Gujarat High Court
Ladhabhai Gopaldas Patel vs Ahmedabad Municipal on 26 April, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
LADHABHAI GOPALDAS PATEL....Appellant(s)V/SAHMEDABAD MUNICIPAL CORPORATIO C/LPA/249/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 249 of 2013 In SPECIAL CIVIL APPLICATION NO. 2575 of 2012 with LETTERS PATENT APPEAL NO. 278 of 2013 In SPECIAL CIVIL APPLICATION NO. 2738 of 2012 with LETTERS PATENT APPEAL NO. 280 of 2013 In SPECIAL CIVIL APPLICATION NO. 3081 of 2012 with CIVIL APPLICATION NO. 2744 of 2013 In LETTERS PATENT APPEAL NO. 249 of 2013 with CIVIL APPLICATION NO. 2860 of 2013 In LETTERS PATENT APPEAL NO. 278 of 2013 with CIVIL APPLICATION NO. 2871 of 2013 In LETTERS PATENT APPEAL NO. 280 of 2013 ============================================= LADHABHAI GOPALDAS PATEL....Appellant(s) Versus AHMEDABAD MUNICIPAL CORPORATIO & 1....Respondent(s) ============================================= Appearance: LPA No.249 of 2013 : Mr.SHALIN MEHTA, SENIOR ADVOCATE WITH Mr.MAULIN G PANDYA, ADVOCATE for the Appellant(s) No. 1 LPA No.278 of 2013 : Mr.M.C. BHATT, ADVOCATE WITH Mr.VIKRAM J. THAKORE for the appellants. LPA No.280 of 2013 : Mr.P.H. BUCH for the appellant. CIVIL APPLICATION No.2744 OF 2013 : Mr.SHALIN MEHTA, SENIOR ADVOCATE WITH Mr.MAULIN G PANDYA, ADVOCATE for the applicant. CIVIL APPLICATION No.2860 OF 2013 : Mr.M.C. BHATT, ADVOCATE WITH Mr.VIKRAM J. THAKORE for the applicants CIVIL APPLICATION No.2871 OF 2013 : Mr.P.H. BUCH for the applicant. In all the above matters : Mr.PRASHANT G. DESAI, SENIOR ADVOCATE with Mr.DHAVAL G NANAVATI, ADVOCATE for Ahmedabad Municipal Corporation. ============================================= CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 26/04/2013 COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) Heard learned senior advocate Mr.Shalin Mehta appearing with Mr.Maulin G. Pandya for the appellant in LPA No.249 of 2013 and for the applicant in Civil Application No.2744 of 2013. Heard learned advocate Mr.M.C. Bhatt appearing with Mr.Vikram J. Thakore for the appellant in LPA No.278 of 2013 and for the applicant in Civil Application No.2860 of 2013.. Heard learned advocate Mr.P.H. Buch for the appellant in LPA No.280 of 2013 and for the applicant in Civil Application No.2871 of 2013. Also heard learned senior advocate Mr.Prashant G. Desai appearing with Mr.Dhaval G. Nanavati for Ahmedabad Municipal Corporation in all the above matters.
2. The appellants are before this Court being aggrieved by judgments and orders passed by the learned Single Judge in the respective Special Civil Applications, viz. Special Civil Application No.2575 of 2012, which gave rise to LPA No.249 of 2013; judgment and order passed in Special Civil Application No.2738 of 2012, which gave rise to LPA No.278 of 2013; and judgment and order passed in Special Civil Application No.3081 of 2012, which gave rise to LPA No.280 of 2013. All these matters are having, if not identical, similar questions involved and the question is whether private interest can be given upper hand over the interest of general public. The second question which can be said to be arising for consideration of this Court is whether a particular phrase used in one particular law, if used in another piece of legislation is to be given the same interpretation without being mindful of the fact that one piece of legislation is dealing with one particular right of the individuals and is meant for achieving one particular goal. Whereas another piece of legislation is to achieve altogether a different object and to govern another set of rights of the persons affected thereby.
To be precise, the emphasis of the learned advocates appearing for the appellants was that the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as BPMC Act ) provides for special notice being given while providing for street line. In this regard the learned advocates for the appellants invited attention of the Court to section 210 of the BPMC Act. The learned advocates, in specific, invited attention of the Court to clause (b) of subsection (1) of section 210 of the BPMC Act. For ready perusal the same is reproduced hereinbelow:
from time to time, but subject in each case to the previous approval of the Standing Committee, prescribe a fresh line in substitution for any line so prescribed or for any part thereof;
Provided that such approval shall not be accorded unless, at least one month before the meeting of the Standing Committee at which the matter is decided, public notice of the proposal has been given by the Commissioner by advertisement in the local newspapers and special notice thereof, signed by the Commissioner, has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed and until the Standing Committee has considered all objections to the said proposal made in writing and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting. (emphasis supplied) The submission with all vehemence at their command made by the learned advocates for the appellants is that a similar phrase is used in the Land Acquisition Act 1894, wherein subsection (2) of section 6 provides as under:
Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial devision in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (emphasis supplied) The learned advocates for the appellants relied upon various decisions of the Hon ble the Apex Court as well as this Court and submitted that consistently it is held by the courts that such special notice is a mandatory requirement and non compliance of such mandatory requirement vitiates the exercise of power and it amounts to violation of principles of natural justice and it breaches the rights of persons affected by such actions of the authorities.
3. Prima facie, this contention was appearing to be acceptable, but the learned senior advocate appearing for Ahmedabad Municipal Corporation invited attention of the Court to decision of the Hon ble the Apex Court in the matter of Girnar Traders Vs. State of Maharasahtra, reported in (2011) 3 SCC 1. It is a decision of the Constitutional Bench consisting of five Hon ble Judges of the Hon ble the Apex Court presided over by the Hon ble the Chief Justice of India. The learned senior advocate for the Ahmedabad Municipal Corporation invited attention of the Court to para 191 of the said judgment, wherein the Hon ble the Apex Court very succinctly drew distinction between the Land Acquisition Act on one hand and MRTP Act [Maharashtra Regional and Town Planning Act, 1966 (37 of 1966)] on the other. Para 191 of the said judgement reads under:
191. Having said so, now we proceed to record our answer to the proposition referred to the larger Bench as follows:
For the reasons stated in this judgment, we hold that the MRTP Act is a self-contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of Chapter VII of the MRTP Act but with a specific exception that the provisions of the Land Acquisition Act insofar as they provide different time-frames and consequences of default thereof including lapsing of acquisition proceedings cannot be read into the MRTP Act. Section 11-A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under Chapter VII of the MRTP Act. (emphasis supplied) In this regard the learned senior advocate appearing for the Ahmedabad Municipal Corporation invited attention of the Court to para 67 of the judgement, wherein the Hon ble the Apex Court said thus,
67. Having stated the scheme of the two Acts, let us proceed to examine if there are marked distinctions between the statutory provisions of the two Acts and, if so, what is the scope of the same.
Sl.
No. The Land Acquisition Act The MRTP Act 1 The Land Acquisition Act is a legislation regulating only the acquisition of land for a public purpose and payment of its compensation. In other words, it is a legislation of acquisition alone and is in no way concerned with planned development.
The primary object of the MRTP Act is regional/ town planning and development of the entire State of Maharashtra. The function of the authorities constituted under the Act is planning. The purpose of the Act primarily is planned development and acquisition is incidental thereto.
(emphasis supplied) 2 The lands are to be acquired only for a public purpose in terms of the notification under section 4.
The Act deals with and provides only for land required, reserved or designated for planned development.
4. The learned senior advocate for Ahmedabad Municipal Corporation also invited attention of the Court to the observations made in para 84 about the scope of the MRTP Act, the purpose and object to be achieved by the MRTP Act. Para 84 reads as under:
84. The MRTP Act besides being a code in itself has one predominant purpose, i.e. planned development. Other matters are incidental and therefore, should be construed to achieve that predominant object. All the provisions of the Land Acquisition Act cannot be applied to the MRTP Act. The provisions of the MRTP Act have to be implemented in their own field. As far as the provisions relating to preparation, approval and execution of the development plans are concerned, there is hardly any dependency of the State Act on the provisions of the Land Acquisition Act. It may be necessary, sometimes, to acquire land which primarily would be for the purpose of planned development as contemplated under the MRTP Act. Some of the provisions of the State Act have specifically referred to some of the provisions of the Land Acquisition Act but for the limited purpose of acquiring land. Thus, the purpose of such reference is, obviously, to take aid of the provisions of the Central Act only for the purpose of acquiring a land in accordance with law stated therein rather than letting any provision of the Central Act hamper or obstruct the principal object of the State Act, i.e. execution of the planned development.
(emphasis supplied) The learned senior advocate for Ahmedabad Municipal Corporation also invited attention of the Court to para 85 of the said judgement, which reads as under:
85. There can be hardly be any hesitation in concluding that the MRTP Act is a self contained code and does not lose its colour or content of being a self contained code merely because it makes a reference to some of the provisions of the Land Acquisition Act for acquisition of land for the purpose of the MRTP Act and determination of compensation in that behalf. The referred provisions of the Land Acquisition Act may only be taken recourse to that limited extent, within the extensive framework and for the purpose of the MRTP Act. Therefore, the MRTP Act is an Act which completely provides for various steps in relation to execution of its object, constitution of various authorities to implement the underlying scheme of planned development, machinery for interested persons to raise their claims for adjudication under the provisions of this Act or at best to an authority referred to in the Act. Thus, we have no hesitation in holding that the MRTP Act is a complete code itself. (emphasis supplied)
5. With the aforesaid observations, the Hon ble the Apex Court made it clear that even when the phrase used qua the subject notice is in similar terms, in the Land Acquisition Act and in the Town Planning Act a similar strict interpretation is not required to be given to the phrase used in the Town Planning Act.
At this juncture, it will be appropriate to refer to the observations made by the learned Single Judge, wherein he said that,
36. .. .. It is further stated in the said notice that on the area situated in South Zone i.e. from Shah-E-Alam Toll Naka to Geeta Mandir S.T. Stand Char Rasta Via Astodia Darwaja as well as from Geeta Mandir Char Rasta to Petrol Pump there is existing road and now it is decided to propose a roadline. It is further stated that the maps of existing and the proposed roadline are placed for inspection at the office of Head Draftsman of Estate, Estate Drawing Department and in the Office of Estate/TDO Department (Central Zone) and the concerned persons can inspect the same. It is further stated in the notice that if any person has objections for the same, such objections shall be filed within a period of one month from the date of publication of the said notice to the Estate Officer or to the Deputy Estate Officer, whose addresses were mentioned in the notice. It is also mentioned in the said notice that the notice is also placed on the website of the Ahmedabad Municipal Corporation being www.egovamc.com.
6. Similarly, the learned Single Judge has observed in para 39 as under:
.. .. As recorded hereinabove, the commissioner has given public notices in two Gujarati daily newspapers, which have wide circulation in the city of Ahmedabad and over and above such notice has also been placed on the website of the respondent-Corporation. No individual notice is contemplated under Section 210(b) of the Act. .. .. (emphasis supplied)
7. This Court is of the opinion that exercise cannot be found fault with for non compliance of the provisions regarding issuance of special notice.
8. Besides, what is required to be considered by this Court is that the whole exercise started in the year 2011. The learned senior advocate for Ahmedabad Municipal Corporation submitted that the procedure for substituting roadline under section 210(1)(b) of the BPMC Act, started on 10.01.2011. The learned senior advocate for Ahmedabad Municipal Corporation submitted that proposal was sent to the Deputy Commissioner on 10.01.2011 for proceeding under sections 210 and 212 of the BPMC Act and discussion was held with Deputy Commissioner on 24.01.2011. The learned senior advocate for Ahmedabad Municipal Corporation submitted that thereafter Zonal Officer, South Zone wrote letter to the Estate Officer in Central Office for prescribing roadline on 24.02.2011. On the same day, the letter was received by the Central Estate Department. The Estate Officer and the Deputy Commissioner (Estate) prepared a note on 14.03.2011 and the draft of the notice was prepared and sent for approval on 18.03.2011. The said notice was published on 24.03.2011 in two daily newspapers and also placed on the website of the Corporation on 29.03.2011.
The learned senior advocate for the Corporation submitted that in such matters, the conduct of the petitioner is the relevant factor, more particularly, when it is borne out from the record that attempt on the part of the petitioners is to stall the entire project of BRTS Corridor being taken through this area. The learned senior advocate for the Corporation submitted that the Corporation did not receive any objection; therefore, the matter was placed before the Standing Committee. The Standing Committee passed Resolution on 07.05.2011 allowing prescription of roadline under section 210(1)(b) of BPMC Act and to do related work for the same. The Commissioner was given power by the said resolution. The learned senior advocate for the Corporation submitted that it is thereafter, the Commissioner issued order for prescribing roadline in substitution of the existing roadline by order dated 23.05.2011. The learned senior advocate for the Corporation submitted that all these facts are placed by the Corporation by way of affidavit filed on behalf of the Corporation in Special Civil Application No.3081 of 2012. The learned senior advocate for the Corporation submitted that it is thereafter, notice under section 212(1)(a) of the BPMC Act was given to the appellant in LPA No.249 of 2013 in SCA No.2575 of 2012 on 02.09.2011. The said notice was replied by the addressee on 08.09.2011. The said reply was considered by the Corporation on 07.01.2012. It is thereafter, that the matter was placed before the Standing Committee along with other objections received and dealt with by the Corporation. Finally, the Standing Committee gave its approval on 19.01.2012. Final notice under section 212 of the BPMC Act was given on 24.01.2012. The learned senior advocate for the Corporation submitted that the fact that no objections were filed is suggestive of the fact that the petitioners were not serious about taking any objection against the actions taken by the Corporation. Therefore, at this belated stage any attempt to stall the project will be against the interest of general public, and such an attempt is required to be rejected by this Court.
The learned senior advocate for the Corporation submitted that the relevant part of the project is for more than 1 KM, to be precise 1 KM and 300 meters approximately. Except the present petitioners/ appellants, qua all other properties, roadline is already implemented and work is already completed. It is only qua these properties the petitioners are able to stall progress of the project of laying down BRTS corridor.
9. The learned senior advocate for the Corporation invited attention of the Court to decision of the learned Single Judge of this Court in the matter of Premjibhai D. Karane Alias Babubhai Vs. Ahmedabad Municipal Corporation, reported in 1992 (2) GLH 230. The learned senior advocate for the Corporation submitted that the learned Single Judge considered various provisions in para 5 of the judgment and after considering them has observed as under:
7. The concept of prescribing a line or a regular line or a street line is not new. A Civic body in order to secure uniformity of appearance, draw a line on the sides of the road, and projection of building or part thereof beyond the "line" is not allowed. It may have some relevance with the width of the road, but it does not necessarily or solely depends on the width alone. There are number of factors which are required to be considered by the authority in prescribing the street line.
This power of a Civic body has been recognized by the Legislation under section 210 of the BPMC Act. Prescribing a "line" is a distinct, independent statutory power of the Commissioner under the BPMC Act. It is an obligatory power in public interest. It is significant to notice that while there is a provision of drawing a street line or a regular line under the BPMC Act, there is no such provisions in the Town Planning Act. Under the Act, the Town Planning Scheme requires various items to be prescribed, which includes "road" but not the "regular line." The Legislature in its the wisdom has not provided any provisions with respect to regular line or street line in the Town Planning Act and has conferred this power on one of the most important executive authority of the scheme, i.e. Municipal Corporation. Thus, there is no conflict in powers under section 210 of the BPMC Act and sanctioned scheme under the Act and as such the question of altering or variation of the scheme does not arise, whether it is a case of width of the road or shortening the size of the final plot. Viewing from another angle also, a Regular line or street line brings all the buildings on the road in line. It being in larger public interest, any individual building or part thereof even on the final plot under the sanctioned scheme must give way to the line prescribed under the Act. (emphasis supplied)
10. The learned senior advocate for the Corporation submitted that this will give answer to the contention raised by learned advocate Mr.Bhatt for the appellant in LPA No.278 of 2013, wherein he is alleging that the Corporation is giving discriminatory treatment to the petitioners of SCA No.2738 of 2012, which gave rise to LPA No.278 of 2013. Learned advocate Mr.Bhatt submitted that when it comes to providing the roadline between Final Plot No.71 on one hand and Final Plots No.104/1 and 103 on the other, similarly, at Final Plot No.68 and between Final Plots No.101/2 and Final Plot No.101/1; road is not widened equally on both sides. Learned advocate Mr.Bhatt submitted that special treatment is given to land bearing Final Plot No.103, viz. Chhipa Kabrastan (cemetery). The learned senior advocate for Ahmedabad Municipal Corporation made available for perusal sheets providing details of widening of road all along the length of more than 1 KM. Prima facie, this Court is not able to notice any such discrimination at the hands of the Corporation, whereby a special treatment is given to any of the property-holders. May be that while widening the road, to maintain straight line, the acquired land may be a little lesser on one side and a little more on the other. But to accuse the authorities of having discriminatory approach qua Final Plot No.71 on one hand and Final Plots No.104/1 and 103 on the other is not found with any substance and therefore, it does not require acceptance at the hands of this court.
11. The learned senior advocate for the Corporation next relied upon decision in the matter of Babulal Badriprasad Varma Vs. Surat Municipal Corporation and others, reported in 2008 (3) G.L.H. 137. The learned senior advocate for the Corporation submitted that this judgement is cited so as to support the submission that the conduct of an individual is relevant factor while considering the question of grant of any relief prayed for. In this regard the learned senior advocate for the Corporation invited attention of the Court to the observations made in paras 32 and 33 of the judgment, which read as under:
It is not in dispute that:
(a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it.
(b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act.
In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment.
33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same. (emphasis supplied) In Halsbury's Laws of England, Volume 16(2), 4th edition, para 907, it is stated:
"The expression `waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it"
The Hon ble the Apex Court then considered various decisions on the point of waiver. The learned senior advocate for the Corporation submitted that what is important about this judgement is that the Hon ble the Apex Court has observed in no uncertain terms that, .. .. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief .. ..
The learned senior advocate for the Corporation submitted that in the present case as set out hereinabove though the procedure for substituting roadline started as back as on 10.01.2011, till date objections were not filed by the petitioners much less at the relevant point of time. Whatever objections filed were considered by the Corporation in accordance with law. Relevant parts of the above judgment are reproduced hereunder:
23.
We would, however, assume that it was obligatory on the part of the State to serve a special notice upon the appellant. The question, however, would be : what would be the consequence of non-compliance thereof vis-a- vis the conduct of the appellant himself?
A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation.
Xxx xxx
27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain.
In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-`- vis for the purpose of re-allotment thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. It was on that legal principle, this Court in State of Gujarat v. Shantilal Mangaldas & Ors. [1969 (3) SCR 341], opined that when a development is made, the owner of the property gets much more than what would have he got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning.
xxx
29. When a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority, the State Government and other authorities concerned in preparing and making the final Town Planning Scheme, the same should be considered to be exhaustively. [See Maneklal Chhotalal & Ors. v. M.G. Makwana & Ors. [(1967) 3 SCR 65] In Maneklal Chhotalal (supra), it was held:
"49. Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Article 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Article 14 is violated, is also not acceptable."
[See also Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. JT 2008 (4) SC 10 2008 (4) SCALE 278]
12. The learned advocates appearing for the appellants submitted that this decision of the Hon ble the Apex Court has no application to the facts of the present case, because there is no question of waiver in the present case. The Court is not able to accept the submissions made by the learned advocates for the petitioners, because, every time it is not necessary that waiver should be in clear terms, by a clear act on the part of the party. Waiver can be in any mode other than specific act of waiver. In the present case the facts reveal that the petitioners did not agitate their right at the relevant time. Thus, it is necessary for this Court to infer that there was waiver on the part of the petitioners/ appellants.
13. The learned senior advocate for the Corporation submitted that it has been the consistent practice followed by courts that individual rights are always required to give way to the right of general public. The learned senior advocate for the Corporation invited attention of the Court to Division Bench judgement of this Court in the matter of Kiritbhai Nandvadan Bhatt and others Vs. Ahmedabad Municipal Corporation and others, reported in 1996 (1) G.L.H. 905, wherein the Hon ble Division Bench of this Court observed as under:
9. As is evident from what has been stated hereinabove, the proposal of transferring Plot No. 187 in favour of respondents Nos. 4 and 5 in lieu of Plot No. 463 is with a view to upgrade the existing slums. The petitioners do not have any direct personal interest in any of the two parcels of land and when the authorities are seeking to implement a scheme, which is in the interest of general public and specially as a measure of welfare for the economically backward and poor, on the facts and in the circumstances of the present case, we do not think that this is a proper case where this Court should exercise its extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India even if it be assumed that there has been a procedural lapse on the part of the authorities. Once it is conceded, as it must be in the present case, that the Corporation can exchange Plot No. 187 with Plot No. 463, whereby the Corporation gets a larger area of land and, as a result thereof, is able to upgrade the facilities for the slum dwellers, the court would not be justified in interfering under Article 226 of the Constitution of India and setting at naught the said proposal, specially when both the Corporation as well as respondents Nos. 4 and 5, who owned Plot No. 463 and to whom Plot No. 187 is being transferred, have agreed to the said proposal. This is not to suggest that in preparing the Scheme, the provisions of the Town Planning Act should not be followed, but in the special circumstances of the present case, even if there is a lapse on the part of the authorities in not meticulously following the procedural requirements, but when substantial justice has been done, we do not think it proper to interfere in the present case.
The learned senior advocate for the Corporation in this regard invited attention of the Court to decision of the Hon ble the Apex Court in the matter of Friends Colony Development Committee Vs. State of Orissa and others, reported in A.I.R. 2005 SC 1. The learned senior advocate for the Corporation invited attention of the Court to the observations made by the Hon ble the Apex Court in para 22 of the judgment, which read as under:
22 In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter-meddling with the private ownership of the property may not be justified.
14. In view of the aforesaid discussion and in view of the fact that the learned Single Judge has taken all the trouble to deal with the contentions raised by the petitioners before him, this Court finds that the present appeals do not warrant any entertainment or interference with the judgement and order passed by the learned Single Judge.
15. In the result these Letters Patent Appeals fail and the same are dismissed. The statement made by learned senior counsel Mr.Prashant Desai for Ahmedabad Municipal Corporation as recorded in order dated 13.03.2013 is vacated.
16. As the Letters Patent Appeals are dismissed, no orders on the Civil Applications. The same are disposed of accordingly.
17. At this juncture, the learned advocate for the petitioners/ appellants requested that the statement made by learned senior counsel Mr.Prashant Desai for Ahmedabad Municipal Corporation as recorded in order dated 13.03.2013 and continued till date, be continued for some more time so as to enable the petitioners/ appellants to agitate their rights before higher forum. This Court finds no substance in the request. The request is rejected, because as discussed hereinabove, private right must give way to the interest of general public. Besides that there is a categorical statement made by the learned senior advocate for the Corporation that but for these few patches admeasuring 700 sq. meters, the entire scheme is through and road is already completed. In view of that this Court finds that no relief can be granted or continued by this Court.
(RAVI R.TRIPATHI, J.) (R.D.KOTHARI, J.) karim TO BE REFERRED TO THE REPORTERS.
Sd/-
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