Gujarat High Court
Gujarat State Cooperative Marketing ... vs State Of Gujarat & 2 on 24 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11599/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11599 of 2013
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GUJARAT STATE COOPERATIVE MARKETING FEDERATION LTD &
1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1, 3
MR HIMANSHU K PATEL, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 24/04/2017
ORAL ORDER
1. Heard Mr. Dipen Desai, learned advocate for the petitioners and Mr. P.G. Desai, learned senior advocate with Mr. Himanshu Patel, learned advocate for respondent no.2 and Mr. Venugopal Patel, learned AGP for respondents no.1 and 3.
2. By way of this petition under Article 226 of the Constitution, the petitioners have prayed for the following reliefs "be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the finalization of the preliminary town planning scheme No.56(NarolShahwadi) towards Final Plot No.30/1 reducing Original Plot from 31749 square meters at AnnexureA to the petition, the order passed by respondent No.2 dated 30.4.2013 at AnnexureB to the petition and Page 1 of 26 HC-NIC Page 1 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER also the order passed by respondent No.1 dismissing the representation made by the petitioner No.1 dated 25.6.2013 at Annexure C to this petition.
3. The following facts emerge from the record of the petition 3.1 That the petitioner no.1 is a federation established in the year 1960 and as per the say of the petitioner, about 1386 cooperative societies are affiliated with the petitioner no.1 federation and approximately 5000 cooperative societies are working with the petitioner. It is the case of the petitioners that the petitioner federation is the helping agency for the agricultural crops and trying to get maximum price for the farmers of the State. It is also the case of the petitioners that the petitioner federation has processing units for pulse mill, rice mill, oil mill, cotton ginning and pressing unit etc. 3.2 The record indicates that big processing unit was established by the petitioner no.1 federation over the land in question situated at Narol (now forming part of the city limits of Ahmedabad city) in the year 1972. It is the case of the petitioners that the petitioner federation has constructed different godowns, different plants and open space is utilised for storing different agricultural produces and also for the purpose of packing seeds.
Page 2 of 26HC-NIC Page 2 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER 3.3 As the record indicates, the land in question being Revenue Survey No.20/2 Part and 20/1 to 7 was included in the map of Town Planning Scheme No.56(Narol) (hereinafter referred to as the "Scheme" for the sake of brevity). It also appears that the original survey number of the petitioners was alloted Original Plot No.20/1 and 20/3. The record further indicates that the petitioners were served with notice by the Town Planning Officer on 25.06.1999, which was replied by the petitioner No.1 on 16.02.2004. The Scheme in question ultimately came to be sanctioned under the provisions of Section 65(3) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the "Act" for the sake of brevity) and the petitioner no.1 was served with a notice for implementation of the same. At that juncture, the petitioners preferred petition before this Court being SCA No.2629/13, which came to be disposed of by an order dated 07.03.2013. The record also indicates that thereafter, the petitioners had also filed representation which came to be rejected and therefore, the present petition is filed.
4. It is contended by the petitioners in the petition that it is the duty of the respondent authorities to see that as far as possible, the Page 3 of 26 HC-NIC Page 3 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER existing structure is required to be maintained. It is the case of the petitioners that entrance and the guard room of the premises would be adversely affected by the Scheme and some open space which is utilised for processing of seeds, pulse, rice and even to dry products shall be affected and it would amount to closure of some of the processing units and shall be impossible for the petitioner no.1 to carry out other processing units and it would be not only be loss to the petitioner no.1 federation but also to the farmers of the State.
5. It is also contended that while deciding the representation dated 20.03.2013 filed by the petitioners pursuant to the order passed by this Court in SCA No.2629/13 dated 07.03.2013, hearing was given and the Engineer of the petitioner no.1 federation remained present before respondent no.1 and gave every details. However, the same is not considered and the same is in breach of the spirit in which the Hon'ble Court had passed the order. By way of an amendment, the petitioners have also brought on record the fact that the petitioner federation is running the factory in the form of Small Scale Industry and has brought on record the certificate issued by the District Industrial Centre, Ahmedabad, the license issued by the competent authority for running rice and pulse mills and the factum that the petitioner federation has paid all the taxes.
Page 4 of 26HC-NIC Page 4 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER It is contended further in the petition that the respondent authorities have no right to prepare the scheme which would amount to closing down the useful processing units of the petitioner no.1 federation and therefore the scheme is arbitrary and violative of Article 14 of the Constitution of India. Relying upon the provisions of Section 45(1) of the Act, it was contended by the petitioners that duty is cast upon the respondent authorities at the time of framing of the Scheme that the Town Planning Scheme is to be framed in such a fashion that it would not affect the existing structure which is arbitrary and violative of Article 14 of the Constitution and in breach of the provisions of Section 45 of the Act.
6. It is reiterated that if the scheme is implemented, the petitioners would be compelled to handover possession of the land which is forming gate, security room and other godowns and units would be adversely affected, which would amount to exposing all processing units without any gate which is not permissible under the Act and the processing units of the petitioners shall have no gate. It is also reiterated that the open place which is used by hundreds of women workers who are engaged in weighing and packing the seeds in the open plot will not get any place and in such an event, the seeds unit will be required to be closed down and the farmers of Page 5 of 26 HC-NIC Page 5 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER Gujarat will be deprived of pure and qualitative seeds at the affordable rate from the petitioner no.1 and therefore, it is contended that the Scheme is not in the interest of farmers of the State. It is also contended that the orders are passed without considering the provisions of Section 70 of the Act under which the State Government has powers to make variance in the Scheme considering the case of the petitioners and it is contended that the impugned order is passed as if the authorities have no power to vary the scheme. It is therefore contended that nonexercise of power and nonconsideration of the provisions of Section 70 of the Act has resulted into serious miscarriage of justice.
7. It is also averred that the sole purpose of reducing the original plot is to create funds and the Act is not enacted for generation of funds, but under the guise of development for creating funds, the land belonging to the petitioner no.1 has been deducted and therefore, the scheme is arbitrary and violative of Article 14 of the Constitution. It is also contended that none of the authorities have contended that the land is required to be maintained for commercial purpose. The order indicates that reduction is not for the purpose of development, but for generating the funds.
8. It is also contended that even though the Page 6 of 26 HC-NIC Page 6 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER petitioners have submitted all required documents, the same are not considered and therefore, the decision at AnnexureB is perverse and violative of Article 14 of the Constitution. It is also contended that the premises of the petitioners exist before the scheme prior to the preparation of the scheme and therefore, if the margin is not maintained and the open space is not be maintained, it would be in violation of Section 45 of the Act and therefore, the scheme is arbitrary and violative of Article 14 of the Constitution.
9. The respondent no.2 AMC has filed an affidavit inreply. The Corporation has brought on record the following dates, which indicates the procedure followed by the Corporation as well as State Government for preparation of the Scheme in question which are follows Sr. Particulars Date No. 1 Consultation given by Chief 20.04.1991 Town Planner 2 Resolution for declaration 25.06.1991 of intention by General Board 3 Declaration of intention 03.07.1991 4 Declaration published in 08.07.1991 official gazette 5 Declaration published in 08.07.1991 Gujarat Samachar and Jaihind newspapers 6 Draft Scheme published 13.01.1995 under Section 42 of the Act Page 7 of 26 HC-NIC Page 7 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER and came to be sanctioned 7 Appointment of Town 09.03.1995 Planning Officer 8 Sanction of Preliminary 22.02.2012 Scheme
10. The Corporation has also brought on record that as per the draft town planning scheme, survey Nos.20A, 20B and 20(2) were merged and given Original Plot No.20. Original Plot No.20A belonged to one Momin Cooperative Housing Society. The petitioners were given Original Plot No.20/3 and final plot no.30/1 and the remaining part of Survey No.20/2 to 7 and 20/7 part being original plot no.20/2 admeasuring 1922 sq. mtrs. have gone in town planning road. The respondent Corporation has relied upon the F form as well as part plan of the preliminary town planning scheme which came to be sanctioned vide notification dated 22.02.2012. It is also contended by the respondent Corporation that as per the order dated 07.03.2013 passed by this Court, the representation was filed by the petitioners to the State Government and the Commissioner of the Corporation and the petitioners were given opportunity of being heard and thereafter, the decision dated 30.04.2013 was taken by the Corporation and by a decision dated 25.06.2013, the State Government decided the said representation after giving an opportunity of being heard to the petitioner. It is contended that the Scheme has become part of the Act and Page 8 of 26 HC-NIC Page 8 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER the land reserved for the appropriate authority is vested in the appropriate authority free from all encumbrances. It is therefore contended that the petition deserves to be dismissed.
11. The petitioners have also filed rejoinder and have merely denied the contentions raised by the respondent Corporation in its affidavit.
12. The learned counsel for the petitioners has at the outset submitted that the present petition is only limited to the aspect of variation. Mr. Desai, learned counsel appearing for the petitioners further submitted that it is an appropriate case to vary the scheme inasmuch as that the oil seed factory of the petitioner shall be disturbed. It was contended that reservation for sale for commercial is not necessary at all and the authority ought to have exercised the power of variation. The learned counsel also submitted that the notice given by the Town Planning Officer was replied, which has not been considered. The learned counsel appearing for the petitioners has therefore submitted that the petition deserves to be allowed. The learned counsel for the petitioner has relied upon the judgments of this Court in the case of Kartik Mohanbhai Patel Vs. State of Gujarat reported in 2001(4) GLR 3028 and in the case of Mukundlan Trikamlal Patwa vs. State of Gujarat & Ors. reported in 2007(1) GLR 761.
Page 9 of 26HC-NIC Page 9 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER
13. The learned counsel appearing for the Corporation has contended that the Town Planning Scheme has been prepared after duly following the procedure as envisaged under the Act and applicable Rules and after considering the objections raised by the petitioners and the same has become a part of the Act. It was further pointed out that the respondent authorities before passing orders upon the representation filed by the petitioners has given opportunity of being heard to the petitioners and has rightly considered the same. Relying upon the order dated 30.04.2013, it was contended that the Town Planning Officer has considered the construction which was already existing at the time of preparation of the preliminary scheme and as such no construction of godowns or pulse mills are affected. It was contended that the scheme is legal and proper and is not required to be varied as rightly decided by the respondent Corporation as well as the State Government. It was also contended that the allocation made under the Scheme is as per the provisions of the Act for development of the whole town planning scheme area and only because the petitioner no.1 is a State level federation, it cannot insist for zero deduction in the scheme. It was therefore contended that no interference is called for and the petition deserves to be dismissed.
Page 10 of 26HC-NIC Page 10 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER
14. No other or further submissions are made by the learned counsel appearing for the parties.
15. Before reverting to the submissions made by the learned counsel appearing for the parties, it would be appropriate to note that from the record of the petition, it is quite clear that the authorities including the Corporation and the Town Planning Officer as well as the State Government have scrupulously followed the procedure as envisaged under the provisions of the Act for preparing, publishing and sanctioning the scheme in question right from Section 40 to Section 65 of the Act. It also deserves to be noted that as such the learned counsel for the petitioners has also contended that the petition is more directed towards the variation aspect.
16. With the consent of the learned counsel appearing for the parties, this Court called for the original proceedings of the Town Planning Scheme relating to the land in question for perusal and as such the relevant documents are also found on record of this petition. It deserves to be noted that a notice was given by the Town Planning Officer on 13.11.1998, whereby the petitioners were informed that the Town Planning Officer has entered his duties as Town Planning Officer as far as the scheme is concerned and also the fact that the draft town planning scheme is sanctioned asking the petitioners to remain present in Page 11 of 26 HC-NIC Page 11 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER person on 26.11.1998. A further notice was given by the Town Planning Officer on 21.06.1999 asking the petitioners to remain present before him on 29.06.1999. It also appears from the record that the petitioners through their Civil Engineer filed objection in respect to the notice dated 21.06.1999 on 06.07.1999, which only pertains to the financial aspect of the scheme. The record indicates that thereafter, again a notice was issued by the Town Planning Officer after reconstitution of the plots in question on 24.03.2003 asking the petitioners to remain present on 09.04.2003, whereby the petitioner asked the Town Planning Officer to have zero deduction in the area of the petitioner's original plot. The record indicates that thereafter a notice dated 29.10.2004 was issued. The record indicates that thereafter a notice as contemplated under Section 26(9) came to be issued by the Town Planning Officer on 07.12.2005. The record further indicates that notice regarding final scheme was heard on 01.06.2009 which relates to the financial aspect. The record indicates that in between, petitioners filed objection dated 29.06.2008 before the Town Planning Officer. From the original record, it appears that the contentions which were raised before this Court in SCA No.2629/13 which is made the basis of the representation dated 20.03.2013 were not at all raised before the Town Planning Officer more particularly as regards the use of Page 12 of 26 HC-NIC Page 12 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER the open plot as now contended by the petitioners in the petition. On the contrary, it is found that in the communication dated 25.04.2003 before the Town Planning Officer, while contending that there should be zero deduction in the area of the scheme, the petitioners had asked the town planning officer to have zero deduction in such a manner that no loss is occurred to the petitioners and allot other final plot in the nearby vicinity.
17. It further deserves to be noted that in the petition the basis of variation as referred to by the petitioners is to Section 70 of the Act, which empowers the State Government, on an application by the appropriate authority to vary the scheme on the ground of error, irregularity or informality. In the facts and circumstances of this case, it cannot be said that there is any error, irregularity or informality in the sanctioned town planning scheme. At this juncture, it would be appropriate to note that there are part plan of the final plots alloted to the petitioner. It appears that no constructed property of the petitioner is affected as far as the final plot no.102 which is allocated for sale for commercial is carved out. Even if the boundary of final plot no.11 which is also allocated for sale for commercial is considered as per the sanctioned scheme, only the open space is earmarked and reconstituted as final plot Page 13 of 26 HC-NIC Page 13 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER no.11 which touches the constructed property of the petitioner. The purpose for which the allocation is made is one of the purpose as envisaged under Section 40 of the Act. Section 40(3) of the Act clearly provides that Town Planning Scheme may make provisions for the matters which are provided under the said sub section and the degree and extent of development depends on such provision in every town planning scheme. In light of the aforesaid therefore, it cannot be said that there is error, irregularity and informality in the scheme.
18. In the case of Mukundlal Trikamlal Patwa (supra), this Court considered the fact that the Town Planning Officer had come to the conclusion that the whole land was declared as surplus land under the ULC Act and on such basis, considered it to be Government land and on facts of such case, this Court was pleased to hold that it does appear that error is committed by the Town Planning Officer while preparing the scheme qua the ownership of the land in question as if the Government was the owner though the land was already allotted to one Sakina Abbas Karimi who in turn had given the land to the petitioner. In such factual background, this Court has come to the conclusion that there is an error in the scheme and therefore, the same deserves to be varied under Section 70 of the Act. In the case on hand, no such facts exist. With respect, it Page 14 of 26 HC-NIC Page 14 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER cannot be said that there is any error apparent on the face of the record. Following the ratio laid down by the Apex Court in the case of Babulal Badriprasad Varma reported in 2008(3) GLH 137, the contentions which are raised before this Court and in the representation are raised for the first time and considering the ratio laid down by the Division Bench of this Court in the case of Kartik Mohanbhai Patel (supra) it is no doubt true that the State Government has power to vary the scheme, however in the case on hand, the State Government as well as the Ahmedabad Municipal Corporation after hearing the petitioners have passed the impugned orders and in facts of the case, it cannot be said that both the authorities have committed any error in examining the representation filed by the petitioners pursuant to the order of this Court.
19. In the case of Babulal Badriprasad Varma (supra), the Apex Court has observed thus "32. It is not in dispute that:
(a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it.
(b) He did not file objections for re allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act.
In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his Page 15 of 26 HC-NIC Page 15 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER objections to the draft scheme and subsequently did not object/participate during the proceedings for reallotment.
33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same.
In Halsbury's Laws of England, Volume 16(2), 4th edition, para 907, it is stated:
"The expression `waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing Page 16 of 26 HC-NIC Page 16 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it"
As early as 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand[AIR 1957 SC 425] in the following terms:
"It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. As Sir Johan Romilly M. R. has observed in Vyvyan v. Vyvyan [(1861) 30 Beav. 65, 74; 54 E.R. 813, 817] "waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim".
In The Director of Inspection of Income Tax (Investigation), New Delhi and Another v. Pooran Mal & Sons and Another [(1975) 4 SCC 568] the issue was regarding waiver of benefits under a statute of limitation. It was stated:
"13. We may in this connection refer to the decision in Wilson v. McIntosh. In that case an applicant to bring lands under the Real Property Act filed his case in court under Section 21, more than three months after a caveat had been lodged, and thereafter obtained an order that the caveator should file her Page 17 of 26 HC-NIC Page 17 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER case, which she accordingly did. It was held that he had thereby waived his right to have the caveat set aside as lapsed under Section 23. The Privy Council held that the limitation of time contained in Section 23 was introduced for the benefit of the applicant, to enable him to obtain a speedy determination of his right to have the land brought under the provisions of the Act and that it was competent for the applicant to waive the limit of the three months, and that he did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case both, which steps assumed and proceeded on the assumption of the continued existence of the 27 caveat. They referred with approval to the decision in Phillips v. Martin where the Chief Justice said:
"Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after doubtless much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get Page 18 of 26 HC-NIC Page 18 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER rid of a waiver created by his own acts."
The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows:
"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." [emphasis supplied] Applying the above principles to the present case, it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved, he has waived the same."
20. At this juncture, it would be appropriate to refer to the judgment of this Court in the case of Shilpa Park Coop. Housing Society Ltd. v. Surad Development Authority reported in 1996(2) GLR 707, wherein in para 9, it has been observed thus "9. While dealing with the preliminary objection, it would be necessary to read Section 65 of the Act of 1976, thus:
On receipt of the preliminary scheme or, as Page 19 of 26 HC-NIC Page 19 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER the case may be, the final scheme, the State Government may
(a) in the case of a preliminary scheme, within a period of two months from the date of its receipt, and
(b) in the case of final scheme, within a period of three months from the date of receipt, by notification, sanction the preliminary scheme or the final scheme 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 infirmity, Subsection (2) provides that The scheme shall be kept open for inspection by the public, and Subsection (3) provides that On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as it were enacted in this Act.
The question raised before the Full Bench in Dungarlal's case (supra) was whether before finalisation of the Town Planning Scheme under the Bombay Town Planning Act, 1954, the Town Planning Officer was required to be issued special notice under Subrule (3) of Rule 21 of the Bombay Town Planning Rules, 1955 to the person who claims to be tenant of whole or some portion of the land. Before the Full Bench two questions were raised firstly, whether special notice to individual under Rule 21(3)(4) of the Act of 1976 of at least 3 days duration is mandatory; and secondly whether the finally sanctioned scheme, in view of the provisions of Section 65(3) is immune from challenge being a legislative Act. So far as the first Page 20 of 26 HC-NIC Page 20 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER question is concerned, a Division Bench of this Court in the case of Kaushikprasad Chandulal Mahadevia v. Ahmedabad Municipal Corporation reported in 1970 GLR 993, took the view the Rule 21 is a salutary rule intended to safeguard the property rights of citizens who are affected by making of the Town Planning Scheme. Again in the case of Mohanlal Jesinghbhai v. P.J. Patel reported in 1970 GLR 1035, the Court held that behind Rule 21 Clause (4) clearly is that all must have a opportunity of stating their views in making their representation before a decision is taken by the Town Planning Officer affecting them. The Court further held that a tenant of the land to be acquired is a person affected within the meaning of Clause (4) of Rule 21. Both the aforesaid decisions were referred in Dungarlal's case (supra) for reconsideration to the Full Bench. The Hull Bench, after examining the various provisions of the Bombay Town Planning Act, 1959 and the Rules, held that the two decisions referred in 1970 GLR at pages 993 and 1035 were wrongly decided only to the extent that a right to individual notice under Rules 21(3) and 21(4) is held to be so mandatory as to have a nullifying consequence. The Court held that Subrules (3) and (4) are merely additional procedural safeguards and not the essential minimum requirements. So far as the second question is concerned, the Full Bench held that the validity of legislative measure can be gone into even in writ jurisdiction only to the limited extent, i.e.
1. Whether there is any transgression of jurisdiction of authorities concerned,
2. Whether the scheme is finally emerged is totally inconsistent with the Act and,
3. Whether the minimum statutory essentials are not complied with and as such Page 21 of 26 HC-NIC Page 21 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER there is fundamental breach resulting into total lack of jurisdiction,
4. It was also held that the other procedural errors or defects that would render a scheme which has become legislative measure and part of the Act liable to attract or challenge in a Court on the ground that it is null and void.
This view endorsed by another Full Bench in the case of Saiyed Mohammed v. Ahmedabad Municipal Corporation and Ors. reported in 1977 GLR 549. The Supreme Court in Jaswantsingh's case (supra) has overruled the judgment of the Full Bench of this Court in Dungarlal's case (supra) only to the extent of first part of its judgment, i.e. with respect to noncompliance with the requirement of Subrules (3) & (4) of Rule
21. In Dungarlal's case, Kaushikprasad's case and in Mohanlal's case, the decisions rendered by the earlier two Division Benches were held to be wrongly decided. The Supreme Court reversed the said view and held that both the said judgments laid down the law correctly. It would be convenient to read para 15 of the judgment of the Supreme Court as reported in 1992 (Suppl.) (1) SCC 5 as under:
Accordingly, we are of the considered view that the judgment in Kaushikprasad Chandulal Mahadevia v. Ahmedabad Municipal Corporation and Mohanlal Jesinghbhai v. P.J. Patel, Town Development Officer, Ahmedabad Municipal Corporation, laid down the law correctly. The finding of the Full Bench in the first part of its judgment to the effect that noncompliance with the requirement of Subrules (3) and (4) of Rule 21 does not vitiate the scheme is not sound in law.
Thus, it is clear that the Supreme Court has Page 22 of 26 HC-NIC Page 22 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER reversed the judgment in Dungarlal's case only on the first question. Thus, the law laid down in Dungarlal's case on the second question is a good law being approved by the Apex Court."
21. The contention raised by the petitioner that the reservation is for the allocation for sale for commercial is to raise funds, in view of the provisions of Section 40(jj), deserves to be rejected outright. As per the said provision, as observed hereinabove, the State Government while preparing the Town Planning Scheme can provide for the matters which are provided under sub section (3) of Section 40 of the Act.
22. It also deserves to be noted that as observed hereinabove, as such, constructed property of the petitioner is not affected. As can be seen from the petition itself, it is contended by the petitioners that the constructed property of the petitioners should not be affected. Even at the cost of repetition it deserves to be noted that as per the part plan which is on record, none of the godowns or factories is affected and therefore, only because the petitioner no.1 is a State level federation, it cannot insist that there should be zero deduction. The Town Planning Officer after following due process of law has prepared and published the preliminary scheme which has been sanctioned by the State Government. Considering the orders impugned passed by the Corporation as well as the State Page 23 of 26 HC-NIC Page 23 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER Government, it cannot be said that the same are in any manner arbitrary, perverse or dehors the provisions of the Act.
23. Considering the fact that the purpose is for sale for commercial, it is provided that as and when the land in question which is forming Final Plot No.102 and 11, the petitioner can be given priority by the authorities in accordance with law and the petitioner is at liberty to match with the price which may be determined in accordance with law by the implementing authority. The Corporation as well as the State Government has considered all the aspects of variation and even if the provisions of Section 71 of the Act are considered, it cannot be said that the impugned orders/decision of the State Government are erroneous.
24. It also deserves to be noted that as provided under Section 65(3) of the Act, the Scheme when sanctioned becomes part of the Act and the petitioners have not been able to show any contingencies which would constitute error, irregularity or informality in the scheme and only because the petitioner no.1 is a State level federation, no different treatment can be given to the petitioner federation. The Town Planning Officer after following the procedure has taken the decision as per the principles of the Act.
As observed hereinabove, the constructed property Page 24 of 26 HC-NIC Page 24 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER of the petitioner federation is not at all affected and considering the geographical location of the Final Plots No.102 and 11, it is allocated for public purpose as enumerated under Section 40(3) of the Act. If the contention raised by the petitioners is examined, virtually, the petitioners desire that there should be no deduction in the area of the original plots and the original plots of the petitioner federation be reconstituted as a final plot. The authorities including the Town Planning Officer has considered all relevant aspects touching the principles of the Act and the scheme has been sanctioned by the State Government under Section 65(3) of the Act. In light of the aforesaid therefore, it cannot be said that there is any error, irregularity or informality in the scheme as sanctioned. It further deserves to be noted that in all town planning schemes, the necessities of public utility has also to be taken into consideration and therefore, when allocation/reservation is made in a town planning scheme for any of the purposes under the Act, it cannot be said that the same is provided for any financial gain to the appropriate authority. On the contrary, as per the provisions of the Act, such allocation not only ensures planned development which is found necessitated by the Town Planning Officer, but it also takes care of the cost of the scheme which is to be borne by the appropriate authority. In light of the Page 25 of 26 HC-NIC Page 25 of 26 Created On Wed Aug 16 05:04:52 IST 2017 C/SCA/11599/2013 ORDER aforesaid, the State Government as well as the Corporation have rightly provided in the impugned orders that the petitioners can follow procedure provided in Disposal of Land & Other Properties Regulation, 2002.
25. In light of the aforesaid therefore, no interference is called for exercise of jurisdiction by this Court under Article 226 of the Constitution and the decision taken by the State Government and the Corporation on the representation filed by the petitioners is legal and proper.
26. The petition is therefore liable to be dismissed and is hereby rejected in limine.
(R.M.CHHAYA, J.) bjoy Page 26 of 26 HC-NIC Page 26 of 26 Created On Wed Aug 16 05:04:52 IST 2017