Manubhai Raichandbhai Shah vs Nadiad Municipal Corporation
2021 Latest Caselaw 4106 Guj

C/LPA/1314/2016                                                         JUDGMENT DT. 12.3.21
          MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)


             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/LETTERS PATENT APPEAL NO. 1314 of 2016
                                      In
                  R/SPECIAL CIVIL APPLICATION NO. 9370 of 2001


FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV

==================================================================

1     Whether Reporters of Local Papers may be allowed to                         Yes
      see the judgment ?

2     To be referred to the Reporter or not ?                                     Yes

3     Whether their Lordships wish to see the fair copy of the                    Yes
      judgment ?

4     Whether this case involves a substantial question of law                    Yes
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

==================================================================
                       MANUBHAI RAICHANDBHAI SHAH
                                  Versus
                  NADIAD MUNICIPAL CORPORATION & 4 other(s)
==================================================================
Appearance:
MR JF MEHTA(461) for the Appellant(s) No. 1
MR SOAHAM JOSHI, Assistant Government Pleader for Respondent No.3,4
MR MEHULSHARAD SHAH(773) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 5
==========================================================

    CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
                                  and
             HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                  Date : 12/03/2021
                                  ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

1. Present Intra Court Appeal is directed against the order

dated 21.9.2016 of the learned Single Judge dismissing Special

Civil Application No.9370 of 2001 - Manubhai Raichandbhai

Shah vs. Nadiad Municipal Corporation and others. The

grievance of the Petitioner / Appellant is that the Town Planning

Scheme finalised by the Respondent State Government on

19.5.1999 has not been varied as per the provisions of the Gujarat

Town Planning and Urban Development Act, 1976 (the Act) even

though the Appellant had not only applied for the same but

objected to the Draft Preliminary Scheme and therefore, the

construction as raised of three Bungalows by the Appellant, who

appear to be belonging to the same family, deserved to be

protected and one of their vacant lands marked as Plot No.185/3

as per the Map produced by the Appellant cannot be given away

for public purpose by Respondent Nadiad Municipal Corporation

to another person one Jitendrabhai whose plot in the adjacent

area over Plot No.318 (Shopping Centre) was being taken over for

the public purpose by Nadiad Municipal Corporation in the

Town Planning Scheme as finalised by the State.

2. The case seems to have little chequered history in the sense

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

that on the land in question in Nadiad, the Appellants appear to

have raised construction of three Bungalows even without the

Plans duly approved by the Respondent Nadiad Municipal

Corporation, even though the case set up by the Appellant is that

they had applied with the Plans to the Respondent Corporation

but they did not approve the same in time and though they gave

some instructions to the Appellants for modifying their Plan,

which the Appellant did, under the provisions of the Act for

deemed approval of the maps, they proceeded to construct their

three Bungalows on the said land in question leaving portion

marked as Plot No.185/3 as vacant.

3. The dispute from the side of the Respondent Nadiad

Municipal Corporation and State appears to be two fold viz. (i)

public road in one of the Bungalows of the Appellants is required

to be widened to the width of 6 mtrs. instead of present 3 mtrs.

and according to the Respondent, the Appellants have

encroached and constructed their boundary wall and the size of

the final plot allotted to them under the Town Planning Scheme

notified in 1995 there was only 3 mtrs. of road in front of their

three Bungalows; and (ii) Unless, the common plot No.185/3 is

handed over by the Appellants in terms of the Final Town

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

Planning Scheme, the said Plot No.185/3 cannot be allotted to the

third party Jitendrabhai, whose plot adjacent to Shopping Centre

(Plot No.318) is taken from said Jitendrabhai and thus, the

development of the said area to this extent is stuck in this

litigation.

4. Mr. Mehul Sharad Shah, learned counsel for the

Respondent Nadiad Municipal Corporation pointed out that the

Respondent Corporation had to file a civil suit against the present

Appellants in 1985 viz. Civil Suit No.117 of 1985 - Nadiad

Municipal Corporation vs. Manubhai Raichand Shah which

was decreed in its favour and even First Appeal filed by the

present Appellants was dismissed by the First Appellate Court,

against which a Second Appeal filed by Appellants being Second

Appeal No.214 of 2013 is pending in this Court. Mr.Mehul Sharad

Shah, learned counsel also pointed out that not only the

Appellant raised the construction encroaching the land which

vested in the State Government as per the provisions of the Act

but taking shelter of the present litigation, the Town Planning

Scheme notified by the State, which becomes part of the

enactment itself, has been stalled by the Appellants. He

submitted that objections with regard to the non­compliance

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

with the Article 243ZD etc. of the Constitution of India are not

even applicable to the facts of the present case as the Town

Planning Scheme in question has been notified by the State

Government after the following due procedure prescribed under

the Act and therefore, the said objection of the Appellant cannot

be now pressed into service. He drew attention to the Court

towards two Affidavits filed by the Town Planning Authority

before the learned Single Judge of this Court in this regard.

5. Mr. Soaham Joshi, learned Assistant Government Pleader

supported the contentions raised by learned counsel for the

Nadiad Municipal Corporation.

6. We have heard learned counsel at length and perused the

record including map and site photographs produced by the

Appellant himself and the provisions of the Act also.

7. The Town Planning Act of 1976 contains the various

provisions relating to the framing of the Schemes for town

development and the procedure to be adopted for the said

purposes is given in Sections 40 to 76 in Chapter 5 of the said

enactment. The relevant provisions for the controversy in hand

are Section 48A which the vesting of the land in appropriate

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

authority where the Draft Scheme has been notified by the State

Government under Section 48(2) of the Act and Section 49 of the

Act provides for restriction on use and development of the land

after declaration of a scheme and on or after the date on which a

Draft Scheme is published under Section 41 of the Act, no person

shall within the area included in the Scheme carry out any

development. Sub­section (2) of Section 49 further provides that

no person shall be entitled to any compensation in respect of any

damage, loss or injury resulting from any action taken by the

appropriate authority under Section 70(1) of the Act. Section 52

discusses the provisions relating to Preliminary and Final Scheme

and Section 65 of the Act provides that the Preliminary Scheme or

Final Scheme shall have the effect as it were enacted in this Act.

Section 66 of the Act provides for withdrawal of the scheme by

the State Government where it is considered necessary or

expedient to do so. Section 67(a) of the Act again provides that all

the lands required by Appropriate Authority shall unless it is

otherwise determined by any such Scheme vests absolutely in the

appropriate authority free from all encumbrances. Section 68

provides for power of Appropriate Authority to summarily evict

any person in occupation. Section 70 makes a provision for

varying the scheme only on the ground of error, irregularity or

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

informality upon which the Appropriate Authority may apply in

writing to the State Government for the variation of the scheme.

8. Upon a harmonious reading of the aforesaid provisions of

the Chapter 5 in conspectus thereof indicates the binding

character of the Scheme, which takes care of the objections of the

persons concerned at the initial stages, when the Draft Schemes

are notified by the State Government. The argument raised by the

Appellant that the Respondent Municipal Corporation in its

initial stages viz. vide Minutes dated 26.9.1989 had decided to

make variation in Town Planning Scheme No.3 and Final Plot

No.186/2 belonging to the Appellant was included in the varied

scheme on compassionate ground was not finally so given effect

to by the State Government in the Preliminary Scheme or even

Final Scheme and the objections raised by the Appellant were not

considered. Learned counsel for the Appellant Mr. J.F. Mehta

also emphasised that three Bungalows constructed by the

Appellants were on the dead end of the Road and therefore, the

Road in question in front of their houses or Bungalows could not

be said to be public road and therefore, the widening of the same

from 3 mtrs. width to 6 mtrs. width was not at all necessary as

there was no ingress or outgress of any public members on that

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

Road except the family members of the Appellant only. He also

submitted that no public purpose was served or could be served

by the Appellants including part of their original Plot No.186/2

and later on marked as Plot No.185/3 as common plot as the

same was only to be allotted or intended to be allotted to a third

party Jitendrabhai and therefore, the Final Scheme notified on

19.5.1999 deserved to be varied allowing the construction of the

Appellants' Bungalows to stand as it is.

9. Mr. J.F. Mehta, learned counsel for the Appellants also

contended that no notice under Section 52 was served upon the

Appellant. This was factually controverted by the learned

Assistant Government Pleader by pointing out the Affidavit of

Mr.R.S. Gandhi, Senior Town Planner filed in this Court in 2002 in

which the said Senior Town Planner has stated as under:

"As per the provision of the Act Petitioner had been invited to submit their representation, objection, suggestion on the proposals of Draft T.P. Scheme, Tentative Reconstitution, preliminary T.P. Scheme final T.P.S. Petitioner's were served individual notices Dated 1.10.1983, 2.5.1984, 9.9.95, 15.4.1988 & 20.2.1989. The xerox copies are enclosed herewith under the provision of section 52 of the Act & Rule 26 of the Rules, Petitioner was given ample opportunity

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

to submit their representation before Town Planning Officer. Nadiad are Dev. Authority i.e. Nadiad Municipality planning Committee resolved vide its Resolution No.63 dated 26.12.1989 to consider the issue by preparing the varied Town Planning Scheme No.3."

Copy of these notices were also annexed with this Affidavit.

Therefore, there is no merit in the said contention of the

Appellants.

10. These contentions were vehemently opposed by learned

counsel for the Respondents and they submitted that not only the

Public Road in question deserved to be widened to 6 mtrs. as per

the Final Scheme but it could not be claimed by the Appellants

that the members of public road had no right of way or ingress or

outgress on the said public road which they had partly

encroached to leave only 3 mtrs. width of the road. They also

refuted the right of the Appellants to retain common plot

No.185/3 admeasuring 454 sq.mtrs. as unless the same is allotted

to Jitendrabhai whose land over the Plot No.318 (Shopping

Centre) developed by Nadiad Municipal Corporation is vacated,

the public purpose would not be served. They further contended

that Final Scheme notified by the State on 9.5.1999 cannot be

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

varied or altered to suit the personal conveniences of the land

holders, especially those like the present Appellants who had

encroached the part of the public land and had even constructed

their Bungalows without proper approval of the Plans by the

Competent Authority, so much so that even Nadiad Municipal

Corporation had to file a suit for declaration and injunction

against these Appellants in 1985 to prevent any construction on

the said plot of land without the approval of the maps by the

concerned authority and having lost in two round of litigations in

that civil suit, the Appellant is now in the aforesaid Second

Appeal before this Court and have also raised the construction in

question.

11. We had heard this matter on 9.3.2021 and Mr. Dhaval Dave,

learned Senior Counsel appeared with Mr. J.F. Mehta, learned

counsel for the Appellant and we had passed the following order

on 9.3.2021 and then kept the matter for today:

"1. We have heard both the learned counsel and perused the Map and the latest Affidavit of the Petitioner­Appellant Mr.Manubhai Raichandbhai Shah dated 18.02.2021 and perused the site photographs also. We are prima facie of the opinion that had the matter been settled in terms of the Court

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

Order dated 30.09.2019 amicably, in which, the Court gave a very reasonable suggestion to both the sides, the things would have settled by now but it seems that the Petitioner­Appellant has given a Representation in pursuance to the said Order dated 30.09.2019 not in tune with the Town Planning Scheme notified and were not willing to hand over the vacant possession of the plot No.185/3 (Common Plot) to the Nadiad Municipal Corporation, which was intended to be allotted to one Jitendrabhai whose present site a smaller strip type plot as shown in map behind the Shopping Centre on Plot No.318 shown in the Map could have been utilised for other public purposes.

2. The Town Planning Scheme also envisages the widening of the Road from the present 3 meters width to 6 meters width in front of the three bungalows constructed by the Petitioner­Appellants and which also, in our opinion, is a genuine requirement of the Town Planning Scheme notified by the State. The variation in the scheme therefore at the instance of the present Petitioner­Appellant does not seem to be possible or desirable.

3. There is one Second Appeal filed by the present Petitioner­Appellant also, which is pending before the learned Single Judge being Second Appeal No.214 of 2013 which was also noticed by the Coordinate Bench in the order dated 30.09.2019.

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

4. Mr.Dhaval Dave, learned Senior Counsel appearing for the Petitioner­Appellant prays for short accommodation to take instructions from the Petitioner­Appellant whether his client would immediately hand over the vacant possession of the Plot No.185/3 to the Respondent Corporation or not and also permit the Respondent to widen the Road upto 6 meters width as envisaged in the Town Planning Scheme or not, failing which the Court may be constrained to pass adverse orders against the Petitioner­Appellant including the demolition of the property of the Petitioner­Appellant which is said to be constructed without any plans approved, to the extent required by the Municipal Corporation.

5. Time prayed for is allowed. Put up on 12.3.2021 on top of the list."

12. Today, Mr.Dhaval Dave, learned Senior Counsel has not

appeared in the matter and Mr. J.F. Mehta, learned counsel has

argued on behalf of the Appellants and had submitted before us

initially that the Appellants are not agreeable to the aforesaid

suggestion in the said order dated 9.3.2021, therefore, he may be

allowed to address the Court on the merits of the case, which the

Court permitted and he made submissions on behalf of the

Appellant.

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

13. Having heard learned counsel for the parties, we are

satisfied that there is no merit in the present Appeal and the same

deserves to be dismissed. The Appellant does not seem to have

come to the Court with bona fides or with clean hands and have

sought to merely take advantage of the length of litigation or the

period of time spent in the litigation right from day one. The

framing of the Town Planning Scheme under provisions of the

Act is prerogative as well as the obligation of the State

Government for the purpose and the sound and proper

development of the town and the Nadiad Municipal Corporation

hardly has any determinative role in the process except to

implement the Final Scheme as notified by the State

Government. In this view of the matter, the initial Resolution

relied upon by the Appellants of 26.12.1989 that the Town

Municipality agreed with them to vary the Scheme in respect of

Plot No.186/2 is of little consequence.

14. The Appellants cannot insist upon varying the Preliminary

Scheme as well as Final Scheme under the Act on the basis of

such Resolution of Municipality at all. The Appellants also seem

to have constructed these three Bungalows or Houses of the land

of the original Plot No.186/2 without any approval of Plan of the

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

Municipal Corporation or by the Town Planning Authority. The

said construction appears to be undertaken way back in 1984­85

even before Application was made for the purpose of such

approval and that is why the Municipal Corporation had to file a

civil suit in the Trial Court viz. Civil Suit No.117 of 1985 which

was decreed in favour of the Municipality. Even the First Appeal

filed by the Appellant failed and Second Appeal is said to be filed

by the Appellant viz. Second Appeal No.264 of 2013 which is now

pending before the learned Single Judge of this Court.

15. Be that as it may, we do not find any merit in the objections

raised by the Appellants. The legal contention raised about

applicability of Article 243ZD etc. has no application to the facts

of the present case as the same applies only if the Scheme in

question is framed by the concerned Municipality. The said

Provisions in the Constitution of India in Chapter 9A only deal

with the Municipalities and has no application to the Town

Planning Schemes notified under provisions of the 1976 Act.

There is no dispute or at least a valid challenge before us about

the procedure followed under provisions of the Act.

16. Apparently, the Appellant seems to have constructed their

three houses with impunity in the teeth of litigation initiated by

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

Nadiad Municipal Corporation and even without obtaining prior

approval of their construction plan. Much after that, putting a

bold face that road in front of their Houses is not required to be

widened 6 mtrs. as notified in the Final Scheme or that Common

Plot No.185/3 to be deducted from their original Plot No.186/2

under the Final Scheme cannot be given away to other person,

i.e. Jitendrabhai, are absolutely unsustainable contentions. It is

not at all for the Appellants to contend that since the Road in

question is not a thorough fare or a public road as such and

therefore, 3 mtrs. width of the road in front of their houses is

enough, cannot be a ground to vary the Final Scheme as

envisaged under Section 70 of the Act, for which the Appellant

has no role to play and it is only for the Appropriate Authority viz.

Municipal Corporation who can do so if it is satisfied that there is

an error, irregularity or informality in the Preliminary or Final

Scheme as notified by the State Government. None of such error,

irregularity or informality has been established, much less to be

recommended by Nadiad Municipal Corporation of the State

Government for such variation in the Final Scheme already

notified which became part of the Act itself and thus an Act of

State Legislation. On the other hand, the said Nadiad Municipal

Corporation is in litigation on the other hand with the present

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

Appellant.

17. Therefore, we are constrained to observe that the present

Appellants have no equity, much less legal foundation to ask for

any variation in the Final Scheme notified by the State

Government under the Act. On the contrary, the facts brought on

record before us clearly show their reticent attitude and non­

compliance with the provisions of law and the Final Scheme

notified by the State Government to the hilt, without any

justification. Therefore, we do not find any ground to interfere

with the order passed by the learned Single Judge dismissing the

writ petition filed by the Appellant and we dismiss the same

without any order as to costs.

18. We direct the Respondents - Nadiad Municipal Corporation

and the State Authorities to ensure the full compliance with the

Final Scheme notified by the State Government within a period of

Eight Weeks from today and by completing process of taking

Possession of Common Plot already vested with State namely,

Plot No.185/3, allotment to Jitendrabhai, widening of Public Road

to 6 mtrs. width and report the same by way of an Affidavit of the

concerned authority from the side of the Respondents. The said

Compliance Report may be placed in Chambers for perusal.

C/LPA/1314/2016 JUDGMENT DT. 12.3.21 MANUBHAI RAICHANDBHAI SHAH v. NADIAD MUNICIPAL CORPORATION & 4 other(s)

19. With the aforesaid observations, the present Letters Patent

Appeal is dismissed. No costs.

(DR. VINEET KOTHARI,J)

(BIREN VAISHNAV, J) Bharat