Gujarat High Court
Varahi Co Operative Housing Society Ltd vs State Of Gujarat on 18 September, 2018
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1202/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1202 of 2018
In SPECIAL CIVIL APPLICATION NO. 3358 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
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VARAHI CO OPERATIVE HOUSING SOCIETY LTD
Versus
STATE OF GUJARAT
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Appearance:
MR BB NAIK, SENIOR ADVOCATE WITH MR UMANG R VYAS(5595)
for the PETITIONER(s) No. 1
MR DM DEVNANI, AGP for the RESPONDENT(s) No. 1
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 18/09/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal, which is filed under Clause 15 of Letters Patent, is directed against the judgment dated 23.08.2018 passed by the learned Single Judge in Special Civil Application No.3358 of 2018, by which, the learned Single Judge has dismissed the petition.
2. Brief facts leading to filing of the present appeal are as under:
2.1. Petitioner society is a registered Cooperative Housing Society under the provisions of the Gujarat Cooperative Societies Act. It was Page 1 of 11 C/LPA/1202/2018 ORDER registered on 11.05.1967 before the District Registrar, Bhavnagar. The petitioner society had purchased non-agriculture land situated at Revenue Survey No.76 of village: Tarsamiya, Taluka: Bhavnagar by a registered sale deed in the year 1971. Initially there were 56 residential plots on the said land. Lay-out plans etc. were sanctioned by the respondent authorities. As per the said plan, the petitioner society kept common plot as per the rules and regulations prevailing at the relevant time. The said plots were sold to its members by executing different sale deeds. Thereafter the petitioner society has proposed to allot two more plots i.e. plot Nos. 57 and 58 and therefore necessary sanction was obtained from the concerned authority. Plot Nos. 57 and 58 are divided in 8 sub-plots and such sub-plotting was also sanctioned by the concerned authority. Said 8 plots were also sold to 8 different owners who have thereafter constructed residential houses.
2.2. It is the case of the petitioner that there is one common plot situated in the middle of the society which is adjacent to original plot Nos. 12 and 25 and the same is being used for social and other functions by the members of the society. The society is also having excess land in different parts of the society.Page 2 of 11 C/LPA/1202/2018 ORDER
2.3. It is further stated that respondent no.1 was of the intention to prepare Town Planning Scheme No.12 and therefore the said scheme was sanctioned by Notification dated 10.08.1998. It is alleged that though the petitioner was affected by the said Town Planning Scheme, hearing was not given to the society before sanctioning the Town Planning Scheme. It is stated that the Government has sanctioned the Town Planning Scheme on 04.03.2014 by which Ring Road having width of 45 meters was sanctioned on 8 plots of original plot Nos. 57 and 58. As per the said scheme, out of said 8 plot holders, 4 members have been allotted land on common plot of the society, whereas other four members have been allotted land on the internal road of the society. It is, therefore, alleged that the action of the respondent authority in allotting the land to 4 members on the common plot of the society is illegal and therefore the petitioner filed the captioned petition in which the petitioner had prayed for the following reliefs:
"(a) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India may kindly be issued quashing and setting aside the notification dated 04.03.2014 issued by respondent authorities (Annexure-E to the petition) as the same being illegal, arbitrary and irrational, Page 3 of 11 C/LPA/1202/2018 ORDER being violative of Articles 14 and 19 of the Constitution of India so far as it provides for reducing the area of common plot of petitioner society and demolition of eight houses of members of society wherein the members are residing with their family members since more than two decades.
(b) A writ of mandamus or a writ in the
nature of mandamus or any other
appropriate writ, order or direction under
Article 226 of the Constitution of India
may kindly be issued restraining the
respondents from allotting society's
common plot to private respondents.
(c) to issue appropriate writ, order or direction to respondent no.1 and 2 to consider the opinion of respondent no.3 Town planning Officer dated 04.08.2010 and to accept the suggestion of respondent no.3 and to vary or modify the Town Planning Scheme No.12 of Bhavnagar accordingly;
(d) Pending admission, hearing and final disposal of this petition, an interim direction may kindly be granted restraining the respondents from taking any steps to take the possession of society's common plot;
(e) Pass such other and further orders as may deem fit in the interest of justice."
2.4. The learned Single Judge, by the impugned order, dismissed the petition and therefore the present appeal is filed.
Page 4 of 11 C/LPA/1202/2018 ORDER3. Heard learned Senior Counsel Mr. B.B. Naik assisted by learned Advocate Mr. Umang R. Vyas for the appellant - petitioner, learned Assistant Government Pleader Mr. D.M. Devnani for respondent No.1 and learned advocate Mr. H.S. Munshaw for respondent Nos. 2 and 3.
4. Learned Senior Counsel Mr. Naik mainly contended that before sanctioning the Town Planning Scheme, reasonable opportunity of being heard was not given to the petitioner society. Learned counsel would further submit that the respondent authorities could not have allotted the final plots to 8 members of the petitioner society in common plot and on the internal roads of the society. In fact the common plot is used by the other members of the society for social and other functions. The said common plot is kept by the society as per the rules and regulations prevailing at the relevant time. Relying upon the map produced at page 19 of the compilation, it is contended that the respondent authority has kept certain portion of the land near to the petitioner society for sale for residential purpose. The 4 members who are given the plots in the common plot can be accommodated in the land which is kept for sale for the purpose of residence. It is contended that the learned Single Judge has not properly considered the Page 5 of 11 C/LPA/1202/2018 ORDER aforesaid important aspect of the matter and therefore the impugned order passed by the learned Single Judge be set aside.
5. On the other hand, learned advocate Mr. Munshaw appearing for the respondent authority contended that the preliminary scheme and final scheme having been sanctioned by the State Government, the same have the effect as if it were enacted in the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Act' for short), in view of the provisions contained in Section 65(3) of the said Act. Thus, it is contended that the petition itself is misconceived and no relief can be granted to the petitioner and therefore the learned Single Judge has not committed any error while dismissing the petition.
6. It is further submitted by learned advocate Mr. Munshaw that the affected persons including the members of the petitioner society were given reasonable opportunity of hearing at the appropriate stage. The procedure prescribed under the Act has been followed and thereafter the Government has sanctioned the Town Planning Scheme No.12.
7. After taking necessary instruction from the Page 6 of 11 C/LPA/1202/2018 ORDER concerned officer of the respondent Corporation, learned advocate Mr. Munshaw has submitted that out of 8 members who are affected by the Town Planning Scheme, three members are accommodated in common plot, whereas 5 other members were given plots on the internal road of the society. Learned advocate Mr. Munshaw has placed on record the plan/sketch during the course of hearing which was taken on record.
8. At this stage, it is also pointed out that the entire Ring Road has already been constructed except the disputed plots of the petitioner society and therefore the learned Single Judge has rightly dismissed the petition filed by the appellant - petitioner. He, therefore, urged that this appeal be dismissed.
9. Learned AGP also supported the submissions canvassed by learned advocate Mr. Munshaw and submitted that this appeal be dismissed.
10. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it has emerged from the record that the petitioner society is registered in the year 1967 and initially the society purchased non-agriculture land bearing Survey No.76 situated at village: Tarsamiya, Page 7 of 11 C/LPA/1202/2018 ORDER Taluka: Bhavnagar by a registered sale deed in the year 1971. Initially, there were 56 residential plots on the said land and thereafter petitioner society purchased 2 more plots and divided the same into 8 sub-plots with the permission of the concerned authority. The said 8 plots were also sold to different persons. The society is having common plot situated in the middle of the society. Thereafter, the respondent No.1 sanctioned Draft Town Planning Scheme No.12 in the year 1998 under the provisions of the Act. From the record it appears that the members of the society were given opportunity of hearing before sanctioning the Draft Scheme and even thereafter the respondent authority has followed the procedure prescribed under the Act. The respondent No.2 has specifically stated in the reply that all the affected persons including the petitioner society were given an opportunity to raise objection and after considering the objection and suggestion the Draft Scheme was sanctioned by the Government. Thus, the contention of learned counsel appearing for the appellant - petitioner that opportunity of hearing was not given to the members of the society is not correct.
11. From the record and map/sketch produced by learned advocate Mr. Munshaw, it is further Page 8 of 11 C/LPA/1202/2018 ORDER revealed that 45 meters wide Ring Road is to be constructed from 8 plots of the members of the petitioner society. Such affected persons were accommodated in the petitioner society itself by giving them alternate accommodation in the common plot as well as internal road of the society. The petitioner society has no grievance with regard to allotment of plots to 5 members on the internal road of the society. However, the main grievance is with regard to allotment of plots to three members in the common plot on the ground that common plot is being used by the other members of the petitioner society for social and other functions.
12. With regard to the said grievance, it is required to be noted that the Town Planning Scheme was finalized and necessary notification was issued on 04.03.2014. However, the captioned petition was filed in February, 2018 i.e. after a period of almost 4 years of issuance of the notification. In the meantime, as pointed out by learned advocate Mr. Munshaw, entire Ring Road having width of 45 meters and length of 50 kms. has been constructed except the disputed plots of the petitioner society. It is not in dispute that the Final Town Planning Scheme No.12 has been sanctioned by the State Government on 02.01.2017 and at that stage, petition came to be filed.
Page 9 of 11 C/LPA/1202/2018 ORDER13. Learned Single Judge has considered the provisions contained in Sections 65 to 70 of the Act and thereafter rightly observed that as the preliminary scheme and final scheme having come into force, the same shall have effect as if it were enacted under the Act and all lands required by the appropriate authority would vest absolutely in the appropriate authority free from all encumbrances. Thus, the scheme becomes a part of the Act and the validity of the same can be challenged on limited grounds. Learned Single Judge has also rightly placed reliance upon the decision rendered by this Court in the case of Shilpa Park Co-operative Society Ltd. v. Surat Urban Development Authority and Ors, reported in (1996) 2 GLH 287.
14. With regard to contention raised by learned counsel for the appellant relying upon the map produced at page 19 of the compilation, that there is an open space in the Town Planning Scheme which is kept for residential purpose and three members to whom the plots have been allotted in the common plot of the appellant - petitioner society can be accommodated in the said open space is concerned, the said contention is also misconceived because the said place is kept for sale for residence under the Town Planning Scheme and once the Scheme is finalized Page 10 of 11 C/LPA/1202/2018 ORDER and sanctioned by the State Government, it is not permissible to change the location. The variation of the Scheme can be done only by the State Government as per the provisions contained in Section 70 of the Act.
15. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are not inclined to interfere with the impugned order passed by the learned Single Judge. Accordingly, appeal is dismissed. Consequently, civil application also stands disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) Jani Page 11 of 11