Gujarat High Court
Patel Jitendrakumar Ramabhai vs State Of Gujarat on 7 August, 2025
NEUTRAL CITATION
C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9669 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9669 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
YES
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PATEL JITENDRAKUMAR RAMABHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ASIM PANDYA, SENIOR ADVOCATE with
MR GAURAV VYAS(9855) for the Petitioner(s) No. 1,2,3,4,5
MR SHYAM M SHAH(11348) for the Petitioner(s) No. 1,2,3,4,5
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR ANSHIN DESAI, SENIOR ADVOCATE with
MR ABHIJIT RATHOD(12976) for the Respondent(s) No. 6
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 3
MS. KRUPA P SONI(10048) for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 2,4,5
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 07/08/2025
ORAL JUDGMENT
1. Rule. Learned advocates waive service of notice on behalf of their respective respondents. Considering the issue involved and with the consent of learned advocates for respective parties, this petition is taken up for hearing today.
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2. This petition is filed challenging the action of respondent No. 4 - Town Planning Officer, whereby the Town Planning Officer has approved the revised Layout Plan, submitted by respondent No. 6, for Revenue Survey No. 64 - Final Plot No. 60/P (DTPS No. 4) at Himmatnagar, District: Banaskantha.
3. It is case of the petitioners that the action of respondent No. 4 in approving the revised Layout Plan for Survey No. 64
- Final Plot No. 60/P (DTPS No. 4) at Himmatnagar District Banaskantha (hereinafter referred to as 'the property in question') is arbitrary, without following due process of law and in gross violation of principles of natural justice and therefore deserves to be quashed and set aside. A prayer to restrain respondent No. 6 to make further construction and to maintain status quo in respect of subject land is also prayed.
4. The facts in brief as referred in the petition are as under:
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The petitioners are sub-plot owners having rights in common with regard to the internal road shown in the group sanctioned layout plan and since that common right is being extinguished upon sanctioning of revised development permission granted to respondent No. 6, the petitioners have Page 2 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined filed this petition. It is the case of the petitioners that the development permission granted as per the layout plan is covering the common road which would amount to encroachment on the road and the road being internal road, the same is required to be kept open for the public at large. Further in this case the revised layout plan dated 07.01.2018 - Mercantile - 1 (commercial) Survey No. 64 paiki, Final Plot No. 60/2 P (DTPS No. 4) at Himmatnagar, District Sabarkantha was approved by respondent No. 4 authority, pursuant to which development permission dated 31.08.2021 (Annexure-P2, Page No. 19) was granted having Rajachitti No. 1482 of 2021/22. Since Rajachitti granted is in violation of conditions referred in the order of non-agricultural use permission, the same deserves to be quashed and set aside.
5. Heard learned Senior Advocate Mr. Asim Pandya assisted by learned advocate Mr. Shyam Shah and learned advocate Mr. Gaurav Shah for the petitioners and learned advocate Mr. Nikhilesh Shah for respondent No. 3, learned Senior Advocate Mr. Anshin Desai for learned advocate Mr. Abhijit Rathod for respondent No. 6 and learned Assistant Government Pleader Ms. Suman Motla for respondent - State.
6. Learned Senior Advocate Mr. Asim Pandya for the petitioners submitted that the action of respondent No. 4 in Page 3 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined sanctioning the layout plan (Annexure-P1, Page No. 18), granting Rajachitti dated 31.08.2021 is illegal and erroneous. From the map at Annexure-P1, it is evident that there is encroachment on 6-meter common road by merging the same in to certain sub plots. Earlier to encroachment of 6 meters common road, the road was within single plot when the plan was approved. Therefore, if a layout plan at Page No. 18 is compared with plan at Page No. 53, which is measurement map of District Inspector Land Record (DILR) it depicts that, 6 meters road shown as 'Lagu binkheti Road' in the map. Thus, the encroachment is evident from comparison of two maps. Further, additional 6 meters development plan road is available to all sub plot owners since it is a common road as 30 meters DP road was reduced to 25 meters DP road. Most importantly, no authority under law has permitted the merging of 6-meter road vested into common plot of respondent No. 6. This aspect is more evident from all non-agricultural permissions, Government Resolution, opinion of Town Planning Officer, Circle Officer and covenants of sale deed that internal road is required to be kept open. In other words, in all these documents, keeping 6 meters road available to all the owners being common road is one of the conditions. Therefore, it is clear that only by way of impugned layout plan approved by the authority, the road has been merged surreptitiously by respondent No. 6.
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6.2 Reliance was also placed by Learned Senior Advocate Mr. Pandya on sale deed (Page No. 35) to submit that as per the sale deed also, the petitioner has a right of use to the internal roads, and if revised layout plan is permitted then the petitioners' right of way to the internal road, gets extinguished. Further, non-agricultural permission granted by Collector under order dated 10.10.2008 (Annexure-P6, Page No.
40) also supports the case of the petitioners where under Condition No. 27, the common plot is kept in the ownership of all plot holders. Even the revised non-agricultural permission Page 5 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined dated 29.05.2019 (Page No. 60) and Condition No. 35 (Page No. 63) therein also refers to common use of the road by all plot holders. Therefore, as per non-agricultural permissions the internal roads shown in the original layout plans are required to be kept open and, in this case, this internal road is merged in a single plot without taking any permission from other sub- plot holders.
6.3 Further, in this case, upon approval of the layout plan conditions of development permission got breached. Condition No. 18 of the development permission refers to prevalent conditions to be satisfied. Further, Condition No. 30 states that the conditions referred at the time of granting non-agricultural permission is also to be complied with and in this context, if the non-agricultural permission is perused then it refers to use of 6-meter road by all plot holders. Thus, there is breach of Condition Nos. 18 and 30 and therefore the approval granted for revised layout plan deserves to be quashed and set aside as per Condition No. 36.
6.4 In relation to Government Resolution dated 13.09.1993 (Page No. 46) learned Senior Advocate submitted that as per this Government Resolution also, land of road is in common ownership of plot holders and such land cannot be alienated. Clause 2 of the resolution on which heavy reliance is placed Page 6 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined by respondent No. 6, will not be applicable in this case. Clause-2 of G.R. dated 13.09.1993, will be applicable only in the cases where, there is reconstitution of plot or merging of plot as provided under Section 52 of the Town Planning Act. In this case, no such reconstitution of plot or merging of plots have been proposed by Town Planning Officer as per the Draft Town Planning Scheme for Survey No. 64 paiki renumbered as Final Plot No. 60/2. In this case, original Survey No. 64 has been renumbered as Final Plot No. 60/2 and there is no change in the original plot as there is no reconstitution of sub- division of plot or no proposal to close the internal road permanently and provide any other road as a substitute of existing internal road. In this case, the provision of Town Planning Act is not applicable.
6.5 Learned Senior Advocate further submitted that Town Planning Officer gave its opinion dated 15.11.2018 (Page No.
49). In the said opinion, Condition No. 4 (Page No. 50) suggest that, if the final plot is affecting the TP road, then consent of other plot owners is required which is missing in this case. Further, in one more opinion of Town Planning Officer dated 07.01.2019 (Annexure-P9, Page No. 54), Condition No. 19 refers to no ownership of parties on a common road. Similarly, one more communication of March, 2019 (Page No. 58) refers that for revised non-agricultural permission, opinion of Page 7 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined competent authority will be taken. Therefore, when revised non-agricultural use permission was granted vide order dated 29.05.2019 (Annexure- P-11 Page-60), it refers to conditions to be fulfilled, where, condition of use of internal road as common road is referred. Thus, at no stage the permission was granted to merge 6 mtrs road into the plot of respondent No. 6 which has been approved in the revised development plan. Further, the admission by the approving authority that error has crept in approving the plan and the road has disappeared is evident from Paragraph Nos. 4 and 5 of the affidavits filed by respondent No. 3 - Himmatnagar Nagarpalika. This aspect is once again been supported by the sale deed (Page No. 35) wherein the sale deed of respondent No. 6 stipulates that he will be entitled to use the roads as roads only and therefore respondent No. 6 is aware about the fact that he is not the owner of common road and therefore there is clear encroachment.
6.6 Learned Senior advocate in support of his submission placed reliance on the decision of Anjuman E Shiate Ali v.s. Gulmohar Area Societies Welfare Group reported in 2020 (0) AIJEL SC 66231 to submit that as held by the Hon'ble Supreme Court it is fairly well settled that in an approved layout, open spaces which are left are to be continued in that manner alone and no construction can be permitted in such Page 8 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined open spaces. Therefore, present petition is required to be allowed by directing the official respondents to quash and set aside the development permission dated 31.08.2021 for subject plot.
7. Opposing the petition, learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. Abhijit Rathod for respondent No. 6 submitted that this petition is misconceived and the same deserves to be dismissed on the ground that the petitioners are having alternative efficacious remedy of filing appeal challenging the development permission dated 31.08.2021 under Section 6(b)(2) of the Town Planning Act. This petition is filed with a malafide intent and at a belated stage without their being any crystallized rights in favour of the petitioners. Hence, in absence of locus standi in favour of the petitioners, this petition deserves to be rejected on this ground alone.
7.1 Further, this petition is not filed by the Society and only 5 busy bodies are here before the Court where, the plots of the petitioners are at Plot Nos. 9, 14, 19, 28 and 36 and they are far away from the subject plot. Undisputedly, respondent No. 6 is owner of whole Survey No. 64 paiki now Final Plot No. 60/2. Therefore, since the entire plot is in ownership of respondent No. 6, the grievance raised by the private Page 9 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined respondent would not be maintainable.
7.2 On merits, learned Senior Advocate submitted that undisputedly vide order dated 16.01.2003 (Page No.23) a non- agricultural permission was granted for residential-cum- commercial purpose for Survey No. 64 paiki including subject plot in favour of respondent No. 6. Respondent No. 6 after having sub-plotting sold the said sub-plots to individual plot owners and retained the subject plot. The whole subject plot was treated as one parcel of land and accordingly, a compound wall was built around the same. Therefore, the ownership of subject plot as one common plot in favour of respondent No. 6 is not in dispute. Thereafter, a revised non-agricultural permission was granted by order dated 10.10.2008 (Page Nos. 40 to 44) for part of subject plot i.e. plot Nos. 1, 46 to 54 for commercial use. In the permission dated 10.10.2008, Condition No. 27 (Page No. 42) states that the internal roads were to be considered according to Government Resolution dated 13.09.1993. The Government Resolution dated 13.09.1993 is at Page No. 46. If the Government Resolution dated 13.09.1993 is perused, then Condition No. 2 of the said Government Resolution provides that when the Town Planning Act and Rules are made applicable and where Town Planning Scheme or Draft Town Planning Scheme is prepared / published then in such a situation, the layout plan is to be sanctioned Page 10 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined according to the Draft Town Planning Scheme or the Preliminary Town Planning Scheme, and in such cases, the Government Resolutions / Instructions are not to be considered. If in this context the facts are seen then in this case, Draft Town Planning Scheme was sanctioned vide notification dated 02.11.2011 (Page No. 92), and therefore the conditions referred at the time of granting non-agricultural permission would not be applicable. In other words, the Government Resolution dated 13.09.1993 would not be applicable, in this case.
7.3 In the above context, if the chronology is seen then on 02.11.2011, the Draft Town Planning Scheme was sanctioned by the State Government. Thereafter, on 07.01.2019, the impugned layout plans were approved. Accordingly, a revised non-agricultural permission was granted by the Collector for subject plot on the basis of impugned layout plan vide its order dated 29.05.2019 (Page No. 60). The petitioners have neither challenged the revised non-agricultural permission nor the layout plan though approved in the year 2019. Further the development permission granted vide order dated 31.08.2021 is in consonance with the provisions of the Act and applying the Government Resolution dated 13.09.1993 and therefore this petition deserves to be dismissed.
7.4 Moreover, in this case, the petition was preferred in the Page 11 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined year 2022 and that too after respondent No. 6 has substantially invested the amount for development. Considerable work has been initiated and thereafter the present petition is preferred causing monetary loss to respondent No. 6. Moreover, in this case, all the authorities have filed their reply. In the reply affidavit filed by Municipal Corporation (Page No. 80) it is stated that the authorities have acted as per revised non- agricultural permission granted by the Collector.
7.5 Further, in the reply affidavit of the State Government - respondent Nos. 1 and 4 it is stated that the Town Planning Scheme No. 4 - Himmatnagar was sanctioned by notification dated 02.11.2011 after following the due process and with all the permissions. Therefore, once the Town Planning Scheme has been sanctioned vide notification dated 02.11.2011; the Government Resolution dated 13.09.1993 would not be applicable. Moreover, it cannot be ignored that this is private dispute between the petitioners and respondent No. 6. Other private land owners who are adjacent to respondent No. 6 are not before this Court.
7.6 Learned Senior advocate in support of his submissions has relied upon the decision of Hon'ble Supreme Court in the case of Dr. Ranbeer Bose and Anr. v.s. Anita Das and Anr reported in 2024 (0) AIJEL-SC 73612 to submit that if a private person Page 12 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined is aggrieved of irregularity committed which is in nature of private dispute, then writ under Article 226 of the Constitution of India would not be maintainable.
8. Considered the submissions and the decisions relied upon. From the submissions of the petitioners, it is noticed that the challenge is made to the development permission granted dated 31.08.2021. It is grievance of the petitioners that the said development permission refers to the earlier permission granted by Collector and other such authority while considering the application of respondent No. 6 for change in use from agricultural to non-agricultural purpose. If the order granting earlier permission dated 16.01.2003 (Page No. 23) is referred then the permission was granted for residential cum commercial purpose for Survey No. 64 Paiki. After the NA permission under order dated 16.01.2003, respondent No. 6 did sub plotting and sold some of the sub plots to other individuals who are holder of the said sub plots and retained the property in question. Thereafter, a revised development permission was sought for the plot in question i.e. plot Nos. 146 to 254 for commercial use and in response to the same, order dated 10.10.2008 was passed (Page Nos. 40 to 44). If the order dated 10.10.2008 is perused, then condition No. 27 refers to develop internal roads and common plot as per Government Resolution dated 13.09.1993 (Page No. 46).
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9. It is further noticed that heavy reliance is placed by the petitioners on the conditions referred, in two non-agricultural use orders dated 16.01.2003 and 10.10.2008. In both these orders, conditions to maintain internal roads for common use of all the plot holders have been referred; however, both these orders are prior to sanctioning of Draft Town Planning Scheme vide notification dated 02.11.2011. Therefore, in the opinion of this Court when the revised development permission was granted vide order dated 29.05.2019 (Page No. 60) by the Page 14 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Aug 18 2025 Downloaded on : Fri Aug 22 22:52:52 IST 2025 NEUTRAL CITATION C/SCA/9669/2022 JUDGMENT DATED: 07/08/2025 undefined Collector, the reference made of Government Resolution dated 13.09.1993 is to be given effect to. Clause 2 of Government Resolution dated 13.09.1993, provides that in such cases (in the cases where Town Planning scheme and development plan has been prepared and published) the Government Resolution/ instructions are not to be considered. Therefore, the earlier instructions on which heavy reliance is placed by the petitioners shall have to be ignored, and thus, there is no error in the development permission granted to respondent No. 6 vide order dated 31.08.2021.
10. Further, the decision relied upon by learned advocate for the petitioner in the case of Anjuman E Shiate Ali v.s. Gulmohar Area Societies Welfare Group reported in 2020 (0) AIJEL SC 66231 would not be applicable in the facts of this case, since in the case relied upon issue was with regard to open space to be left for approval of layout plan and that was subsequent to sanctioning of Draft Town Planning Scheme which is not the issue here and therefore the same would not be applicable.
11. In view of above, the present petition being devoid of any merits deserves to be dismissed and is hereby dismissed. Rule is discharged.
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12. In view of disposal of main matter, connected Civil Application would not survive and is disposed of accordingly.
sd/-
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