Scheme is sanctioned by the State Government it partakes the character of statute. Following decisions of this Court as well as Supreme Court are referred to for such settled legal position :
1) This Court in case of Kanjibhai Dahyabhai Malsattar v. State of Gujarat (supra) held that TP Scheme would become final under section 65 read with section 67 of the Act, 1976 and once the Scheme has become final, all the lands would vest in Area Development Authority free from all encumbrances and as such, the petitioners are required to vacate the land.
2) In case of Babulal Badriprasad Varma v. Surat Municipal Corporation (supra), the Apex Court held that, in facts of the said case, the appellant through his conduct has waived his right to equitable remedy as it would operate as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the Scheme in question has attained finality as a result of the appellant's inaction.Page 20 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT
3) This Court in case of Jiviben Hansrajbhai Patel Wd/o Hansrajbhai Devjibhai Patel v. State of Gujarat through Secretary (supra) held that once Final Plot is reserved for public purpose, the contention of the petitioner in the said case for allotment of lesser area of Final Plot was rejected on the ground that the Scheme has attained finality and the matter to be considered only with respect to enforcement of the Scheme.
4) In case of Satyadev Parasnath Pandey v. State of Gujarat (supra), this Court held that provisions of section 48A of the Act, 1976 clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. It was held that doctrine of proportionality requires that the balance has to be stuck between the individual claim and the right of the society and accordingly when the land is reserved for public purpose, the petitioner cannot claim any compensation from the respondent authority.
5) In case of Ramanbhai Hargovinddas Limbachia v.
State of Gujarat (supra), it was held by this Court that the petitioners have no locus to raise the objection to purchase the land after sanctioning of the Town Planning Scheme. Admittedly, in facts of the case, father of the petitioners purchased the land after the sanctioning of the Town Planning Scheme in the year 1975.
Page 21 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT31. In facts of the present case, two earlier Special Civil Applications being Special Civil Application No.6603/2008 and Special Civil Application No.6537/2012 were filed for the same issues which have been raised by the petitioners with ultimate purpose of not restraining the respondent authorities from taking over the possession of the land of Final Plot No. 64/4. Final Plot No. 64/4 is part of the Final Town Planning Scheme which has been sanctioned and has achieved finality as per FormF under Rules 17 and 29 of the Rules,1976 showing redistribution and valuation statement available on record produced along with the affidavit in reply filed on behalf of the respondent corporation and it is clear that the petitioners have been allotted land in the varied final town planning scheme no.24(Manipur Distribution varied) and land admeasuring 7289 sq. mtrs of Final Plot No. 64/4 is provided for post and telegraph and slum clearance housing. The scheme has thus become final and therefore, no interference can be made as the same has become part of the statute. More particularly, when in the earlier round of litigation, this Court has not entertained the petition on merits by directing the petitioners to approach the respondent authorities to make representations which ultimately were rejected in view of the sanctioned Final TP scheme by the State Government. The prayers made by the petitioners Page 22 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT for quashing and setting aside the TP Scheme so far as it relates to Plot No. 64/4, cannot be accepted in view of the fact emerging from the record that the varied Final TP Scheme NO. 24 was sanctioned by the State Government in the year 1993 and thereafter, the predecessor of the petitioners have already been allotted Final Plot No. 64/1, 64/2 and 64/3 which have never been objected by them. In such circumstances, the petitioners cannot continue to possess the land of Final Plot No. 64/4 which is earmarked as reserved plot for public purpose in the varied TP Scheme which is already sanctioned. In such circumstances, as held by this Court as well as Supreme Court in the following decisions, no relief can be granted to the petitioners by setting aside the sanctioned Final Scheme only qua final plot No. 64/4 :
1) The Supreme Court in case of Chandragauda Ramgonda Patil v. State of Maharashtra (supra) held that restoration of unutilised land acquired for public purpose cannot be granted as it is axiomatic that the land acquired for a public purpose would be utilised for any other public purpose though use of it was intended for the original public purpose and it is not intended that any land which remained unutilised, should be restituted to the original owner.Page 23 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT
2) In case of Mohanlal Nanabhai Choksy v. State of Gujarat (supra), Division Bench of this Court held that land in the said case was reserved and has continued to be reserved for public purpose of constructing vegetable market by Surat Municipal Corporation even under the final development plan which is binding to all authorities situated in the area of development plan in terms of section 17 of the Act, 1976. It was further held that land needed for the purpose of Town Planning Scheme or Development Plan has to be deemed to be land needed for public purpose within the meaning of Land Acquisition Act in terms of section 107 of the Transfer of Property Act. While interpreting sections 77 and 78 of the Bombay Provincial Municipal Corporation Act, 1949, scope and extent of term "property vested in corporation", it was held that the said provision intended to empower the Commissioner to initiate acquisition of any immovable property or any easement affecting any immovable property vested in the Corporation and as such taking acquisition of land is not in any way barred or excluded by provisions of section 78 of the Act. In facts of the case when the varied Town Planning Scheme as sanctioned by the State Government, clearly provides that the land admeasuring 7356 sq. mtrs of Final Plot No. 64/4 is reserved for post and telegraph and slum clearance housing, then it cannot be said that land in question is not Page 24 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT utilised for the said purpose and can be restored or for that purpose any compensation is required to be paid to the petitioners.
3) Division Bench of this Court in case of Vasudev Kanchanlal Pandya v. State of Gujarat (supra) held that there was no mala fide or colorable exercise of powers by the authority as the lands in the said case was part of the Town Planning Scheme. It was held that once the land is acquired for a public purpose and the compensation is paid and the possession is taken over, the acquired land absolutely vest in the acquiring body and thereafter the original landowners have no right, title and interest in the lands acquired. Division Bench relied upon the decision of supreme Court in case of C. Padma & ors. v, Dy. Secretary to the Govt. of T.N. & Ors reported in (1997) 2 SCC 627, wherein the Apex Court held that once the acquired land having vested in the State Government after paying compensation to the claimants, the claimants are not entitled to restitution of the possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for any other purpose. In case of Chandragauda Ramgonda Patil & anr. v. State of Maharashtra & ors. reported in (1996) 6 SCC 405, the Supreme Court held that the land acquired for a public purpose can be utilised for any other public purpose and once Page 25 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT the possession of the land in taken and land is vested in Municipality free from all encumbrances, restitution of surplus land to the erstwhile owner cannot be ordered.
32. With regard to the contention raised by the petitioners of deduction of land more than 50% is concerned, in the facts of the case, the petitioners and the predecessor in title were originally allotted Final Plot No. 64 admeasuring 14591 sq. mtrs which was sought to vary by the Varied Town Planning Scheme which is already sanctioned and out of that plot no. 64, four plots were partitioned and plot no. 64/4 admeasuring 7316 sq. mtrs was reserved for post and telegraph and slum clearance. The entire exercise was completed and the varied town planning scheme was sanctioned way back on 31.3.1975 by the State Government and now the petitioners after more than 40 years pray to quash and set aside the Town Planning Scheme qua the Plot no. 64/4. Such a prayer of the petitioners cannot be granted more particularly, when the provisions of the Act, 1976 were not in force when varied Draft Town Planning Scheme was sanctioned in the year 1975. The petitioners or their predecessors have not raised any objection at the relevant point of time and only when possession of the land in question was sought to be taken, it was resisted by the original owners in the year 2008 and Page 26 of 27 Downloaded on : Fri May 07 23:39:26 IST 2021 C/SCA/9466/2019 CAV JUDGMENT thereafter by the father of the petitioners in the year 2012 but inspite of rejection of the representation made by them, the petitioners continued to be in possession of the land in question which was ultimately taken over by the Municipal Corporation in the year 2017 as averred in the affidavit in reply.
33. In view of above facts emerging from the record, the petitioners cannot be granted any benefit of either compensation or restoration of land in question visavis the use of land to be made for the public purpose by the respondent corporation. It is also not in dispute that the land has continued to be vested for the public purpose as per FormF which is part of the sanctioned varied TP Scheme no. 24. The petitioners have never applied for variation of such varied Town Planning Scheme which has become part of the statute. In such circumstances, the prayers made by the petitioners to quash and set aside the varied Town Planning Scheme qua Final Plot No. 64/4 cannot be acceded to.
34. The petition is therefore, liable to be dismissed and is accordingly dismissed with no order as to costs. Rule is discharged. Interim relief, if any stands vacated. Civil Application also stands disposed of.
(BHARGAV D. KARIA, J.) Raghunath Nair/AMAR RATHOD...
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