Gopalbhai Bhagabhai Ichhabhai vs State Of Gujarat
2021 Latest Caselaw 15294 Guj

     C/SCA/14506/2021                             ORDER DATED: 29/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14506 of 2021

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                 GOPALBHAI BHAGABHAI ICHHABHAI
                                   Versus
                           STATE OF GUJARAT
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Appearance:
MR KK TRIVEDI(934) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,4,5,6,7
MS NISHA THAKORE ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 29/09/2021

ORAL ORDER

1. By way of this petition, under Articles 226 and 300-A of the Constitution of India read with Articles 14 and 21, the petitioners have prayed for the following reliefs :-

"8(A) Your Lordships may be pleased to admit this petition;

(B) Your Lordships may be pleased to pass appropriate writ, of mandamus or a writ in the nature of mandamus or any other writ, order or direction thereby directing the respondent nos. 1 to 4 to consider to make variations in the preliminary Town Planning Scheme No. 47 (Bhestan) under the provisions of Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 qua the land bearing Revenue Survey No. 3 of the petitioners and the lands bearing Revenue Survey Nos. 9, 10, 12 and 13 of the respondent no. 5 of Village : Bhestan, Taluka : Choryasi (City) District : Surat, which are renumbered as O.P. Nos. 5/A and 5/B + 6 respectively and reconstituted as Final Plot no. 10 and Final Plot No. 4 under the preliminary T.P. Scheme No. 47 (Bhestan) for allotment of the separate Final Plot/s to the petitioners and the respondent no. 5 in the interest of justice.

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(C ) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant interim relief/ ad-interim/ ex-parte relief directing the respondent nos. 1 to 4 to consider to make variations in the Preliminary Town Planning Scheme No. 47 (Bhestan) under the provisions of Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 qua the land bearing Revenue Survey No. 3 of the petitioners and the land bearing Revenue Survey Nos. 9, 10, 11, 12 and 13 of the respondent no. 5 Village : Bhestan, Taluka ; Choryasi (City) District : Surat which are renumbered as O.P. Nos. 5/A, and 5/b + 6 respectively and reconstituted as Final Plot No. 10 and Final Plot No. 4 under the preliminary T.P. Scheme No. 47 (Bhestan) for allotment of the separate Final Plot/s to the petitioners and the respondent no. 5 in the interest of justice.

(D) Your Lordships be pleased to pass any such other and/or further order/s, though just and proper, in the interest of justice."

2. The case of the petitioners is that the petitioners and respondent nos. 6 and 7 are the joint owners of the land bearing Revenue Survey Nos. 3, Village Bhestan, Taluka Choryasi (City) District, Surat, admeasuring 1012 sq.mtrs. It is the case of the petitioners that they came under the holding of this land by virtue of ancestral tenancy rights and proceedings under the provisions of Gujarat Tenancy and Agricultural Lands Act, 1948. According to the petitioners, respondent no. 5, is a giant textile industrial company, who is the owner of the lands bearing Revenue Survey Nos. 2, 4, 5, 6, 9, 10, 12 and 13 of Village : Bhestan, Taluka : Choryasi (City), District : Surat totalling around 69,403 sq.mtrs. On 16.10.1999, the Surat Municipal Corporation declared its intention of making Draft Town Planning Scheme No. 47 (Bhestan) under Section 41 of the Gujarat Town Planning and Urban Development Act, 1976. After inviting objections and/or suggestions, the Surat Municipal Corporation submitted draft T. P. Scheme No. 47 (Bhestan) to the State Government for sanction under Section 48(2) of the Gujarat Town Planning and Urban Development Act. The State Government sanctioned the above T.P.

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Scheme No. 47 (Bhestan) vide Notification dated 29.08.2003.

2.1. It is further the case of the petitioners that the petitioners do not have any objections against the proposal under the draft Town Planning Scheme. Under the draft T.P. Scheme No. 47 (Bhestan), the land bearing Revenue Survey No. 3 of Village : Bhestan, Taluka : Choryasi (City), District : Surat of the petitioners is renumbered as Original Plot No. 6, area admeasuring 1,012 sq.mtrs., which is reconstituted as Final Plot No. 6 - area admeasuring 706 sq. mtrs., whereas lands of respondent no. 5 bearing Revenue Survey numbers as stated above, is totalling around 69,403 sq.mtrs., is renumbered as O.P. No. 5/A, area admeasures 33,517 sq.mtrs., and O.P. No. 5/B area admeasures 33,232 sq.mtrs., which are also reconstituted as Final Plot No. 5/A, admeasuring 17,117 sq.mts., , and Final Plot No. 5/B admeasures 30,951 sq.mtrs. Under the sanctioned T.P. Scheme, the petitioners and respondent no. 5 were given separate Final Plots. It is further the case of the petitioners that when the Town Planning Officer issued notice on 19.01.2005 and 19.10.2006 for inviting objections and suggestions against the proposal under the T.P. Scheme, the Town Planning Officer had never informed that he is not going to allot joint Original Plots and joint Final Plots to the petitioners as well as respondent no. 5. The lands of the petitioners are amalgamated and merged with the lands of the respondent no. 5 under the preliminary Town Planning Scheme prepared by Town Planning Officer. The State Government sanctioned the said preliminary Town Planning Scheme under Section 65 of the Gujarat Town Planning and Urban Development Act vide Notification dated 12.04.2013. By claiming to be unaware of the said fact, having no knowledge about such allotment of joint holding with respondent no. 5, the petitioners raised grievance in this petition that they are facing difficulties in enjoying their rights over the land bearing

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Revenue Survey No. 3 paiki. The petition is presented on the premise that the final Town Planning Scheme has not been sanctioned under Section 65 of the Town Planning and Urban Development Act and as such, the authorities can make variations in the said Town Planning Scheme for allotment of separate Final Plots to the petitioners and to respondent no.

5. With the aforesaid terms, the petitioners have straightway approached this Court by presenting the petition in September, 2021 for the so called grievance way back of the year 2013 without explaining any circumstance as to why the petitioners have approached this Court practically after a period of eight years. Further it is not visible from the assertion as clearly pointed out that the petitioners have approached the authorities with a request and the request has not been considered and on the basis of such lack of pleadings, straightway the writ jurisdiction appears to have invoked.

3. Learned advocate Mr. K.K. Trivedi appearing on behalf of the petitioners has submitted that yet the final scheme has not been published, the dispute which is raised can well be considered by the authority for making variations in the scheme and had the pre-option given, the petitioners could have conveyed before the authority protesting such joint amalgamation, however, had candidly submitted that the petition is brought after eight years and has also not been able to justify about the delay which has taken place in approaching the Court while invoking writ jurisdiction. Learned advocate Mr. Trivedi has further also not been able to point out that during the passage of time, any representation or request is made or not. Hence, in the absence of any such particulars, the Court is not inclined to allow the petitioners to straightway invoke equitable extra ordinary jurisdiction of this Court. The principle of delay and laches are also not possible to be unnoticed by the

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Court especially when the writ of mandamus is sought from the Court. The basic element of seeking writ of mandamus are also completely lacking and the pleadings and in view of the gross delay in approaching the Court also, the Court is not inclined to accept the petition in the present form. Hence, no case is made out to exercise extra ordinary jurisdiction which is equitable in nature.

4. It is also not visible as to why the petitioners have approached this Court at such a belated stage, particularly, when the earlier notices have been issued way back in 2005 as well as 2006, the petitioners are well aware about such notices which are attached to the petition compilation, but as a bald assertion projected lack of knowledge and further it also appears that even the amalgamation has taken place long back in March, 2013 when preliminary Town Planning Scheme is sanctioned by the State Government under Section 65 of the Act, the petitioners have chosen to wait or kept conspicuous silence. Hence, it appears to this Court that on the basis of this kind of bald assertion, complete lack of pleadings on the aforesaid issue, it is not possible for this Court to exercise extra ordinary jurisdiction. Keeping in mind the following proposition of law laid down by the Apex Court on the issue of delay and laches, as well as on the issue of basic ingredients of invoking writ jurisdiction, particularly, for seeking writ of mandamus, the Court is of the opinion that no case is made out. The following are the observations since relevant in the decisions, are quoted hereunder :-

"(i) The decision delivered by the Hon'ble Supreme Court in the case of Karnataka Power Corporation Ltd., through its Chairman & Managing Director and Another Vs. K. Thaangappan And Another reported in (2006) 4 SCC 322., wherein the principle of delay and laches is well explained. The Court would like to

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reproduce the same hereunder :-

"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329). Sir Barnes had stated:

"Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation

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with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal (AIR 1987 SC

251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."

(ii) In the case of Veejabhai Mehta v. Charity Commissioner rendered in Special Civil Application No. 7948 of 2010 dated 28.07.2010 on on the issue of basic ingredients of invoking writ jurisdiction, particularly, for seeking writ of mandamus, this Court in para 3 has observed as under :-

3. In view of the prayer made in present petition and in respect to grievance voiced in present petition by petitioner, petitioner has not approached to respondent No.1 - Charity

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Commissioner, Ahmedabad. Therefore, before filing the petition under Article 226 of the Constitution of India, prior approach is must, as examined by this Court in the case of Somabhai A. Darji v. State of Gujarat & Ors., reported in 2007 (1) GLR 314. The relevant discussion of aforesaid decision are in Para.5 and 6, which are quoted as under :

"5. I have considered the submissions made by learned advocate Mr. Jani. The order dated 14th August 2002 which is at Page 39 wherein certain benefits are required to be given to the petitioner on the basis of information supplied by college authority. This order has been passed or issued by Joint Director of Higher Education and not issued by Commissioner of Higher Education. So, factually, the submissions made by learned advocate Mr. Jani is not correct. The important fact is that though order is in favour of the petitioner, according to him, is issued by the concerned authority in the year 2002 which is not implemented by the respondents in favour of the petitioner. Therefore, petition is filed after a period of three years claiming the benefit under order dated 14th August 2002. Meanwhile, except one reply dated 18th September 2003 addressed to the Accounts Officer through the Principal wherein certain details have been given in respect to petitioner by the Principal but so far in respect to the present petitioner is concerned, no application is filed / representation has been made to the respondent authority that why order dated 14th August 2002 is not implemented so far in favour of petitioner. Straightway, petition before approaching to the respondent authority is not maintainable and Court cannot entertain such petition. The Apex Court has considered that writ of mandamus cannot be issued straightway unless and until the petitioner first approached to the respondent authority about his grievance. The same view is taken by the Apex Court in the following reported judgments which are quoted as under :

(i) AIR 1975 SC 460 ? Para 24 in case of Saraswati Industrial Syndicate Ltd. Etc., v. Union of India.

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"S24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general role, which is subject to certain exceptions, applied by us, as it is in England, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd edition, Vol. 13, p. 106):

"As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the: mandamus desires to enforce, and that demand was met by a refusal."

(ii) AIR 1975 SC 538 ? Para 25 in case of Amrit Lal Berry v. Collector of Central Excise Central Revenue and others.

"S25. In the petition of K. N. Kapur and others, we do not even find an assertion that any representation was made against any violation of a petitioner's right. Hence, the rule recognised by this Court in Kamini Kumar Das v. State of West Bengal, AIR 1972 SC 2060 at p. 2065 that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners.??

(iii) AIR 1976 SC 1654 ? Para 42(3) in case of State of Haryana and another v. Chanan Mal etc., "S42.

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We proceed to record our conclusions as follows:

1. xxx

2. xxx

3. Any petitioner who applies for a writ or order in the nature of a Mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established.?S

(iv) 2006 (Lab. I.C.) 2081 ? Para 19 (Rajasthan High Court ? Division Bench) in case of Balwant Singh Parihar & Anr. v. Union of India & Ors. "S19. From the record of the writ petition, it appears that the petitioners have neither given any representation to the Pay Commission nor to the Union of India nor Railway Administration nor given any notice for demand of justice and straightway filed the writ petition for seeking mandamus in the matter of pay parity contrary to the well established principle of law that giving notice for demand of justice is sine qua non for seeking writ of mandamus. The writ petition deserves to be dismissed on this ground alone as there was no occasion for the respondents to consider the grievance of the petitioner's claim of parity in pay scale and also consider the objection of the respondents in reply of interference by the High Court under Article 226 of the Constitution of India in such matters. In the judgments cited by the counsel for the petitioners, it is nowhere laid down that the Court should evaluate the job for the purpose of grant of equal pay for equal work. On the contrary, in some of the judgments of the Supreme Court cited on behalf of the petitioners also and in the other judgments, it has been repeatedly held by the Supreme Court that it is not for the Court to make job evaluation for the purpose of considering the equation of post and parity in pay scale and it is for the Pay Commission, the expert body and the Government to consider and decide. Thus, it would not be proper for this Court to make an enquiry in the matter of equation of post as

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well as grant of equal pay scale in absence of any representation to the respondents or pay Commission and findings thereon. Therefore, we may observe that it is open for the petition to make a representation to the respondents/Pay Commission as and when it is constituted in the mater of parity in pay scale and it is further expected from the respondents / Pay Commission to consider the same and pass the appropriate order." 6. Therefore, according to my opinion, straightway direct petition after a period of three years without approaching to the respondent authority by the petitioner about the grievance raised in the petition cannot be entertained by this Court without approaching to the respondent authority."

5. In view of the aforesaid proposition of law, as well as in view of the aforesaid discussion, the Court is of the opinion that the petition does not deserves to be entertained in the present form. Accordingly, the same is dismissed with no order as to costs.

(ASHUTOSH J. SHASTRI, J) phalguni