Gujarat High Court
Sun Builders Pvt Ltd vs State Of Gujarat on 22 December, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/23012/2019 ORDER DATED: 22/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23012 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 23012 of 2019
================================================================
SUN BUILDERS PVT LTD.
Versus
STATE OF GUJARAT
================================================================
Appearance:
JIGAR J PATEL(7971) for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
================================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 22/12/2022
ORAL ORDER
1. The petitioner seeks to challenge the arbitrary and illegal action on the part of the respondents-Authority, more particularly, the Respondent - Ahmedabad Municipal Corporation for illegally and forcibly trying to take possession of the land bearing Revenue Survey No.387/4 admeasuring 4039 Sq. Mtrs owned by the petitioner herein, under the guise of showing the lesser area of the said land as O.P. No. 74 admeasuring 3660 Sq. Mtrs in the draft Town Planning Scheme No.28 (Ghatlodia - Sola - Chandlodiya), inspite of the fact that the preliminary town planning scheme is still not prepared and Page 1 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 pending with the Town Planning Officer, appointed by the State Government under Section 50 of the Gujarat Town Planning & Urban Development Act, 1976 ("the Act of 1976" for short).
2. The short facts giving rise to the present petition are as under:-
2.1 That the land bearing Revenue Survey No.387 was huge parcel of land admeasuring approximately 25091 Sq. Mtrs.
However, it appears that thereafter the same was divided into 4 part being Revenue Survey Nos. 387/1, 387/2, 387/3 and 387/4 situated at mouje Sola, Taluka Daskrol, District Ahmedabad. It is stated that so far as the present issue is concerned, the same pertains to the land bearing Revenue Survey No.387/4 situated at mouje Sola, Taluka Daskrol, Dist. Ahmedabad. It is stated that the land in question was originally admeasuring 6981 sq. meters (1 Acre - 29 Guntha) which was owned by the predecessors in title of the petitioner. 2.2 It is stated that thereafter between 1960 to 1970 the land in question being Revenue Survey No. 387/4 admeasuring 1 Acre and 29 Gunthas was purchased by the predecessor in title Page 2 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 of the petitioner herein viz. Vanmalidas Parmanand from whom the petitioner had purchased and his name was mutated in the revenue Record 2.3 Thereafter it appears that the portion of the land in question went into road widening for Khodiyar-Sarkhej Road in the year 1974-75. It is submitted that due to the same, out of the total holding of land admeasuring 6981 sq. mtrs (1 Acre and 29 Gunthas), an area admeasuring 2012 sq. mtrs. was deducted for road widening and area admeasuring 4969 sq. mtrs. was left out being owned by the predecessor in title of the petitioner herein viz. Vanmalidas Parmanand. It is stated that same was even given effect into the 7/12 extract vide entry No. 4419 in the year 1993, which came to be certified by the competent Authority.
2.4 It is stated that since the Respondent - State Government wanted to acquire portion of the land for expanding the Sarkhej Gandhinagar National Highway No.8A, out of the total area of the land admeasuring 4969 sq. mtrs. of land of the petitioner bearing Revenue Survey No.387/4, land admeasuring 830 sq. mtrs. was further acquired by Notification issued by the respondent - State Government. Page 3 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 2.5 It is stated that pursuant thereto 'Kami Jastak Patrak' was
prepared by the competent Authority wherein the area of the land of Revenue Survey No.387/4 was shown as land admeasuring 4039 sq. mtrs. i.e. after deducting the land admeasuring 830 sq. mtrs. from the total area of the land admeasuring 4969 sq. mtrs (the same is error since it should be 4139 Sq. Mtrs).
2.6 It appears that simultaneously since the area was within the limit of Ahmedabad Urban Development Authority (AUDA), the AUDA declared its intention under Section 41 of the Act, 1976 dated 12.10.1999 to frame the Town Planning Scheme No.28 (Ghatlodia-Sola-Chandlodiya) and the said intention was published in the Official Gazette on 20.4.2000 2.7 It is stated that in the said Draft Town Planning Scheme No. 28 (Ghatlodia-Sola-Chandlodiya), at the relevant point of time, in the year 2000, land bearing Revenue Survey no. 387/4 was given O.P.No. 35, however, area shown against the said Original Plot was erroneously shown as 3660 Sq. Mtrs., instead of actual area admeasuring 4139 Sq. Mtrs., and in lieu of the Page 4 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 same since Original Plot area was shown as lesser area, after deducting 50% from the OP No.35 shown as admeasuring 3660 Sq. Mtrs, Final Plot no. 35 admeasuring 1830 Sq. Mtrs was proposed to be allotted to the predecessor in title of the petitioner herein.
2.8 It is stated that thereafter the petitioner herein purchased said land from its predecessor in title, viz., Shri Vanmalidas Parmanand by way of registered Sale Deed No.9085 dated 24.5.2010. It is stated that it was even given effect in the revenue record vide mutation entry No.11357 dated 5.6.2010 which came to be even certified by the competent Authority at the relevant point of time. 2.9 It is stated that there was an error apparent on the face of the record, committed by the AUDA, for considering original plot area of the petitioner owned land. However, since the petitioner wanted to develop the land, and the same can be rectified at the stage when Town planning officer is appointed, development permission was sought by the petitioner herein for constructing the flats which is now popularly known as 'SUN EMBARK'.
Page 5 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 2.10 It is pertinent to note that since the dispute was
with regard to total area to be considered for Original Plot, since the same has bearing on the allotment of the Final Plot, the plans were sanctioned as per the Draft Town Planning Scheme No. 28, however, it is pertinent to note that while sanctioning the said plan, it is being stated by the Authorities that "Final Plan Boundary and allotment of Final Plot is subject to variation by Town Planning Officer". It is stated that said noting was put forth by the Authorities, since they were aware about said mistake, moreover said mistake can be rectified by the Town planning Officer only, and, therefore, the said noting was put forth at the relevant point of time.
2.11 It appears that said draft Town Planning Scheme No. 28 never came to be sanctioned by the Respondent-State Government, since there was a litigation pending before the Hon'ble High Court of Gujarat challenging the validity of the Section 40(3)(jj), wherein the powers of the Authorities to take away 50% land in deduction was challenged, which ultimately reached upto Hon'ble Supreme Court of India, wherein the said validity was upheld.
Page 6 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 2.12 In the meantime, in the year 2006 the city limit of
the Respondent-Corporation was extended, and the land in question came within the limit of the Respondent-AMC. It appears that since the issue with regard to 50% deduction from the town planning scheme came to be challenged before this Hon'ble Court as well as thereafter the said matter went up to the Hon'ble Supreme Court of India, the draft town planning scheme No.28 (Ghatlodia-Sola-Chandlodiya) was kept pending by the respondent State Government for its sanction and, ultimately since the same came within the limit of the Corporation, the respondent State Government directed the Corporation to frame the Town Planning Scheme No.28 (Ghatlodia - Sola -Chandlodiya).
2.13 It appears that while preparing Draft Town Planning Scheme No. 28 (Ghatlodia - Sola - Chandlodiya), the Respondent- Corporation, without carrying out the physical survey, reiterated the land of the Petitioner being R.S no. 387/4 as O.P. no. 74, admeasuring 3660 Sq. Mtrs instead of 4139 Sq. Mtrs and thereby proposed to allot F.P. No. 74 admeasuring 1962 Sq. Mtrs, which is error apparent on the face of record, since the land bearing R.S no. 387/4 is 4139 Sq. Page 7 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 Mtrs and same will have effect in allotment of Final Plot to the petitioner, since the FP. No. 74 is shown as 1962 Sq. Mtrs (approx..46% deduction), whereas the proposed allotment should be more. It appears from the perusal of the Part Plan of Draft Town Planning Scheme that portion of the land of Petitioner owned land bearing R.S. no. 387/4 is kept for Reservation for Open Space being F.P. no. 132, portion of land is going in 12 Mtr T.P. Road and portion of the land is proposed to be going in F.P. 72, which is carved out.
2.14 It is stated that thereafter the Respondent - Corporation, at the stage of preparing the draft town planning scheme No.28 (Ghatlodia - Sola - Chandlodiya), itself communicated to the petitioner vide communication dated 18.4.2019 seeking possession of the land admeasuring 1830 Sq.Mtrs. of O.P. No.35 as per the draft town planning Scheme No.28 as earlier prepared by the AUDA. It is pertinent to note here that the said draft town planning scheme No.28 prepared by the AUDA did not remain in force in view of the fact that the Respondent-State Government did not give sanction to the said draft Town Planning Scheme No.28 and directed the Respondent - Corporation to prepare the draft town planning Page 8 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 scheme afresh and, therefore, the demand made by the respondent - Corporation seeking possession of the area of the land admeasuring 1830 sq. mtrs. of OP No. 35 as per earlier Draft Town Planning Scheme no. 28 prepared by AUDA is arbitrary, illegal and without jurisdiction 2.15 It is stated that pursuant thereto the petitioner vide its communication dated 2.5.2019 was pleased to communicate to the respondent-Corporation stating that since the Director/Authorized Signatory of the petitioner company is out of India, the reply to the communication dated 18.4.2019 will be given once the Director returns to India. 2.16 It is stated that surprisingly immediately on 4.5.2019 the respondent - Corporation in an undue haste communicated to the petitioner informing that the request made by the petitioner, through its letter dated 2.5.2019, is not acceptable and therefore possession of the land of O.P. admeasuring 1830 sq. mtrs. be handed over to the Corporation immediately.
Page 9 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 2.17 It is stated that thereafter again the petitioner vide communication dated 10.6.2019 communicated to the
respondent - Corporation pointing out the undue haste shown by the respondent-Corporation is unwarranted for, since the draft town planning scheme no. 28 is not yet sanctioned and the preliminary town planning scheme is not even prepared. However, only just to show the bona fide, the petitioner informed the respondent - Corporation that the portion of the land of R.S. no. 387/4 of the petitioner which is going into the 12 meters town planning road is opened by the petitioner considering the public purpose involved inspite of the fact that the draft town planning scheme is yet not sanctioned by the respondent State Government.
2.18 That the respondent - State Government vide its notification dated 13.6.2019 was pleased to sanction the draft town planning scheme No.28 (Ghatlodia - Sola - Chandlodiya) as prepared by the Respondent - Corporation and thereby was pleased to appoint the Town Planning Officer for preparing the preliminary town planning Scheme No.28 (Ghatlodia - Sola - Chandlodiya). It is stated that along with said Notification the respondent - State Government put annexure wherein it has Page 10 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 been directed to the Town Planning Officer to consider the representation made by the petitioner herein which is at Item No.13(III).
2.19 It is stated that thereafter the petitioner herein again communicated to the - corporation vide its communication dated 29.6.2019 raising the grievances with regard to undue haste shown by the respondent Corporation for taking possession of the land of the petitioner herein and it was also pointed out by the petitioner whether the deduction shall be 40 % or 50% which is to be decided by the Town Planning Officer, appointed by the State Government while preparing the preliminary town planning scheme, and as in the similar cases such as in the town planning scheme of Prahladnagar the deduction has been reduced to 40% inspite of 50%, therefore, unless and until the decision is taken by the Town Planning Officer the respondent - Corporation cannot take possession of the land of the area admeasuring 1830 sq. mtrs. of the petitioner. Further, it was also pointed out that there is an error apparent on the face of the record of considering the area of the land of OP of Revenue Survey No.387/4 since the area shown in the 'F' form prepared by the Page 11 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 respondent - Corporation is less than the actual area of the land of Revenue Survey No.387/4 and, therefore, the same also requires to be looked into by the Town Planning Officer while preparing the town planning scheme.
2.20 That the petitioner herein vide its communication dated 9.9.2019 pointed out that as per the Title Report received by the petitioner herein coupled with the fact that OP bearing Revenue Survey No.387/4 should be admeasuring 4139 sq. mtrs. However, in the draft town planning scheme, the land of OP of the petitioner owned land is shown as the area admeasuring 3660 sq. mtrs, and, therefore, the correction is required to be done by the Town Planning Officer by increasing the said area which is ultimately have an effect on the Final Plot area to be allotted to the petitioner herein. Further, it was also pointed out that earlier the petitioner has also paid the betterment charges towards the deduction and, therefore, the procedure undertaken by the respondent - Corporation for taking possession may not be proceeded further till the Town Planning Officer decides finally while preparing the preliminary town planning scheme. Page 12 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 2.21 It is pertinent to note here that inspite of several
communications made by the petitioner raising grievances with regard to the preparation of the draft town planning scheme as regards the area of OP of the petitioner's own land, no reply was given by the respondent - Corporation, which itself smell foul play on the part of the respondent - Corporation, inspite of producing the documentary evidence in this regard.
2.22 It is stated that thereafter several times the petitioner herein visited the office of the respondent Corporation and lastly visited on 13.12.2019 for inquiring with regard to the correspondence made by the petitioner vis-à-vis raising the grievances about the draft town planning scheme prepared by the respondent - Corporation. However, no fruitful and concrete reply was given by the officials of the respondent
- Corporation and in fact it was orally conveyed that within a period of 10 days the officials of the respondent - Corporation will come and take over the possession of the area of the land of OP which is in possession of the petitioner herein with the help of JCB machine and the man-power. Therefore, the petitioner has filed present petition with aforesaid prayer. Page 13 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 2.23 The respondent, Chairman of Arpannagar
Cooperative Housing Society Limited, has filed reply to the petition stating, at the outset, that the petition filed by the petitioner is required to be rejected on the ground of suppression of material facts and on the ground of non- rejoinder of necessary parties. It is stated that , the petitioner has no locus to file the present petition with respect to the prayers referred above. The deponent stated that the petitioner has purchased the land bearing final plot No.35 of T.P. scheme No.28 admeasuring 1830 square meters from the original owner namely Vanmalidas Parmanand. Therefore, it is relevant to submit before this Hon'ble Court that what is purchased by the petitioner is clear final plot admeasuring 1830 square meters. It is submitted that for the said final plot, the petitioner herein has placed the plan before the competent authority and the said plan is sanctioned. Even in the sanctioned plan, the area of the final plot No.35 is mentioned as 1830 square meters which is equivalent to the area purchased by the petitioner by way of registered sale deed. Therefore, if the petitioner has purchased the final plot No.35 of admeasuring 1830 square meters and if the same is utilized by the petitioner, then where is a question of raising Page 14 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the grievance with respect to the land over and above the area of 1830 square meters. He has also stated that present respondent society is granted final plot No.72. The final plot which is granted to the present petitioner is F.P. No.74. As per the record of the competent authority, the total area of original survey was 3660 square meters out of which, the predecessor of the petitioner was granted 1830 square meters by final plot No.74. So far other land admeasuring 1830 square meters is concerned, out of the same, some of the portion is demarcated for the purpose of road and some of the land is merged with final plot No.72. It is also stated that some portion of the land is vested in the Final Plot No.72 of the deponent because, some of the land of the deponent was taken by the development authority and to compensate the same, this portion of the land is granted to the present respondent society. However, because of the pendency of the proceedings and because of the encroachment of the petitioner, the vacant possession of the said portion is not handed over to the society. It is also submitted that the petitioner is aware that the final plot No.72 is vested in the present society. It is also submitted that when the prayer of the petitioner is with respect to the land which is granted to the present society, Page 15 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 then any order to be passed would adversely affect the present society and since there is a non-joinder of necessary parties, the petition filed by the present petitioner is required to be rejected on the ground of proviso to Order 1 Rule 9 of the Civil Procedure Code.
2.24 It is also submitted that the T.P. scheme No.28 was framed on 12.10.1999. The intention was published on 20.04.2000. In the draft plan, the original plot No.35 was mentioned as 3660 square meters out of which, final plot No.35 was granted 1830 square meters. All these proceedings are prior to 2010. The year in which, the petitioner has purchased the land. The petitioner has purchased the land in the year 2010. It is also submitted that the predecessor of the petitioner and the petitioner have also executed one undertaking to the effect that they will not raise any objection with respect to the said T.P. scheme No.28. The petitioner was aware that if the said undertaking is produced, then, his petition under Article 226 of the Constitution of India would not be maintainable and he would not get any relief from the Hon'ble Court and, therefore, those material documents were suppressed from this Hon'ble Court. It is also submitted that by Page 16 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 suppressing the material fact, the petitioner had got the order of status- quo from this Hon'ble Court. Therefore, it is prayed to dismiss present petition.
2.25 It is also submitted that in the notice itself, there is a reference that out of the 3660 square meters, the possession of the 50% of the land admeasuring 1830 square meters is handed over to the Ahmedabad Urban Development Authority. Reply of Respondent no.8
3. Respondent no.8 has also filed affidavit stating that petitioner has not approached this Hon'ble Court with clean hands and after handing over the peaceful and vacant possession to the authority for getting the plans for proposed construction sanctioned, the petitioner still wants to occupy the portion of surrendered land which was surrendered voluntarily at the relevant point of time and the possession of which was handed over by the petitioner to the competent authority. Thus, continuation of the possession of the petitioner upon the land in question is illegal encroachment and hence, the petitioner is not to continue with such illegal occupation at site. It is also contended that the following details emerge from Page 17 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the record are required to be considered so as to appreciate the conduct of the petitioner:-
3.1 The record suggests that the land in question was covered within Town Planning Scheme No.28 (Ghatlodiya-
Chandlodiya-Sola). The draft TP Scheme was submitted to State Government notification on 12/05/2015. As per the draft TP Scheme No.28 Chandlodiya-Sola), (Ghatlodiya-the land in question i.e. land bearing Revenue Survey No.387/4/Paiki was allotted original plot No.35 admeasuring 3660 sq.mtrs. and in lieu of the original plot, and occupier of the original plot was allotted final plot No.35 admeasuring 1830 sq.mtrs. The record further suggests that order of NA was passed by the competent authority on 30.3.2010 with respect to land admeasuring 1830 sq.mtrs. which was shown as final plot No.35 as per the order dated 30.3.2010 passed by the competent authority while exercising powers under the provisions of the Code of 1879. It is further submitted that as per Entry No.11357 it would reveal that the petitioner had purchased the land from one Vanmalidas Parmanand bearing Survey /Block No.387/4 admeasuring 1830 sq.mtrs. of final plot No.35 of TP Scheme No.28 as referred to above. The record Page 18 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 further reveals that as the owner and occupier of final plot No.35 intended to develop the land, an application was filed before the competent authority which was Ahmedabad Urban Development Authority (AUDA) at the relevant point of time. The record further reveals that on 22.2.2011, commencement letter / Raja Chhithi was issued by AUDA with respect to 1830 sq.mtrs. of land. It is submitted that as the owner and occupier of the land bearing survey No.387/4, the petitioner and/or its predecessor were intended to develop the above-referred land bearing original plot No.35 admeasuring 1830 sq.mtrs., they were under obligation to hand over peaceful and vacant possession of the remaining portion from the original plot No.35 admeasuring 3660 sq.mtrs. which is not forming part of final plot admeasuring 1830 sq.mtrs. Meaning thereby, the owner and occupier of the land in question was under
obligation to hand over possession of 1830 sq.mtrs. of land which was falling allotting in the final deduction plot while No.35 admeasuring 1830 sq.mtrs. which was intended to be developed by the said person. Therefore, undertaking, the possession agreement and possession receipts were executed by petitioner as well as its predecessor with AUDA at the relevant point of time. The above-referred documents Page 19 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 executed by petitioner and/or its predecessor clearly shows that at the relevant point of time, for getting construction permission with respect to final plot No.35 admeasuring 1830 sq.mtrs., vacant and peaceful possession of remaining 1830 sq.mtrs. of land which was not forming part of final plot No.35 was handed over by the petitioner and/or its predecessor with free will and wish in favour of AUDA. As per the agreement produced at Page-169 by the private respondent, it is clear that for getting the benefit of the construction permission at the relevant point of time, the petitioner and/or its predecessor had specifically undertook that they would not claim any benefit in future and will not claim back the portion of its original plot which was 50% to the area of its original plot, which was not subject matter of allotment as final plot.
Meaning thereby, they had agreed that out of total land admeasuring 3660 sq.mtrs., they are surrendering land which is not forming part of final plot No.35 admeasuring 1830 sq.mtrs. which would also come to 1830 sq.mtrs. and it was also agreed that the petitioner and/or its predecessor will not claim any equity or benefit in future with respect to land which is already surrendered for getting benefit of proposed construction at the relevant point of time. If the above-referred Page 20 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 commencement letter / Raja Chhithi perused vis-à-vis the plans which were submitted by the petitioner, at the relevant point of time, it would reveal that total area was 3660 sq.mtrs.
of land, whereas the area of final plot and proposed construction was 1830 sq.mtrs. as per the table and as per the sketch map which are subject matter of sanction at the relevant point of time. Thus, in view of above, it would become clear that once the petitioner and/or its predecessor had surrendered 50% of the land from the original plot to the tune of 1830 sq.mtrs. at the relevant point of time and when they constructed the building upon final plot No.35 admeasuring 1830 sq.mtrs. as referred to above, neither the petitioner nor his successor would have any right, title and interest in the land which was surrendered to AUDA at the relevant point of time.
3.2 It is submitted that in view of expansion of city limit of Ahmedabad, the area in question is now forming part of AMC.
Therefore, the land which was in ownership and occupation of the AUDA would fall within the jurisdiction of AMC as per the provision of law. It is, therefore, submitted that the communications dated 4.5.2019, 18.4.2019 and 30.4.2019 are Page 21 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 just and proper as it is clear that after surrendering the above- referred land to the tune of 1830 sq.mtrs. in favour of AUDA, as referred to above, the petitioner has again encroached upon the said land and is not evicting land which resulted into issuance of impugned communications 4.5.2019, 18.4.2019 and 30.4.2019. It is submitted that, in view of above fact, it would become clear that petitioner has no prima facie case and hence, the captioned petition is required to be dismissed in limine.
3.3 Without prejudice to what is stated above, it is submitted by the respondent that in peculiar facts and circumstances of the present case, after submission of the draft TP Scheme No.28 (Ghatlodiya-Chandlodiya-Sola) under Section 48 (2) of the Act on 12/05/2015, the State Government had returned the TP Scheme for initiation of the proceedings. Ultimately, the draft TP Scheme No.28 (Ghatlodiya-sola-chandlodiya) was prepared by the competent authority and the same was submitted to the State Government under Section 48 (1) of the Act on 15/06/2018. The draft TP Scheme No.28 (Ghatlodiya- sola-chandlodiya) was sanctioned under Section 48 (2) of the Act from the State Government on 13/06/2019. As per the Page 22 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 proposal of the draft TP Scheme in question, now which got sanctioned on 13/06/2019, the land bearing Survey / Block No.387/4/P is allotted original plot No.74 admeasuring 3660 sq.mtrs. and in lieu of original plot, final plot No.74 admeasuring 1962 sq.mtrs. is allotted to the owner and occupier of the original plot. Now, the petitioner is trying to contend that as the which the old the draft TP Scheme upon which the petitioner has acted at the relevant point of time, is returned by the Government and as the authorities are in process of preparing new TP Scheme as fresh proceedings, the above-referred acquiescence and waiver and handing over vacant and peaceful possession of 1830 sq.mtrs. of land in favour of AUDA at the relevant time, would not be made applicable to the petitioner now in the facts of the case. The petitioner is also trying to take advantage of the fact that in the proposal of the present TP Scheme which got sanctioned in 2019, the area of final plot is increased to 1962 sq.mtrs. from 1830 sq.mtrs. relying upon which consequential contentions raised. That even otherwise, if the variation in the final plot as referred to above is considered, there is increase of 132 sq.mtrs. between the old draft TP Scheme and present TP Scheme. That bare perusal of map, it would become clear that Page 23 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the petitioner cannot avoid handing over the possession as per the impugned communication / notice by referring and relying upon above-referred increase, as if in future the preliminary TP Scheme is sanctioned on the same line of the draft TP Scheme which got sanctioned from the State Government in 2019, the petitioner would be in a position to get land as the increased land is available at site, as can be seen from the above- referred map. It is also contended that it would not be out of place to mention here that from the land which was handed over to AUDA i.e. 1830 sq.mtrs. of land, referred to above, even 12 mtrs. TP road is carved out and at that time, no objection whatsoever was raised by the petitioner. Thus, on all these grounds, it is clear that petitioner has encroached upon the land after handing over the same to the AUDA and after getting the benefit of the rest of the portion, as can be seen from the record. Thus, even on the ground of conduct also, the captioned petition deserves to be dismissed in limine.
4. In rejoinder, the petitioner has raised following contentions:-
Page 24 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 (i) That the draft town planning scheme no.28, Ghatlodia
Chandlodia-Sola, as prepared by the AUDA came to be returned by the Respondent State Government vide notification dated 12.5.2015 and the same was not sanctioned under the provisions of the Act, 1976. Further, the respondent State Government directed the appropriate authority to modify the scheme in accordance with the existing condition of the land falling under the scheme area, proposals of the development plan and development permission granted by the appropriate authority.
(ii) It is now admitted by the respondent that the said new draft town planning scheme no.28 (Ghatlodia-Chandlodia-Sola) has been sanctioned by the State Government vide notification dated 13.6.2019 and the same is pending before the Town Planning Officer for the purpose of preparation of the preliminary town planning scheme no.28 (Ghoatlodia- Chandlodia-Sola).
(iii) In light of the admitted facts by the respondent corporation, as per the scheme of the Act, 1976, unless and until the preliminary town planning scheme is sanctioned Page 25 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 u/s.65 the Act, 1976, the appropriate authority i.e. the respondent no.8 herein has no jurisdiction to take the possession of the land by virtue of the embargo as stated under the Statute.
(iv) The impugned communication seeking possession of the original area being revenue survey no.387/4 paiki by the respondent no.8 is arbitrary, illegal and without jurisdiction and therefore, the same is required to be quash and set aside by this Honourable Court. In fact, the petitioner has also produced on record the notices that has been issued by the respondent town planning officer under rule-26, sub-rule-4 for the purpose of preparation of the preliminary town planning scheme. Therefore also, the action of the respondent corporation seeking possession of the original plot area of the petitioner at this stage is whole arbitrary and without jurisdiction and being contrary to the provisions of the Act, 1976. Thus, the present petition be allowed by this Honourable Court on this ground only.
(v) It is denied that the petitioner has not approached this Honourable Court with clean hands and after handing over the Page 26 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 peaceful and vacant possession to the authority, the petitioner still wants to occupy the portion of the land which was surrendered by the petitioner voluntarily at the relevant point of time and possession of which was handed over by the petitioner to the competent authority, as alleged. It is submitted that no such possession was ever handed over to the competent authority as alleged. In fact, the old draft TP Scheme no.28 (Ghatlodia-Chandlodia-Sola) as prepared by the AUDA was never sanctioned by the State Government and the same was returned to the competent authority for preparing a fresh draft town planning scheme no.28 (Ghatlodia- Chandlodia-Sola). In light of the same, it cannot be said that the petitioner has illegally encroached upon the land as alleged. It is denied that the petitioner has only purchased the final plot area and not the survey/block no.387/4 as alleged. It is submitted that the respondent AUDA also knowing fully well that the area that was considered in the old draft town planning scheme no.28 as prepared by AUDA was lesser area and the petitioner was entitled for a more area than the allotted final plot in the said scheme and, therefore, while passing the plan also, the respondent AUDA itself has made a remark on the said sanctioned plan that the final plot boundary Page 27 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 and allotment of final plot is subject to "variation by the town planning officer". It is submitted that even, at that stage, the allotment of the final plot to the petitioner in lieu of its original plot was not finalized and the same was made subject to the variation being made by the town planning officer. It is submitted that the said remark was made consciously considering the fact that the original plot area of the petitioner is more than what has been considered for the purpose of preparing F form and, therefore, even at that stage, the final plot boundaries of the petitioner were not finalized and considering the said aspect, the question of handing over the possession to AUDA would not arise.
(vi) Even otherwise, the said draft town planning scheme no.28 as prepared by AUDA did not get the sanction of the respondent-State Government and the same was returned and considering the said aspect and the provisions of the law, anything done pursuant to the said old draft town planning scheme is a nullity.
(vii) It has denied that the owner and occupier of the land in question was under obligation to handover the possession of Page 28 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 1830 sq. mtrs of land which was falling in the deduction while allotting final plot no.35 admeasuring 1830 sq. mtrs. It has denied that the petitioner has undertook that they will not make any claim in future to claim back the portion of its original plot as alleged. It has denied that the petitioner has surrendered land which is not forming part of final plot no.35 admeasuring 1830 sq. mtrs, which would also come to 1830 sq. mtrs. It has denied that after surrendering the above referred land to the tune of 1830 sq. mtrs to the AUDA, the petitioner again encroached upon the said land and is not evicting the land which was resulted into the impugned notice as alleged.
(viii) That, at no point of time, the possession of the original plot area of the petitioner was ever taken by the respondent. It is further submitted that the petitioner is always cooperating with the respondent authorities and has even given the land so far as the road is concerned, however, so far as the remaining original plot area of the petitioner's land is concerned, the petitioner is entitled to retain the same in light of the fact that the preliminary town planning scheme is not yet sanctioned. . Page 29 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 (ix) It is now admitted by the respondent no.8 also that the
draft town planning scheme no.28 (Ghatlodia-Chandlodia-Sola) as prepared by AUDA was returned for a fresh preparation. It is also admitted that pursuant thereto, the draft town planning scheme no.28 (Ghatlodia-Chandlodia-Sola) came to be prepared and in the said scheme, survey no.387/4/paiki is allotted original plot no.74, admeasuring 3660 sq. mtrs. (the petitioner have already raised objection before the respondent TPO to correct the said measurement, since the petitioner is owner of 4039 sq. mtrs as per 7/12 extract and the DILR measurement sheet and as per actual 4139 Sq. Mtrs) and in lieu of the same, final plot no.74 admeasuring 1962 sq. mtrs. is allotted to the petitioner. It is denied that the petitioner is trying to take advantage of the fact that in the proposal of the present town planing scheme which got sanctioned in the year 2019, the area of final plot is increased to 1962 sq. mtrs from 1830 sq. mtrs.
(x) It is submitted that the respondent authorities are not obliging to the only of entitlement of 132 sq. mtrs only, the petitioner will be entitled to more than 132 sq.mtrs land considering fact that petitioner's original plot area been Page 30 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 considered less inspite of the fact that the petitioner owned 4039 sq. mtrs of land as per the documents on record.
(xi) It is submitted that the petitioner has given possession of land qua the road. It submitted that the same cannot be treated waiver the part the petitioner. Therefore, it is prayed to allow present petition.
5. Heard learned Senior Counsel, Mr.Deven Parikh appearing with learned advocate Mr.Jigar Patel for the petitioner, learned Senior Counsel, Mr.Prashant Desai assisted by learned advocate Mr.Satyam Chhaya for the respondent nos.5, 6, 7, 8 and 9, and learned Senior Counsel, Mr.Percy Kavina appearing with learned advocate Mr.R.D.Kinariwala for the society seeking to be joined as party respondent. Considered the submissions advanced by all the parties coupled with the material placed on record and decisions cited at bar.
6. Learned Senior Counsel, Mr.Deven Parikh for the petitioner has vehemently submitted that same facts, which are narrated in the memo of petition as well as affidavit in Page 31 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 rejoinder. He has vehemently submitted that the dispute is only between the petitioner and Ahmedabad Municipal Corporation regarding Town Planning Scheme. He has submitted that no third party can claim any right in the matter. He has referred to various provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short, "the Act"), especially Sections 40, 41, 43, 45, 46, 48, 50, 52, 67, 68, 69 and has submitted that under the Act provision has been made for preparation of Town Planning Scheme as well as sanction thereof and power of the State Government regarding the same. He has also submitted that as per the provisions of the Act, initially there would be a declaration of intention to make scheme and there would be publication of the draft scheme. He has also submitted that as per Section 45, while preparing a Scheme, there would be re-construction of plots and there is also a mechanism for settlement of dispute as to the ownership and of considering objections thereof. While referring to Section 48-A, which provides as to vesting of land in appropriate authority, has submitted that the land will vest in the appropriate authority, in the circumstances mentioned therein. He has also submitted that after declaration of Scheme, there would be restriction of use and development of Page 32 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the land. He has also submitted that whenever draft scheme is sanctioned by the Government, there would be appointment of Town Planning Officer and he has to take into consideration the objections. Learned Senior Counsel Mr.Parikh has also submitted that while preparing preliminary scheme, the Town Planning Officer has to take into consideration the objection as provided under Section 52 and decision of the Town Planning Officer would be final. While referring to Section 67, he has submitted that effect of preliminary scheme is that all the land required by the appropriate authority shall vest absolutely in appropriate Government and all rights in the original plots, which have been re-constituted into final plots shall determine and the final plots shall be subject to the rights settled by the Town Planning Officer.
6.1 Learned Senior Counsel, Mr.Parikh also referred to various provisions of the Act and has submitted that the present dispute pertains to the land of revenue survey No. 387/4 situated at mouje-Sola, taluka Dascroi, District Ahmedabad. He has submitted that the land was originally admeasuring 6981 sq.mtrs. which was sold by Vanmalidas Parmanand. He has submitted that in the year 1974-75 portion Page 33 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 of land in question admeasuring 2092 sq.mtrs. was acquired for road widening for Khodiyar-Sarkhej road. He has submitted that accordingly the balance left with predecessor in title of the land was 4969 sq. mtrs. which has been reflected in revenue entry no. 4419 as per the durasti patrack at page 51. While referring to various documentary evidence he has submitted that the out of land of 4969 sq. mtrs., 830 sq.mtrs. was further acquired by the State Government for expanding Sarkhej-Gandhinagar national highway no.8-A by notification dated 29.2.2000. According to him, however, due to some mistake on the part of the competent authority only 4039 sq. mtrs. was shown after deducting 830 sq. mtr. from 4969 sq.mtrs.
6.2 He has also submitted that in the year 1999 AUDA being the appropriate authority, at the relevant point of time, declared its intention to frame town planning scheme No. 28 wherein the plot No. 387/7 was given O.P.No.35 and area was mentioned as 3660 sq.mtrs. and FP was given number 35 having area of 1830 sq.mtrs. though the original area of the plot was 4139 sq. mtrs. which was shown as 4039 sq.mtrs. in 7/12 extracts.
Page 34 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 6.3 Learned Senior Counsel, Mr.Parikh has also submitted
that thereafter N.A. permission for residential use was granted by the Collector. He has submitted that the present petitioner has purchased the land from Vanmalidas Parmanand by registered Sale Deed, the entry of which was made in the revenue record, at page 89, 90. He has also submitted that necessary permission was granted by AUDA for residential flats on 22nd February 2021. He has submitted that said permission was granted subject to final plot boundary and allotment of final plot by town planning officer since the same was pending before TPO. According to him, proposed town planning scheme made by AUDA was returned by the State Government to Ahmedabad Municipal Corporation to prepare the scheme in accordance with the existing condition, as per notification dated 12th May 2015. He has also submitted that consequent to that notification, respondent AMC has prepared draft Town Planning Scheme No.28 without caring out physical survey and going through the record and reiterated the land of the petitioner and made its proposal showing Survey No.387/4 as Original Plot No.74, area shown as 3660 sq.mtrs. and FP No.74 as area of 1962 sq.mtrs. He has submitted that as per the said draft scheme, an error had occurred in mentioning the area of Page 35 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 original plot, and area of land being 4139 sq.mtrs. was not correctly mentioned. He has submitted that AMC by its communication dated 18. 4.2019 and 30.4.2019 seek possession of the landed admeasuring 1830 sq.mtrs. of O.P.No.35, as per draft town planning schemes prepared by AUDA. Mr.Parekh submitted that the same was replied by the petitioner by its communication dated 2nd May 2019 and 10th June 2019.
6.4 He has submitted that on 13 th June 2019, State Government has sanctioned draft planning scheme No. 28 as prepared by the Corporation. He has submitted that as the corporation insisted for possession, the petitioner has pointed out to the Corporation that in case of other persons less deduction of land has been made whereas in the case of the petitioner more deduction has been made in the same town planning scheme. He has also stated that the petitioner has raised various grievances in regard to the draft town planning scheme and has also made communication to higher authority which has directed the Corporation to look into the matter. While referring to various communications made to various authorities, learned Senior Counsel, Mr. Parekh has submitted Page 36 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 that the questions involved in this case is regarding entitlement of the petitioner as to the actual original measurement of the plot which was inadvertently recorded less in the revenue records. He has submitted that when the scheme prepared by AUDA has been returned back by the Government, it is necessary for the AMC to follow entire procedure as enunimated in the Act, as if the new scheme is being prepared. He has submitted that since the original scheme has been returned back by the State Government and then AMC was directed to prepare fresh scheme the AMC cannot take into consideration or rely upon earlier documents. He has submitted that there is no vested right in anybody till finalization of the town planning scheme. He has also submitted that the petitioner has already opened road. He has submitted that there is no right with the private party to agitate in this matter and question of entitlement of the petitioner regarding half portion of actual land is between the petitioner and AMC. He has submitted to allow present petition. He has relied upon decision in the case of Modinagar Co-operative Housing Society Limited and Another v. State of Gujarat and Others reported in 2006 SCC Online Gujarat 585, wherein it is observed as under:- Page 37 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 "8. At the outset it is required to be noted that at present the TP Scheme No. 28 (Ghatlodia-Sola- Chandlodia) is at the stage of Draft TP Scheme, which is pending with the State Government for its sanction under Section 48(1) of the Act and under the proposed Draft TP Scheme in lieu of various Survey Numbers belonging to various persons i.e. Survey Nos. 288/3 and other Survey Numbers of Sola and Ghatlodia, OP No. 76 and other admeasuring 1,50,910 sq. mts. of land it is proposed to be allotted Final Plot No. 70 admeasuring 75,455 sq. mts. and the said proposed Final Plot No. 70 is consisting of various Survey Numbers i.e. Survey Nos. 199 (part), 200, 203, 276, 277/1+2, 278/1, 277/3, 278/2, 204 (part), 205 (part), 206 (part), 207 (part), etc. It appears that pending the Draft TP Scheme to be sanctioned by the State Government and in anticipation of sanctioning the said Draft TP Scheme by the State Government, the AUDA granted the development permission in favour of the petitioners and the respondent Nos. 4 and 5 with respect to the proposed Final Plot No. 70 on certain conditions. It appears and it is the contention on behalf of the Page 38 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 petitioners and the AUDA that the said development permission was granted as per the practice adopted by the AUDA pending sanctioning of the Draft TP Scheme/TP Scheme on condition that before putting up the construction and/or the said permission was subject to obtaining necessary NOC of the owners of the original Survey Numbers, which will be now forming part of proposed Final Plot No.70. At the outset it is also required to be noted that as per the provisions of the TP Scheme, unless and until the Final TP Scheme is sanctioned, it cannot be said that the person in whose favour the land is allotted becomes the absolute owner and therefore, as such, pending even Draft TP Scheme before the State Government and before it is even sanctioned normally the AUDA ought not to have and/or should not have granted the development permission in anticipation of sanctioning of the Draft TP Scheme. At this stage, certain provisions of the Gujarat Town Planning Act are required to be referred to and considered to consider whether is it advisable and/or proper normally to grant development permission pending the finalization of the TP Scheme, which is at the stage of Draft Scheme pending for its Page 39 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 sanction before the State Government. As per Section 41 of the Act, the appropriate authority in consultation with the Chief Town Planner is required to declare its intention to make a TP Scheme in respect of the area in question. As per Section 42 of the Act, the appropriate authority is required to make a Draft Scheme of the area in respect of which the said declaration has been made within 9 months from the date of declaration of intention to make a Scheme under Section 41 of the Act and it is required to publish the same in the Official Gazette along with the draft regulations for carrying out the provisions of the Scheme. As provided under Section 44 of the Act, the Draft Scheme shall contain (a) the area, ownership and tenure of each original plot, (b) the particulars of land allotted or reserved under Clause (e) of Sub-section (3) of Section 40 with a general indication of the uses to which such land is to be put and the terms and conditions subject to which such land is to be put to such uses, (c) the extent to which it is proposed to alter the boundaries of original plots, (d) an estimate of the net cost of the scheme to be borne by the appropriate authority, (e) a full description of all the details of the Page 40 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 scheme under Sub-section (3) of Section 40 as may be applicable, (f) the laying out or relaying out of land either vacant or already built upon, (g) the filling up or reclamation of low-laying, swampy or unhealthy area or levelling up land, and (h) any other prescribed particulars. As provided under Section 45 of the Act, the Draft Scheme may contain proposals (a) to form a final plot by the re-constitution of an original plot by the alteration of its boundaries, if necessary, (b) to form a final plot from an original plot by the transfer of any adjoining lands, (c) to provide with the consent of the owners that two or more original plots which are owned by several persons or owned by persons jointly be held in ownership in common as a final plot, with or without alteration of boundaries, (d) to allot a final plot to any owner dispossessed of land in furtherance of the scheme, and (e) to transfer the ownership of a plot from one person to another. Where there is a disputed claim to the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made, an inquiry may be held as provided under Section 46 of the Act by the appropriate Page 41 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 authority or the Town Planning Officer at any point of time prior to the date on which the Town Planning Officer draws up the preliminary scheme under Section 51 by such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purpose of the Town Planning Act. As per Section 47 of the Act, any person affected by such Draft Scheme may submit objections relating to such scheme within one month from the date of publication of the Draft Scheme to the appropriate authority and the appropriate authority is required to consider such objections at any time before submitting the Draft Scheme to the State Government and modify such scheme. As per Section 48 of the Act, the appropriate authority is required to submit within three months from the date of publication of the Draft Scheme, with any modifications that may have been made therein under Section 47 together with the objections which may have been communicated to it to the State Government for sanction. The State Government may sanction the said Draft Scheme with or without modifications as provided in Sub-section (2) of Section 48 of the Act. As Page 42 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 provided under Section 50 of the Act, the State Government is required to appoint the Town Planning Officer within one month from the date of which the date on which the sanction of the State Government to a Draft Scheme is notified in the Official Gazette. As per Section 51 of the Act, within a period of twelve months from the date of his appointment, the Town Planning Officer shall, after following the prescribed procedure, subdivide the Town Planning Scheme into a preliminary scheme and a final scheme. As per Section 52 of the Act, in a preliminary scheme, the Town Planning Officer shall (i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the area allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots, (ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons, (iii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with provisions of Section 81, and (iv) Page 43 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 determine the period within which the works provided in the scheme shall be completed by the appropriate authority. As per Sub-section (2) of Section 52 of the Act, the Town Planning Officer is required to submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final scheme in accordance with the provisions of Sub-section (3). As per Section 65 of the Act, on receipt of the preliminary scheme, the State Government may sanction the preliminary scheme by notification within a period of two months from the date of receipt or refuse to give sanction, provided that in sanctioning any such scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality and only on sanctioning the preliminary scheme and thereafter the final scheme shall have effect as if it were enacted in the Act. As per Section 66 of the Act, if at any time before the preliminary scheme is forwarded by the Town Planning Officer to the State Government, a representation is made to the Town Planning Officer by Page 44 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the appropriate authority and a majority of the owners in the area, that the scheme should be withdrawn, the Town Planning Officer is required to forward such representation after inviting from all persons interested in the scheme objections to such representation, together with the objections, if any, to the State Government and it is open for the State Government to withdraw the preliminary scheme as provided in Sub- section (2) of Section 66 of the Act. As provided under Section 67 of the Act, on the day on which the preliminary scheme comes into force, all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer. Thus, considering the aforesaid provisions of the Gujarat Town Planning Act only on preliminary scheme coming into force, the rights in the re-constituted final plots are determined and the land owner who is allotted final plot on re-constitution becomes the absolute owner only on preliminary scheme coming into force. Therefore, unless and until, the preliminary scheme comes into force normally it is not advisable and/or proper even to grant Page 45 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the development permission at the stage of Draft Scheme pending before the State Government and/or preliminary scheme pending before the State Government for its sanction, in anticipation of its sanction with respect to the proposed final plots to the proposed owners who might become the owners on re- constitution of the final plots under the finalized TP Scheme. It might be that on receiving the objections at the Draft Scheme, the Town Planning Officer may modify the Draft Scheme and/or the State Government may sanction the Draft Scheme with modification, considering the objections and/or even at the stage of proposed preliminary scheme, the Town Planning Officer may modify the scheme and the State Government may sanction the preliminary scheme with modification on receipt of the objections and it might be that the land owner may not get the proposed final plot, which was proposed at the stage of Draft Scheme and/or preliminary scheme. Therefore, normally, it is advisable and proper to wait till the preliminary scheme comes into force and it is sanctioned and finalized, so that the difficulty, which has arisen in the present Special Civil Page 46 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 Application may not arise. If the AUDA would have waited till the scheme is sanctioned and finalized and would not have granted the development permission pending the Draft Scheme, the difficulty, which has arisen in the present Special Civil Application would have been avoided. Be that as it may, it is required to be noted that even the said development permission is subject to certain conditions, more particularly, obtaining necessary NOC from the owners of the original Survey Numbers forming part of the proposed Final Plot No.70. The proposed Final Plot No. 70 is consisting of Survey Nos. 204 paiki, 205 paiki and 206 paiki also which was held by Sola Gram Panchayat and which was a Gauchar land. The Collector, Ahmedabad, has right from the very beginning objected to allot the aforesaid Survey Numbers and other Survey Numbers belonging to the State Government as part of Final Plot No. 70. The petitioners are relying upon the resolution passed by the Sola Gram Panchayat dated 4th February, 2003 being Resolution No. 4 of 2003 resolving to hand over the possession of the land (Gauchar land) i.e. Survey Nos. 204 paiki, 205 paiki and 206 paiki, however, the State Government has already Page 47 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 resumed the said Gauchar land and Bunyadi sala land in exercise of powers under Section 108(4) of the Gujarat Panchayat Act and not only that but the resolution passed by the Sola Gram Panchayat dated 4th February, 2003 being Resolution No. 4 of 2003 by which it was resolved to hand over the possession of the aforesaid lands (Gauchar and Bunyadi Sala lands) is also cancelled by the TDO on 1st August, 2005 in exercise of powers under Section 249 of the Act and therefore, there is neither any resolution in existence nor the consent of the owners of the Survey Nos. 204 paiki, 205 paiki and 206 paiki is in existence and in view of the above objections raised by the Collector, Ahmedabad, and pending the said objections before the State Government even against the proposed Draft TP Scheme and objections by the State Government to include the aforesaid Survey Numbers i.e. Gauchar and Bunyadi sala land, etc. in to proposed Final Plot No. 70 and pending the Draft TP Scheme before the State Government for its sanction, considering the provisions of the TP Act, the petitioners and the respondent Nos. 4 and 5 cannot be permitted to put up any constitution on the disputed land, unless and Page 48 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 until, the Draft TP Scheme has become final and any construction till then would be illegal. Even in view of the above position and conditional development permission, the petitioners and the respondent Nos. 4 and 5 cannot put up any construction. It appears that the AUDA for some reasons and in an undue haste granted the development permission even pending the objections by the State Government and the Collector, Ahmedabad, to the Draft TP Scheme and the dispute with regard to the lands in question, which is not proper. Now considering the above position and the dispute and over and above that when the Draft TP Scheme is also not sanctioned by the State Government and that even Final Plot No. 70 is at present at proposal stage, it cannot be said that the petitioners have become the absolute owners of Final Plot No. 70 and/or that proposed Final Plot No. 70 absolutely vests in the petitioners, considering the provisions of the TP Act. Considering the provisions of the TP Act, there is no valid title at present in favour of the petitioners so far as proposed Final Plot No. 70 is concerned. There might be a practice of the AUDA to grant the development permission pending the Draft TP Page 49 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 Scheme and/or preliminary Scheme before the State Government and to allow the proposed allottee to put up the construction, however, the said practice is not a healthy practice and/or the same is not in accordance with law, unless there is any urgency. Unless and until the TP Scheme has become final, the proposed allottee does not become the absolute owner and the land vests in the said owners/allottees only on finalization of the TP Scheme. At the stage of proceedings prior to Section 67 of the Act, normally, no permission may be granted and/or no proceedings under Section 67 of the Act can be initiated in anticipation of the Draft TP Scheme, more particularly, so far as the present case is concerned there are serious disputes with regard to the government land which is proposed to be allotted to the petitioners and/or the respondent Nos. 4 and 5 by way of proposed Final Plot No. 70 and therefore, the respondent No.2 has rightly issued the Stay Order restraining the petitioners and/or the respondent Nos. 4 and 5 from putting up any further construction and in fact, the same would be to avoid any further multiplicity of proceedings and further complications. Suppose the petitioners are permitted to Page 50 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 put up the construction and if ultimately the Draft TP Scheme is not sanctioned and the disputed Survey Numbers are not allotted to the petitioners as part of final Plot No. 70, then, the petitioners would be required to demolish the construction and/or the construction put up by the petitioners would have to be declared as illegal. To avoid the aforesaid eventuality, pending the Scheme before the State Government, if the petitioners are restrained from putting up the constructions and even by holding that the petitioners cannot be permitted to put up the construction in Gauchar land/government land and if Stay Order is granted, it cannot be said that there is any illegality committed by the respondent No.2, which requires interference of this Court in exercise of powers under Article 226 of the Constitution of India. As stated hereinabove, in fact, the respondent No.2 is justified in issuing the Stay Order. It is required to be noted that even as stated above inspite of the earlier Stay Order, the petitioners continued to put up the construction illegally, for which, the criminal complaints were required to be filed."
Page 51 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022
7. Per contra, learned Senior Counsel, Mr Prashant Desai for the corporation has also referred to various provisions of the Act and has explained that, in what manner, town planning scheme is to be implemented. He has submitted that development plan is larger one and is general and thereafter there will be micro plan for each area. He has submitted that in the place of present Act of 1976 earlier Act of 1954 was in force. He has also referred to various provisions of that 1976 Act regarding public participation, making of draft scheme, contents of draft scheme, appointment of TPO, sanction of the scheme by the State Government and finality of order of the State Government. He has submitted that when draft scheme is sanctioned, lands meant for infrastructure facility would be due to be vested immediately in the authority. 7.1 While referring to the documentary evidence produced in the matter, learned Senior Counsel, Mr.Desai has submitted that the predecessor in title of the petitioner, Vanmalidas has addressed a letter for handing over 50% of the land by affidavit or undertaking dated 8th February 2011. He has also mentioned the area of 3660 square metre regarding survey No. 386/4 O.P. No. 35 and FP No. 35 for Town Planning Scheme Page 52 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 No.28. Mr.Desai, while referring to kabza pavti, at page 171, has stated that at the relevent point of time, predecessor in title of the petitioner has handed over 50% of the land admeasuring 1830 square metres to the AUDA and thus, the land admeasuring 1830 square metres was in the possession of AUDA. He has submitted that when predecessor in title of the petitioner has already handed over portion of land being 1830 square metres to AUDA, the impugnes notice issued by AMC for getting position thereof cannot be treated as illegal. 7.2 He has also submitted that after the sanction of the scheme the government would come into picture. He has also submitted that the power has been vested with the town planning officer under section 52 regarding exchange of plots as well as reservation of plot and as per section 52 (3), there is a scheme of submission of preliminary scheme and for finalization of the scheme and at that time, there would be question of financial aspect. He has also submitted that as perRule 26 of the TP Rules, necessary procedure has to be adopted by TPO and it is not yet completed by TPO. Page 53 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 7.3 Learned Senior Counsel, Mr.Desai also submitted that
when there is TP Scheme under the Act, and ownership of land is exchanged there is no necessity of any transfer of property under the Transfer of Property Act as and under the Act of 1976, one can become owner of the property. Learned senior counsel, Mr Desai has also referred to Section 67 (A) and has submitted that there is an automatic vesting of the land in appropriate authority and there is a mechanism for resolution of the grievances against the sanction of the scheme. He has submitted that in the present case AMC has issued notice for taking position of the land which was originally handed over by the predecessor in title of the petitioner to AUDA. He has also submitted that the Town Planning Officer has to settle the rights, which is yet to be done. He has also submitted that The Town Planning Act is a complete Code in itself and considering the provisions made therein and the fact that initially the land of 1830 square metres was already handed over to a AUDA by the predecessor in title of the petitioner, present petition be dismissed. He has relied upon the following decisions in support of his submissions:-
(i) Maneklal Chhotalal and Others v. M.G.Makwana and Others, reported in AIR 1967 SC 1373:-Page 54 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 "The Bombay Town Planning Act, 1954 (27 of 1955) (as amended by Gujarat Act 52 of 1963) and the Bombay Town Planning Rules, 1955, make very elaborate provisions regarding the formalities to be gone through, by the local authority, by the State Govern- ment and by the other authorities concerned, in the matter of preparing and finalizing a Town Planning Scheme. At all stages, a very wide publicity is given, by the authorities concerned, in the matter of making known its proposals to the public and to the owners of land, who are sought to be affected by the Scheme. Provisions have been made for filing of objections and suggestions and the authorities being bound to take into account those objections and suggestions. The procedure to be adopted by the Town Planning Officer, in the matter of giving his decisions, on the various aspects referred to in S. 32, have been not only indicated, in t that section, but also provided for, under the Rules. As to how exactly he has to decide the particular matters, referred to in Cls. (iii),
(viii), (ix), (xi) and (xii) of S. 32 (1) N of the Act, have been indicated in the reference made by those sub-
clauses to Ss. 64, 65, 66, 67 and 68, respectively. Those sections give very clear indication as to what matters are to be adverted to by him, when a matter has to be decided in accordance with those sections. From Ss. 26 (2) (e) and p 71 of the Act it will be seen that it is not as if the Town Planning Officer is left with any unguided discretion and arbitrary power in dealing with matters Page 55 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 under S.32 (1). No doubt, every decision given by the Town b Planning Officer, under S. 32, is not appealable, but some of the important decisions that are to be given by him for instance, under Cls. (v), (vi), (viii), (ix), (x) and
(xiii), are appealable under S. 34 to a Board of Appeal, which is presided over by a Judicial Officer of the standing of a District Judge. The procedure to be adopted by that are gone Board is also clearly indicated in the rules. It is, after all these matters are gone through, that ultimately, the State Government sanctions the final Scheme. Therefore, having due regard to the substantive and procedural aspects, it is clear that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19 (5) of the Constitution. The considerations referred to above will also show that the grievance that Art, 14 is violated, is also not acceptable."
(ii) State of Gujarat v. Shantilal Mangaldas and Others reported in AIR 1969 SC 634, wherein it is observed as under:-
"12. In making a town-planning scheme the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholders. The reconstituted plots Page 56 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 having regard to the exigencies of the scheme need not be of the same dimensions as the original land. Their shape, and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town Planning Officer may lay out new roads, divert or close existing roads, reserve lands for recreation grounds schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water- supply, filling up or reclamation of low-lying, swamp. or unhealthy areas or leveling up of land so that the total area included in the schem e may conduce to the health and well-being of the residents. Since the town-planning scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community.
13. Under the Act the cost of the scheme is to be met wholly Pr in part by contributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of each plot.
14. To ensure that no undue hardship is caused and owners of plots have an opportunity of raising objections to the provisions of the scheme including its financial Page 57 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 provisions, power is conferred upon the Town Planning Officer to entertain and hear objections against the reconstitution of the plots and relating to: matters specified in s. 32 i.e. the physical, legal and financial provisions of the scheme. Only after the objections have been heard and disposed of, the scheme is published and becomes final.
15. The relation between Sections 53 and 67 which have been declared ultra vires by the High Court and the other related provisions may now be determined. Section 53 of the Act provides :
"On the day on which the final scheme comes into force,-
(a)all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encum- brances;
(b)all rights in the original plots which have been re-
constituted shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer."
The expression "re-constituted plot" is defined in s. 2(9) as meaning a plot which is in any way altered by the making of a town planning scheme and by the Explanation the word "altered" includes alteration of ownership. By cl. (b) of s. 53 ownership in a plot belonging to a person is substituted by the ownership in Page 58 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 the reconstituted plot his ownership in the original plot is extinguished and simultaneously therewith he becomes the owner of a recon- stituted plot subject to the rights settled by the Town Planning Officer. On the coming into force of the scheme all lands which are required by the local authority, unless otherwise determined in the scheme, by the operation of Section 53(a), vest absolutely therein free from all encumbrances. The result is that there is a complete shuffling up of plots of land, roads, means of communication, and rearrangement thereof. The original plots are re-constituted, their shapes are altered, portions out of plots are separated, lands belonging to two or more owners are combined into a single plot, new roads are laid out, old roads are diverted or closed up, and lands originally belonging to private owners are used for public purposes i.e. for providing open spaces, green belts dairies etc. In this process the whole or part of a land of 'one person, may go to make a reconstituted plot, and the plot so reconstructed may be allotted to another person; and the lands needed for public purposes may be earmarked for those purposes."
(iii) Girnar Traders v. State of Maharashtra and Others reported in (2011) 3 SCC 1, wherein it is observed as under:-
"81. Upon analysis of the above principles and particularly keeping in mind the negative instance in the Page 59 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 case of Mariyappa (supra), we may turn back to the provisions of the MRTP Act. The principal object of this legislation is planned development of the State of Maharashtra by preparing development plans for regions and town planning schemes and constitution of various authorities to achieve the said purpose. Incidentally, it includes the function of acquisition of land but for a very limited purpose. It is not expected of the authorities to apply to the Government for a general acquisition but the acquisition has to be of the land which is required, reserved or designated under any development plan. Thus, it is an acquisition of a very limited connotation. The MRTP Act specifies all the authorities, their respective powers and functions for attaining the object of the Act.
82. The complete scheme has been provided under the MRTP Act for attaining the object of planned development. Various provisions of the Act comprehensively prescribe what and how the steps are required to be taken by the authorities under the Act, right from the stage of preparation of draft development plan to its finalization as well as preparation and finalization of all regional and town planning schemes. The MRTP Act clearly spells out as to how these schemes are to be implemented and by whom. Right of the interested person to raise objections, pre-finalization of the respective plans, is specifically provided. The authority before whom such objections are to be raised Page 60 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 and who is to be granted hearing and by whom is clearly spelt out. There is no aspect which is not dealt with or provided for under the provisions of the State Act right from the initial stage to its final execution.
83. Besides providing right of objection to the owner of the land or property, which fall within the development plan, the State Act also provides machinery for finalization and determination of disputes between the authorities and private parties. Furthermore, a person is entitled to raise all disputes including the dispute of ownership. The Arbitrator nominated under the MRTP Act has the jurisdiction to decide all such matters. The jurisdiction of the Arbitrator is a limited one like estimation and payment of compensation in relation to plots in distinction to lands as defined under the Act within the four corners of the provisions of Sections 72 to 74 of the MRTP Act with reference to Section 97 of the State Act. Some of his decisions are final, while on most of other decisions, an appeal lies to the Tribunal.
84. The MRTP Act besides being a code in itself has one pre-dominant purpose, i.e., planned development. Other matters are incidental and, therefore, should be construed to achieve that pre- dominant 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 Page 61 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 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.
85. There can 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 Land Acquisition Act for acquisition of land for the purpose of 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 MRTP Act. Therefore, 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 Page 62 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 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 in itself.
Whether the provisions of the Central Act 68 of 1984, with particular reference to Section 11A, can be read into and treated as part of the MRTP Act on the principle of either legislation by reference or legislation by incorporation?"
8. Learned Senior Counsel, Mr.Kavina for the society has submitted that portion of land of Final Plot No.72 which is a part of Final Plot No.74 goes to the society and therefore society is an affected party. While referring to Section 49 of the Act, learned Senior Counsel, Mr.Kavina submitted that when Section 49 comes into place all development will come to a standstill and therefore when the original town planning scheme was initiated by AUDA, no permission ought to have been granted. He has submitted that only Section 49 (3) permission could be granted for development. While referring to the affidavit/undertaking of Vanmalidas Parmanand dated 8th February 2011 and agreement at page 169, he has submitted that as per these documents, the original owner has already handed over the possession of 1830 sq.mtr. of the land Page 63 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 of Survey No.387/4 of O.P.No.35, F.P.No.35 and this is position will remain in existence even without scheme is cleared by the Government. He has also referred to the documents at page 174-175, wherein also the petitioner and his predecessor in title has made agreement for handing over possession of 1830 sq.mtrs. of land. He has also submitted that these facts have been not properly explained by the petitioner and though the petitioner and his predecessor in title have handed over 1830 sq.mtrs. land yet they have entered upon it, and therefore AMC has rightly issued notice for possession thereof for TP Scheme no. 28. He has supported the submission made by the learned Senior Counsel, Mr.Desai and has submitted that the present petition be dismissed with cost.
9. In rejoinder, learned Senior Counsel, Mr.Parikh for the petitioner has submitted that so far as respondent-Society is concerned, it has no locus standi in the dispute between the petitioner and AMC. He has also submitted that it is true that the Town Planning Act is a complete Code in itself and, therefore, once the scheme has been withdrawn by the State Government and AMC has been directed to frame fresh scheme then entire process needs to be adopted by AMC, as if Page 64 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 it is a fresh scheme. He has also submitted that so far as permission for development to the petitioner is concerned, it was granted for the period between publication of scheme and sanction of the scheme. He has submitted that there is no acquiescence or waiver on the part of the petitioner, as the petitioner has put-forward his claim for correction of actual area of original plot from the very beginning. He has submitted that so far as Section 49 is concerned, it is a question of convenience only. He has also submitted that the petitioner is entitled to make representation before Town Planning Officer, who is appointed under the new Scheme. Mr.Parekh has also submitted that the land in question is still shown in the name of the petitioner and not in the name of AUDA on the basis of alleged undertaking and agreement etc. which have been relied upon by learned counsel for the other side and which are annexed at page nos.166 to 170. He has prayed to allow present petition.
10. Heard learned counsel appearing for the parties and perused the material placed on record. At the outset, it is required to be observed that the private party has filed an application for joining it as party respondent to the petition. Page 65 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 The same has been objected by the petitioner contending that the dispute is between the petitioner and AMC and the private party has nothing to do with the dispute. It is contended by the petitioner by filing affidavit that yet the land has not been allotted to the society and unless and until land is allotted finally to the society, it has no right to agitate the issue. It is also contended that by mere allotment to applicant, it has not become the absolute owner of the land as the scheme is not yet sanctioned by the Government. It is also contended that unless and until the rights are settled by the Town Planning Officer and preliminary scheme is sanctioned by the State Government under Section 65 of the Act, no right has been accrued in favour of the society and, therefore, it is not necessary or proper party for adjudication. Now, considering the material placed on record, it appears that there is some dispute regarding size of original land of Survey No.387/4. As per the records of AUDA and notification issued by the Government, the measurement of the said Survey number is shown to be 3660 sq.mtrs. It appears from map that the Final Plot No.74 has been granted to the petitioner admeasuring 1830 sq.mtrs. and the applicant society has been granted FP No.72, which is adjoining to the plot No.74. There is some Page 66 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 dispute regarding possession of the land of 1830 sq.mtrs. between the petitioner and AMC. It is contended by private party that the portion of land of petitioner is allotted to the society under Final Plot No.72. This aspect has been denied by the petitioner. However, the respondent has contended that 1830 sq.mtrs. of land has already been handed over by the petitioner to AUDA earlier for the purpose of road. Now, considering the grievance raised by the petitioner as well as private party, it appears that this dispute is not only between the petitioner and AMC but it also affects the rights of the private party. Therefore, prayer of the society to be joined as party respondent is hereby granted. Accordingly, Civil Application is allowed. The applicant is permitted to be joined as party respondent no.10 in the main petition. Since the society was already permitted to file its affidavit in reply, the same is filed and it has been considered on merits. Therefore, there is no need to pass any further order on this application.
11. Considering the submissions advanced by learned counsel appearing for the parties and the material placed on record, it is crystal clear that there is no dispute regarding earlier TP Scheme made by AUDA, which came to be returned Page 67 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 back by the State Government. It is also an admitted fact that the State Government vide Notification dated 12.5.2015 under Section 41 (1) of the Act has returned Draft Scheme to Ahmedabad Municipal Corporation to carry out the direction and to modify the Scheme in accordance with existing condition of the land falling under the Scheme, proposal of the Development Plan, Development Permissions granted by appropriate authority. It is also undisputed fact that land of Revenue Survey No.387/4 also falls in the Draft Town Planning Scheme. It also reveals that in the revenue record, Village Form No.7/12, are of revenue survey No.387/4 has been shown as 4039 sq.mtrs. At the same time, it also reveals from approved plan at page 93 that in the said document, the area of Original Plot No.35 i.e. Survey No.384/4 is shown as 3660 sq.mtrs. and Final Plot No.35, it is shown as 1830 sq.mtrs. It also reveals from this document that the Final Plot boundary and allotment of Final Plot is subject to variation by the Town Planning Officer. It also reveals from other material placed on record, which includes undertaking, Kabja Karar, Kabja Pavti at page nos.165 to 180. In such documents, revenue Survey No.387/4 is mentioned and Original Plot number is mentioned as 35 and Final Plot number is also mentioned as 35 and total Page 68 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 area has been shown as 3660 sq.mtrs. Out of which 1830 sq.mtrs. is alleged to be handed over to AUDA as 50% of the total area. This document has been signed by the petitioner's Director as well as its predecessor in title.
12. It is an admitted fact that under the Act, provision has been made for Town Planning Scheme and the Act itself is a complete Code. Under Section 48 power has been vested in the State Government to sanction draft scheme. It is worthwhile to refer to said provision, which provides as under:-
"48. Power of State Government to sanction draft scheme.- (1) The appropriate authority shall, within [three months] from the date of the publication of the draft scheme in the Official Gazette, submit the draft scheme with any modifications that may have been made therein under Section 47 together with the objections which may have been communicated to it, to the State Government for sanction. (2) If the State Government sanctions such scheme, it shall in such may think fit, the State Government may, within [three months] from the date of its receipt, by notification, sanction such scheme with or without modifications or subject to such conditions as it may think fit to impose or refuse to sanction it. [However, the State Government may, if deemed fit, by notification in the Official Gazette, return the scheme to the appropriate authority to carry out such modifications as may Page 69 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 be directed, including the direction to include or exclude any land in question in the scheme. The appropriate authority shall comply with the directions of the State Government and shall, after following the procedure as laid down under sub-
section (1) or sub-section (2) or both of Sec. 42, submit the scheme within the specified time limit to the State Government.] (3) If the State Government sanctions such scheme, it shall in such notification state at what place and time the draft scheme shall be open for the inspection of the public. [48A. Vesting of land in appropriate authority. - (1) Where a draft scheme has been sanctioned by the State Government under sub-section (2) of Section 48, (hereinafter in this section, referred to as `the sanctioned draft scheme'), all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g), or (h) of sub-section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances.
(2) Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.
(3) The provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,-
(i) sanctioned draft scheme were a preliminary scheme, and
(ii) in sub-section (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under subsection (2) of Section 48" were substituted.]"
Page 70 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022
13. At this juncture, provisions contained in Clause (c), (f), (g) and (h) of Sub-section (3) of Section 40 needs to be reproduced, which are as under:-
"Section 40 (3) A town planning scheme may make provision for any of the following matters, namely:-
........
(c) lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications;
(f) drainage, inclusive of sewerage, surface or sub-soil drainage and sewage disposal;
(g) lighting;
(h) water supply;"
14. Thus, when any land is included in the Town Planning Scheme for the purpose of Road, as per Sub-clause (c) of Sub-
section (3) of Section 40, it would vest in appropriate authority under Section 48-A of the Act.
15. In view of the provisions contained in Sub-section (2) of Section 48, the State Government has power to sanction the Page 71 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 scheme with or without modification or subject to such conditions, as it may think fit to impose or refuse to sanction it. It is also provided therein that the State Government may by Notification in official gazette return the Scheme to appropriate authority to carry out such modification as may be directed, including the direction to include or exclude any land from the Scheme. This sub-section also provides that on such direction, appropriate authority shall comply with the direction of the State Government, which, after following the procedure as laid down under Sub-section (1) or Sub-section (2) of Section 42, submit the Scheme within specified time limit to the State Government. Thus, in case of direction by the State Government for modification of the Scheme, appropriate authority has to follow the procedure, which is enumerated in Section 42. Thus, it is incumbent upon such appropriate authority to make a draft scheme of the area. Now admittedly in the present case, the Government has not sanctioned Original Draft Scheme prepared by AUDA being Town Planning Scheme No.28 and it has returned the same and directed AMC to prepare the same with modification, as stated herein above. Page 72 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022
16. It is also pertinent to note that as per Section 44, Draft Scheme shall contain various factors, which have been enumerated in the said Section. As per Section 45, the authority can reconstitute the plots. As per Section 45 (2), the Draft Scheme may contain proposal (a) to form a Final Plot by reconstitution of Original Plot by alternation of its boundaries;
(b) to form a Final Plot from an Original Plot by transfer of any adjoining lands; (c) to provide with consent of the owners that two or more original plots, which are owned by several persons or owned by person jointly be held in ownership in common as Final Plot with or without alteration of boundaries; (d) to allot Final Plot to any owner dispossessed of land in furtherance of the Scheme; and (e) to transfer the ownership of plot from one person to another. Thus, the power has been vested in appropriate authority to prepare Draft Scheme and for doing so, it can re-constitute the plot. The Act also provides for termination of any dispute regarding ownership. At this stage, provisions of Section 46 needs to be referred to, which provides as under:-
"46. Disputed ownership. - Where there is a disputed claim to the ownership of any place of land included in an area in Page 73 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the appropriate authority or the Town Planning Officer at any time prior to the date on which the Town Planning Officer draws up the preliminary scheme under Section 51 by such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purposes of this Act. (2) Such decision shall not be subject to appeal but it shall not operate as a bar to a regular suit in a Court of competent Jurisdiction.
(3) Such decision shall, in the event of a Civil Court passing a decree which is inconsistent therewith, be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the appropriate authority by the person affected by such decree."
17. In view of the provisions contained in Section 46, as above, if there is any dispute regarding ownership of any land, then inquiry is to be held at any point of time, prior to the date on which Town Planning Officer draws up the preliminary Scheme under Section 51. Thus, the mechanism for redressal of dispute regarding ownership of any land including an area in respect of which declaration of intention to make a Scheme Page 74 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 has been made is provided. At this stage, it is worthwhile to refer to Town Planning Rules, 1979 especially Rule 26, which provides for procedure to be followed by Town Planning Officer under Section 51 and under Sub-section (1) of Section 52. Sub- rule (4) and (5) of Rule 26 provides as under:-
"26. Procedure to be followed by Town Planning officer under section 51 and under sub-section (1) of section 52. .............
(4) The Town Planning Officer shall give every person interested in any land affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations if any.
(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme, the town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefore. All such minutes shall be appended to the scheme."
18. In the present case, it is an admitted fact that the Town Planning has not been finalized under Section 65 of the Act. Admittedly, as per the pleadings of the petitioner himself, portion of the land in question, admeasuring 2012 sq.mtrs. Page 75 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 came to be deducted for road widening for Khodiyar-Sarkhej Road in the year 1974-75. It is also averred that, at that time, the area admeasuring 4969 sq.mtrs. was left with the predecessor in title of the petitioner herein. According to the petitioner's version, the same was given effect in 7/12 extract by entry no.4419 in the year 1993, which came to be certified by the competent authority. The petitioner has also pleaded that the land admeasuring 830 sq.mtrs. out of total area of land admeasuring 4969 sq.mtrs. was acquired by the State Government for expanding the Sarkhej-Gandhinagar National Highway 8A. It is also the case of the petitioner that in the Kami Jastak Patrak, at the relevant time, land was shown as 4039 sq.mtrs. after deducting the area of 830 sq.mtrs. Of course, it is the say of the petitioner that there is a mistake in mentioning the area, as it ought to be 4139 sq.mtrs. Further, it is the version of the petitioner that under Section 41 of the Act, AUDA declared its intention to frame the TP Scheme No.28 (Ghatlodiya-Sola-Chandlodiya) and same was published in official gazette on 20.4.2000. According to the petitioner, at that time, land bearing revenue Survey No.387/4 was given OP No.35. However, the plot was erroneously shown as 3660 sq.mtrs. instead of actual area of 4139 sq.mtrs. and after Page 76 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 deducing 50% from the Original Plot No.35, measurement of which was shown as 3660 sq.mtrs., Final Plot No.35 admeasuring 1830 sq.mtrs. was proposed to be allotted to the predecessor in title of the petitioner. Thereafter, the petitioner has purchased the said land vide registered Sale Deed No.9085 dated 24.5.2010 i.e. after almost ten years. Thus, admittedly, when the petitioner herein purchased the land, he has purchased the land as was available with his predecessor in title.
19. It also appears that, after purchasing the land, the petitioner has also got permission for construction on land admeasuring 1830 sq.mtrs. and in the map also, total area of the land is shown as 3660 sq.mtrs. It also reveals from the pleadings of the petitioner that the Town Planning Scheme started by AUDA was not sanctioned by the State and ultimately, as the entire area came in the Ahmedabad City, due to extension of city limits, therefore, the State Government has directed AMC to frame the Town Planning Scheme, as per existing land. It also reveals that petitioner has also stated that while preparing the draft Town Planning Scheme No.28, the respondent-Corporation, without carrying Page 77 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 out the physical survey, reiterated the land of the petitioner being revenue Survey No.387/4 as O.P. No.74, admeasuring 3660 sq.mtrs. instead of 4139 sq.mtrs. and, thereby proposed to allot Final Plot No.74 admeasuring 1962 sq.mtrs. It is also pleaded that, as per the draft T.P.Scheme, portion of land of the petitioner owned land bearing Revenue Survey No.387/4 is kept for reservation for open space being Final Plot No.132, portion of land is going in 12 mtr. TP road and portion of the land is proposed to be going in Final Plot No.72.
20. All these averments of the petitioner clearly reveal that at the relevant point of time, portion of the land was laid out for Road purpose and, therefore, by virtue of Section 48A of the Act, such land would automatically vest into appropriate authority. It is also pertinent to note that if we calculate the portion of the land, that might be available to the petitioner, if his land is considered to be 4139 sq.mtrs. instead of 3660 sq.mtrs. then there would be difference of 479 sq.mtrs. Now, admittedly 50% of the land is to be deducted and on doing so, out of the land of 479 sq.mtrs. 239.5 sq.mtrs. would be also deducted from this land of the petitioner. Now, admittedly, 1830 sq.mtrs. was proposed to be allotted to the petitioner. Page 78 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022 Therefore, if the actual measurement of the plot is taken to be 4139 sq.mtrs. then further land which would be available to the petitioner is 2069.5 sq.mtrs. Now, as pleaded by the plaintiff, in a new draft scheme, it is proposed to be allotted 1962 sq.mtrs. of land. Therefore, there would be less land of 107.5 sq.mtrs. only. This calculation is based upon the averment of the petitioner that there is mistake in mentioning original land in 7/12 extract. However, in revenue record, after deducting 830 sq.mtrs. for national highway, the total area has been shown as 4039 sq.mtrs. Therefore, at this stage, the measurement, as shown in the revenue record i.e. 4039 sq.mtrs. might be taken into consideration. Even if we consider that the authority could have considered area of the plot as 4039 sq.mtrs. instead of 3660 sq.mtrs. then there would be a difference of 379 sq.mtrs. of land only. If 50% deduction is made out of it, it would be 189.5 sq.mtrs. which might be made available to the petitioner. Therefore, if this portion of 189.5 sq.mtrs. is added to the present allotment of 1830 sq.mtrs. then it would come to 2019.5 sq.mtrs. Now, as averred by the petitioner, in new Town Planning Scheme, land to be allotted to be petitioner is shown as 1962 sq.mtrs. Therefore, if we calculate the land which might be less Page 79 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022 C/SCA/23012/2019 ORDER DATED: 22/12/2022 available to the petitioner would be 2019.5 less 1962 = 57.5 sq.mtrs. only. Now, admittedly, the petitioner is not entitled for the entire piece of land bearing survey No.387/4 and is only entitled for 50% thereof. It is also admitted fact that out of 50% of total area, as considered by the authority being 3660 sq.mtrs., the petitioner has already constructed over the land of 1830 sq.mtrs. Thus, considering that the portion of the land which might be available to the petitioner is not entire 1830 sq.mtrs. as well as the fact that portion of the land is reserved for open road, the land would vest in appropriate authority. Further, it is pertinent to note that the petitioner has not disclosed the fact that earlier it has signed the agreement and filed undertaking before AUDA. This fact has been brought on record by the respondent-Corporation. Thus, there is suppression of fact by the petitioner, which dis-entitles him to claim equitable relief. Under these circumstances, considering the provisions of the Act, the petition is liable to be dismissed.
21. In view of above discussion, if the following order is passed, it would meet the ends of justice.
Page 80 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022
C/SCA/23012/2019 ORDER DATED: 22/12/2022
22. Civil Application No.1 of 2020 filed by the society for being joined as party to the petition is allowed and the society is joined as respondent no.10 in the main petition.
23. In view of above discussion, present petition being Special Civil Application No.23012 of 2019 is dismissed. Interim relief, if any, stands vacated. Notice is discharged. No order as to costs.
Sd/-
(DR. A. P. THAKER, J) Further Order
24. At this stage, learned advocate for the petitioner requests to continue the order of status quo granted by this Court from the very beginning, which was continued till today. The same is objected by learned advocate for the other side. Considering the fact that initially this Court has granted status- quo, which is continued till today, in the interest of justice, the same is ordered to continue for a further period of two weeks from today.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 81 of 81 Downloaded on : Sat Dec 24 04:39:01 IST 2022