Gujarat High Court
Dharmadev Infrastructure Pvt Ltd vs Dharmendrakumar Dahyabhai Patel on 23 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/285/2012 ORDER DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 285 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 2054 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2012
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2013
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2013
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2025
In R/LETTERS PATENT APPEAL NO. 285 of 2012
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DHARMADEV INFRASTRUCTURE PVT LTD
Versus
DHARMENDRAKUMAR DAHYABHAI PATEL & ORS.
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Appearance:
MR. MASOOM K. SHAH, MR DHRUVIN N DOSSANI(10528) for the Appellant(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 2
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1
MR. KAMAL TRIVEDI, AG WITH MR. VINAY B. VISHEN, AGP FOR RESPNONDENT
NOS. 3 AND 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 23/07/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) This intra-court appeal has been placed before us after remittal of the matter by the Apex Court vide judgment and order dated 14.11.2024 passed in SLP(C) Nos. 4450-4451 of 2014, which was directed against the order dated 10.04.2013 of dismissal of this appeal and the order dated 13.09.2013 of Page 1 of 7 Uploaded by C.M. JOSHI(HC01073) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:31:56 IST 2025 NEUTRAL CITATION C/LPA/285/2012 ORDER DATED: 23/07/2025 undefined rejection of the review application by appellate court.
2. The SLP was directed against the judgment and order dated 15.03.2011 passed by the learned single Judge, which was affirmed by the judgment and order dated 10.04.2013 passed in this appeal.
3. From a perusal of the order dated 14.11.2024 passed by the Apex Court, pertinent is to note that when the SLP came up for argument before the Apex Court, a statement was made by the learned Solicitor General appearing on behalf of the Ahmedabad Urban Development Authority (AUDA) that the learned single Judge while setting aside the development permission granted on 01.07.2009 had not taken note of the provisions of Section 49 of the Gujarat Town Planning and Urban Development Act, 1976, which was crucial to the controversy involved in the writ petition. Taking note of the said statement, the Apex Court while setting aside the order dated 10.04.2013 and 13.09.2013 of dismissal of the present appeal and of the review application, has remitted the matter back in the following manner :-
" Heard learned counsel and learned Solicitor General Page 2 of 7 Uploaded by C.M. JOSHI(HC01073) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:31:56 IST 2025 NEUTRAL CITATION C/LPA/285/2012 ORDER DATED: 23/07/2025 undefined appearing for the parties.
These matters are pending before this Court since the year 2014. The petitioner before this Court had challenged the orders passed by the Gujarat High Court dated 10.04.2013 & 13.09.2013 whereby confirming the order dated dated 15.03.2011 passed by the learned single Judge of the high Court. Today, when these matters were to be argued before this Court, Mr. Tushar Mehta, learned solicitor general appearing for the Ahmedabad Urban Development Authority-respondent No.2 has made a very fair submission that what has not been considered either by the learned Single Judge or the Division bench of the Gujarat High Court in Letters Patent Appeal is Section 49 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter called 'the Act') which is absolutely crucial in the matter and has in fact been relied upon in similar matters by other judgments. Under these circumstances, this Court may remand the matters back to the Gujarat High Court for consideration afresh in accordance with law, particularly after consideration of the aforesaid provision of the Act. Mr. Mohit D. Ram, learned counsel appearing for the petitioner also has no objection to this suggestion and has agreed to that.
Accordingly, we set aside the orders of the high Court dated 10.04.2013 & 13.09.2013 and remand the matters back to the high Court for fresh consideration as referred above in this order.
We also make it clear that the petitioner will also implead the State of Gujarat as party before the High Court and also other necessary parties.
Meanwhile, the interim order(s) granted in favour of the petitioner shall continue, till a fresh consideration is made in the case by the Gujarat High Court, as indicated above.
The present petitions are disposed of in the above terms.
Pending applications(s), if any shall also stand disposed of."
4. Having heard the learned counsels appearing for the parties, pertinent is to note that the writ petition namely Special Civil Application No. 2054 of 2010 was filed by the respondent No.1 herein namely the original owner of the plot namely Block No. 66/B (old Survey No. 76/3) admeasuring 24 Page 3 of 7 Uploaded by C.M. JOSHI(HC01073) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:31:56 IST 2025 NEUTRAL CITATION C/LPA/285/2012 ORDER DATED: 23/07/2025 undefined Gunthas i.e. 2428 sq.mtrs. of village Bopal, Taluka Daskroi. The challenge was to the development permission granted on 01.07.2009 by the AUDA in favour of the respondent No.2 before the writ court, namely the appellant herein. The main contention of the petitioner/respondent No.1 before the writ court was that the action of AUDA to issue development permission in anticipation of sanction of the draft T.P. Scheme by keeping open the right of the petitioner to challenge size, area, location of final plot, which is likely to be allotted under the TP Scheme, was wholly illegal. The contention of the petitioner was that till the final plot was allotted in the T.P. Scheme with the sanction of the preliminary T.P. Scheme by the State Government on the proposal of the Town Planning officer, no development permission could have been given in favour of the proposed allottee, namely the respondent No.2 before the writ court/appellant herein.
5. We may note that the draft T.P. Scheme was sanctioned on 07.01.2009 and there is no dispute about the fact that the final plot carved out in the Town Planning Scheme over which the development permission was granted on 01.07.2009, has finally been allotted in favour of the appellant herein, namely Page 4 of 7 Uploaded by C.M. JOSHI(HC01073) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:31:56 IST 2025 NEUTRAL CITATION C/LPA/285/2012 ORDER DATED: 23/07/2025 undefined the respondent No.2 before the writ court, in the preliminary T.P. Scheme sanctioned by the State Government on 10.06.2019.
6. As regards the order of the learned single Judge dated 15.03.2011 in setting aside the development permission granted on 1.7.2009, pertinent is to note that on a challenge to the decision of the Division Bench in dismissing this appeal before the Apex Court, an interim order dated 10.02.2014 has been passed in the following manner:-
"Delay condoned.
Issue notice.
In the meantime, the construction made by the petitioner shall not be demolished.
Mr. S.C.Patel, learned counsel, accepts notice on behalf of respondent No.1 and seeks time for filing counter affidavit. Let counter affidavit on behalf of the said respondent be filed within four weeks. Rejoinder affidavit, if any, may be filed within four weeks thereafter."
7. By another order dated 01.08.2024, the operation of the judgment of the Division Bench dated 10.04.2013, wherein the decision of the learned single Judge dated 15.03.2021 had merged, has also been stayed with the following order :-
"The operation of the impugned judgment is suspended. List the matter for hearing in the second week of December, 2024."
8. With the passage of time during the pendency of the Page 5 of 7 Uploaded by C.M. JOSHI(HC01073) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:31:56 IST 2025 NEUTRAL CITATION C/LPA/285/2012 ORDER DATED: 23/07/2025 undefined Special Leave Petition before the Apex Court, admittedly Preliminary T.P. Scheme has been sanctioned by the State Government, wherein the final plot proposed in favour of the appellant, over which the development work has been carried out with the grant of development permission dated 1.7.2009, has been allotted in favour of the appellant itself.
9. Taking note of the above facts, we are of the considered view that the issues raised in the writ petition, subject matter of consideration before us in the present appeal about the action of the AUDA in granting development permission after sanction of the draft T.P. Scheme, without allotment of final plot in the preliminary T.P. Scheme, has become academic. The issues pertaining to grant of development permission at the stage of Section 49 of the Act, 1976, in favour of the proposed allottee, are, therefore, not required to be looked into in view of the subsequent development in this matter.
10. With the above, while setting aside the judgment and order dated 15.03.2011 passed by the learned single Judge on the limited observations made hereinabove, the present appeal stands allowed.
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NEUTRAL CITATION C/LPA/285/2012 ORDER DATED: 23/07/2025 undefined
11. We may clarify that the limited issue, subject matter of consideration before this Court, was about the grant of development permission by AUDA before sanction of the preliminary T.P. scheme. All questions of law pertaining to the interpretation or application of Section 49 of the Act, 1976 in such a scenario, are left open to be agitated in an appropriate case.
12. It is further clarified that this Court has not entered into the merits of the case and the judgment passed by the learned single Judge in view of the subsequent developments, and the peculiar facts and circumstances of the case noted hereinabove.
13. All the pending Civil Applications/Misc. Civil Application stand disposed of, accordingly.
(SUNITA AGARWAL, CJ ) (D.N.RAY,J) C.M. JOSHI Page 7 of 7 Uploaded by C.M. JOSHI(HC01073) on Mon Jul 28 2025 Downloaded on : Mon Jul 28 21:31:56 IST 2025