Gujarat High Court
Harsh Khodidas Korat (Patel) vs State Of Gujarat on 7 October, 2022
Bench: Sandeep N. Bhatt
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4064 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4067 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4069 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARSH KHODIDAS KORAT (PATEL)
Versus
STATE OF GUJARAT
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Appearance:
MS. JYOTI BHATT, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/10/2022
CAV JUDGMENT
1.1 The present petitioners by way of present petitions
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
under Article 226 of the Constitution of India have
challenged the communication dated 15.12.2020 in Special
Civil Application No.4064 of 2021, communication dated
22.01.2021 in Special Civil Application No.4067 of 2021
and communication dated 15.12.2020 in Special Civil
Application No.4069 of 2021, by the respondent authority.
1.2 In all aforesaid petitions, the date of application is
same as 12.06.2020 and since the subject matter of the
present petitions and learned advocates appearing for the
respective parties are same as well as the reliefs prayed
by the respective petitioners are found identical, and
therefore, the present petitions are heard together.
1.3 By way of the present petitions, the respective
petitioners have challenged the impugned communication
of respondent No.4, which as per submissions of
petitioners are without any application of mind and
contrary to the provisions of The Gujarat Town Planning
& Urban Development Act, 1976 (for short "the Act"),
whereby permission for approval of development plan is
not considered. As per the say of the learned advocate
for the respective petitioners, the provisions of Section
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
29(4) of the Act provides that if the application for
approval of development plan is not granted within a
period of three months then the applications of respective
petitioners are deemed to have been granted, therefore,
the present petitions are preferred.
2.1 The brief facts giving rise to the present petition
being Special Civil Application No.4064 of 2021 are as
follows:
2.1.1 Originally land bearing Survey No.105/1 of
Village Vavdi admeasuring 36 acres and 37 Gunthas
belongs to Patel Dharamshi Thakarshi Korat (great
grandfather of petitioner and grandfather of petitioner's
father) with other lands prior to 1947. Further, apart
from Survey No.105/1, Patel Dharamshi Thakarshi Korat
also owned various other agricultural lands at village
Vavdi. Further, by virtue of promulgation, the name of
Patel Dharamshi Thakarshi Korat was mutated in the
revenue record vide Entry No.14 dated 30.10.1955 and
Entry No.130 dated 11.5.1964 for Survey No.105/1 of
Village Vavdi admeasuring 36 acres and 37 Gunthas.
Further, Patel Dharamshi Thakarshi Korat had
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
partitioned the said land bearing Survey No.105/1
admeasuring 36 acres and 37 Gunthas and 18 acres and
19 gunthas was given to his daughter-in-law - the
grandmother of petitioner and remaining 18 acres and 18
Gunthas was given to his grandson Khodidas Shivlal
(father of petitioner herein) and their names were
mutated by Entry No.710. Thereafter, Labhuben Khodidas
Korat (Patel) by family arrangement gave land
admeasuring 9 acres and 10 Gunthas (37434 sq. mtrs.)
to her grandson - Harsh Khodidas Korat, the petitioner
herein and his name was mutated in the revenue record
vide Entry No.2156 dated 26.2.2002 and for remaining
land viz. 9 acres and 9 gunthas (37332 sq. mtrs.),
Labhuben Khodidas Korat (Patel) by family arrangement
got entered the name of her son Khodidas Shivlal Korat
vide Entry No.5980 dated 25.3.2011 and thereafter
Labhuben Khodidas Korat (Patel) by family arrangement
got entered the names of her 4 daughters, which was
mutated in the revenue record vide Entry No.8662 dated
16.12.2015.
2.1.2 Further, Khodidas Shivlal Korat who had got
land bearing Survey No.105/1 Paiki admeasuring 18 acres
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
and 18 Gunthas by family partition, gave land
admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) to
his wife Chetnaben Khodidas and it was mutated in the
revenue record vide Entry No.2157 dated 26.2.2002.
Thereafter, Khodidas Shivlal, in his lifetime entered the
name of his wife Chetnaben Khodidas in the remaining
land admeasuring 9 acres and 9 Gunthas (37332 sq.
mtrs.) and it was also mutated in the revenue record
vide Entry No.5737 dated 25.10.2010. Further, Chetnaben
Khodidas got N.A. permission for her land admeasuring
Survey No.105/1 Paiki admeasuring 9 acres and 9
gunthas (37332 sq. mtrs.) Further, the present petition is
in respect of land admeasuring 9 acres and 9 gunthas
(37434 sq. mtrs.) of Survey No.105/1 Paiki 3.
2.2 The brief facts giving rise to the present petition
being Special Civil Application No.4069 of 2021 are as
follows:
2.2.1 Originally the land bearing Survey No.105/1
Paiki of Village Vavdi admeasuring 36 acres and 37
Gunthas belongs to Patel - Dharamshi Thakarshi Korat
(father-in-law of petitioner No.1 and grandfather of
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
petitioner Nos.2 to 6) with other lands prior to 1947.
Further, apart from Survey No.105/1, Patel Dharamshi
Thakarshi Korat also owned various other agricultural
lands at Village Vavdi. Further, by virtue of
promulgation, the name of Patel Dharamshi Thakarshi
Korat was mutated in the revenue record vide Entry
No.14 dated 30.10.1955 and Entry No.130 dated
11.5.1964 for Survey No.105/1 of village Vavdi
admeasuring 36 acres and 37 Gunthas.
2.2.2 Further, Patel Dharamshi Thakarshi Korat had
partitioned the said land bearing Survey No.105/1
admeasuring 36 acres and 37 Gunthas and 18 acres and
19 Gunthas was given to his daughter-in-law - petitioner
no.1, remaining 18 acres and 18 gunthas was given to
his grandson Khodidas Shivlal (petitioner No.2 herein)
and their names were mutated by Entry No.710.
Thereafter, petitioner No.1 by family arrangement gave
land admeasuring 9 acres and 10 Gunthas (37434 sq.
mtrs.) to her grandson - Harsh Khodidas Korat and his
name was mutated in the revenue record vide Entry
No.2156 dated 26.2.2002 and for remaining land viz., 9
acres and 9 Gunthas (37332 sq. mtrs.), the petitioner
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
no.1 by family arrangement got entered the name of her
son - Khodidas Shivlal Korat vide Entry No.8980 dated
28.3.2011 and thereafter petitioner No.1 by family
arrangement got entered the names of her 4 daughters,
and was mutated in the revenue record vide Entry
No.8662 dated 16.12.2015. Further, Khodidas Shivlal
Korat, who had got land bearing Survey No.105/1 Paiki
admeasuring 18 acres and 18 gunthas by family
partition, gave land admeasuring 9 acres and 9 gunthas
(37332 sq. mtrs.) to his wife - Chetnaben Khodidas and
the same was also mutated in the revenue record vide
Entry No.2157 dated 26.2.2002. Thereafter, Khodidas
Shivlal, in his lifetime entered the name of his wife -
Chetnaben Khodidas in remaining land admeasuring 9
acres and 9 Gunthas (37332 sq. mtrs.) and it was
mutated in the revenue record vide Entry No.5737 dated
25.10.2010. Further, Chetnaben Khodidas got N.A.
Permission for her land admeasuring Survey No.105/1
Paiki admeasuring 9 acres and 9 gunthas (37332 sq.
mtrs.). Therefore, the present petition is in respect of
land admeasuring 9 acres and 9 gunthas (37332 sq.
mtrs.) of Survey No.105/1 Paiki 2.
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
2.3 The brief facts giving rise to the present petition
being Special Civil Application No.4067 of 2021 are as
follows:
2.3.1 Originally land bearing Survey No.105/1 Paiki
of village Vavdi admeasuring 36 acres and 37 Gunthas
belongs to Patel Dharamshi Thakarshi Korat (grandfather
of petitioner no.1) with other lands prior to 1947.
Further, apart from Survey No.105/1, Patel Dharamshi
Thakarshi Korat also owned various other agricultural
lands at Village Vavdi. Further, by virtue of
promulgation, the name of Patel Dharamshi Thakarshi
Korat was mutated in the revenue record vide Entry
No.14 dated 30.10.1955 and Entry No.130 dated
11.5.1964 for Survey No.105/1 of village Vavdi
admeasuring 36 acres and 37 Gunthas.
2.3.2 Further, Patel Dharamshi Thakarshi Korat had
partitioned the said land bearing Survey No.105/1
admeasuring 36 acres and 37 Gunthas and 18 acres and
19 gunthas was given to his daughter-in-law - Labhuben
Shivialthe mother of petitioner no.1 and remaining 18
acres and 18 gunthas was given to his grandson viz,
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
Khodidas Shivial (petitioner No.1 herein) and their names
were mutated by Entry No.710. Thereafter Labhuben
Shivial by family arrangement gave land admeasuring 9
acres and 10 gunthas (37434 sq. mtrs.) to her grandson
Harsh Khodidas Korat and his name was mutated in the
revenue record vide Entry No.2156 dated 26.2.2002 and
for the remaining land viz. 9 acres and 9 gunthas
(37332 sq. mtrs.) and Labhuben Khodidas by family
arrangement got entered the name of her son Khodidas
Shivilal Korat petitioner No.1 vide Entry No.5980 dated
25.3.2011 and thereafter, Labhuben Shivial by family
arrangement got entered the names of her 4 daughters
which was mutated in the revenue record vide Entry
No.8662 dated 16.12.2015.
2.3.3 Further, the petitioner No.1, who had got land
bearing Survey No.105/1 Paiki admeasuring 18 acres and
18 gunthas by family partition, gave land admeasuring 9
acres and 9 gunthas (37332 sq. mitre.) to his wife
Chetnaben Khodidas petitioner No.2 and the same was
mutated in the revenue record vide Entry No.2157 dated
26.2.2002. Thereafter, petitioner no.1 - Khodidas Shivial,
in lifetime entered the name of his wife Chetnaben
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
Khodidas petitioner No.2 in the remaining land
admeasuring 9 acres and 9 Gunthas (37332 sq. mtrs.)
and the same was also mutated in the revenue record
vide Entry No.5737 dated 25.10.2010. Further, the
petitioner No.2 - Chetnaben Khodidas got N.A.
permission for her land admeasuring Survey No.105/1
Paiki admeasuring 9 acres and 9 gunthas (37332 sq.
mtrs.). Therefore, the present petition is in respect of
land admeasuring 9 acres and 9 gunthas (37332 sq.
mtrs.) of Survey No.105/1 Paiki 1.
3. Heard learned advocate Mr. A.R. Thacker for the
respective petitioners, learned Assistant Government
Pleader Ms. Jyoti Bhatt for the respondent No.1 - State
and learned advocate Mr. H.S. Munshaw for the
respondent No.3. Today, the present petitions are heard
for final disposal.
4.1 Learned advocate Mr. A.R. Thacker for the
respective petitioners has submitted that in view of
development of the Rajkot City, and in particular, the
area where the land in question is situated is under
development area, and therefore, the respective
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petitioners decided to convert the said agricultural land
into non-agriculture land and decided to develop the land
by getting the Development Permission. Application for
development permission for approval of layout plan is
required to be submitted to the Rajkot Municipal
Corporation and development permission for approval of
layout plan is required to be approved by the concerned
authority i.e. Rajkot Municipal Corporation through the
Town Planning Department of Rajkot Municipal
Corporation. He has submitted that as per the provisions
of The Gujarat Town Planning and Urban Development
Act, 1976 and the Rules framed thereunder, the
application for development permission for approval of
layout plan has to be made to the Rajkot Municipal
Corporation. He has further submitted that though the
activity for passing of development plan and building
construction plan etc. has been made online in entire
state of Rajkot Municipal Corporation till today; the
process for approval of development permission for
approval of layout plan is being handled by physical
mode only. He has further submitted that in view of the
provisions of Section 27 and 28 of The Gujarat Town
Planning and Urban Development, 1976, which relate to
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grant of permission for development and Section 29 of
the Act thereof, deals with grant or refusal of
permission. Therefore, he has submitted that respondent
corporation is supposed to follow the procedure laid down
under Section 27, 28 & 29 of the Act as they are
binding provisions on respondent corporation. He has
further submitted that in pursuance to the aforesaid
provisions, the respective petitioners are intended to
develop their agricultural land and to get the
development permission, the petitioner made application
to the Rajkot Urban Development Authority on
29.11.2019 for issuance of Zoning Certificate and The
Junior Town Planner, Rajkot City of Rajkot Urban
Development Authority issued letter on 3.12.2019 along
with copy of the Zoning Certificate and accordingly, the
development plan prepared by the architect, the
petitioner submitted their application for the development
permission for approval of development plan. He has
further submitted that the said plan in fact is submitted
in December, 2019 but respondent No.4 did not issue
receipt acknowledging the said application upon receipt of
the said application as required under Section 29(1) of
the Act. He has further submitted that the petitioner
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had not heard anything from the office of respondent
no.4 up to March, 2020 and thereafter due to nationwide
lockdown imposed by the Govt. of India due to pandemic
of Covid-19 it was not possible for the petitioner to
follow up the matter and upon Government relaxing the
lockdown and opening of the Government Offices on
being asked, the petitioner has submitted the copies of
latest revenue records obtained on 9.5.2020. He has
further submitted that under The Town Planning Act, it
was duty of the respondent no.4 to issue written
acknowledgment of the receipt of the application, verify
the application submitted by any person(s) for
development permission and thereafter accept the
scrutiny fees.
4.2 He has further submitted that after verification of
the application for development permission for approval
of layout plan and other documents, on 12.06.2020 the
concerned officer demanded the scrutiny the fees and the
petitioner paid the scrutiny fees Rs.1,12,302/- for grant of
development permission and the petitioner deposited the
same in the office of the respondent no.4 on 12.6.2020
for which the receipt is also issued by the respondent
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No.4. He has further submitted that since the receipt is
issued and therefore, under the provisions of Sub-Section
(4) of Section 29 of the Act, 1976, if any application has
been submitted to the authority under the provisions of
Section 27 or Section 28 of the Act, the authority is
under obligation to communicate its order to the
applicant within three months from the date of receipt of
such application and if the authority fails to
communicate in connection with development permission
its order within three months from the date of receipt of
the application, such permission shall be deemed to have
been granted to the applicant on the expiry of the said
period of three months as per the provision of
law/statues. He has further submitted that after
submitting the application and making payment of
scrutiny fees on 12.6.2020, the petitioner did not hear
anything from the Town Planning Department of Rajkot
Municipal Corporation of Rajkot Municipal Corporation
for very long time and did not raise any query in the
application and also did not raise any objection that the
application is not as per the provision of with provision
of the Gujarat Town Planning Act, and Rules or the
provisions of Common G.D.C.R., which is applicable to
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the areas of Rajkot Municipal Corporation. However, he
has submitted that with malafide intention after long
period of more than 6 months to the great shock and
surprise of the petitioner, the petitioner received
order/communication dated 15.12.2020 of Assistant Town
Planner, Rajkot Municipal Corporation informing the
petitioner that the land in question of the petitioner is
covered under the proposed T.P. Scheme No.25 (Vavdi)
for which intention has been declared on 16.6.2020. He
has further pointed out that the said letter, the
Assistant Town Planner, Rajkot Municipal Corporation
has made reference to the petitioner's application as
dated 22.06.2020 with malafide intention and therefore,
he has submitted that the said communication is
arbitrary, discriminatory and with malafide intention.
4.3 He has further submitted that the pursuant to
notice issued by this Court, the petitioner as well as
respondent No.3 has filed the reply but respondent No.3
have not controverted the averments made in the present
petitions. He has further submitted that on the contrary,
then respondent has admitted by way of documents
submitted before this Hon'ble Court along with affidavit
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
dated 28.05.2021. He has further submitted that notice of
the respondent, which is part of the affidavit in reply
indicates that the application of the petitioner was
complete and they have accepted the scrutiny fees on
12.06.2020 and issued receipt thereof on 12.06.2020 but
due to their lethargy they have inwarded the
application on 22.6.2020 for reasons best known to them.
He has further submitted that "noting indicate that when
application was submitted at time on proposal for TP
Scheme therefore, in noting authority mention non-T.P.
area". He has further submitted that considering the
date of application dated 12.06.2020 no reply is given
within three months by respondent authority nor any
query raised nd the permission to the petitioner is
deemed to have been granted. He has further submitted
that the affidavit is silent that why the respective
respondent have not given any response to such
communication within a period of thee from the date of
application made by the present petitioner. He has
further submitted that petitioner has specifically averred
in para 26 that the application was submitted in
December, 2019 and after payment of scrutiny fees as
per noting thereof by the respondent, the payment of
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scrutiny fees made on 12.06.2020 and therefore, the
application is deemed to have been granted under
Section 29(4) of the Act. He has further submitted that
by referring 29(4) of the Act, the respondent has
admitted that on 12.06.2020, the application of the
petitioner is accepted and three months would expire in
September, 2020 and the respondent have replied on
15.12.2020 and 22.01.2021, and therefore, in view of the
provisions of Section 29(4) of the Act, the permission is
deemed to have been granted.
4.4 He has further submitted that intention of the
legislature to make such type of provisions under the Act
as well as in the G.D.C.R. at various stages it is to see
that public should not suffer and the authorities will
work promptly. He has further submitted that the
authority to contend that said is not applicable when the
state legislature has enacted such laws. He has further
submitted that the respondent has not disclosed the
necessary things in the affidavit in reply and has come
out with the case that the application is preferred by
the petitioner which is inwarded on 22.6.2020 from also,
after 90 day, the deeming fiction will come into play. He
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has further submitted by pointing out the proposed
layout plan that where 40% reservation which is required
for proposed T.P. Road is made and therefore, also
looking to the affidavit in reply, it is not the case of the
respondent that the plan put up by the petitioner is not
proper or not in accordance with the G.D.C.R. He has
further submitted that in fact in the noting, the plan
put up is proper as per law.
4.5 He has further relied upon the judgments of the
Hon'ble Apex Court in the cases of (i) Bhavnagar
University Vs. Palitana Sugar Mill (P) Ltd. Anr. reported
in 2003 (2) SCC 111, which pertains to interpretation of
provisions of the said Act, (ii) Srinivasa Rao v. Land
Tribunal, Sedam reported in 2001 (9) SCC 383, which
pertains to issue of deeming fiction (iii) Esha Ekta Coop.
Housing Society Ltd. v. Municipal Corpn. of Mumbai
reported in 2013 (5) SCC 357 (iv) Live Oak Resort (P)
Ltd. v. Panchgani Hill Station Municipal Council reported
in 2001 (8) SCC 329 (v) State of Haryana & anr. Vs.
Hitkari Potteries Ltd. & anr. reported in 2010 (10) SCC
74 (vi) M. Venugopal Vs. Divisional Manager, Life
Insurance Corporation of India reported in 1994 (2) SCC
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323 (vii) Shree Ram Urban Infrastructure Vs. State of
Maharashtra reported in 2019 (20) SCC 228.
4.6 In support of his submissions, he has relied upon
the judgments of this Court in the case Simandhar
Swami Aradhna Trust versus State of Gujarat & Others
of reported in 2016 (4) GLR 3245 and has submitted
that the Court has observed in para 12 of that judgment
that Section 29(4) of the Act has been considered and it
has been held that permission under Section 29(4) is
deemed to have been granted. He has further relied
upon the judgments of Division Bench of this Court in
the cases of (i) Dhanjibhai Tapubhai Patel versus
Gujarat Industrial Development Corporation reported in
2020 JX GUJ 235. (ii) Parul University versus Union of
India reported in 2017 JX GUJ 50 (iii) Nurbibi
Malangbhai Mansuri versus State of Gujarat reported in
2005 (1) GLH (U.J) 5. He has prayed that the present
petitions are required to be allowed by considering the
abovementioned legal position for each present petitions.
5.1 Per contra, learned advocate Mr. H.S. Munshaw for
the respondent Nos.3 & 4 in the respective petitions has
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submitted that the present petitioner is taking wrong
advantage of the situation by resorting Section 29(4) of
the Act by claiming deeming fiction. He has drawn the
attention of this Court by affidavit in reply filed by
respondent No.4 and has submitted that Rajkot
Municipal Corporation has rightly passed the impugned
order darted 15.12.2020, which is just and proper and
the petitioner is not entitled to any relief in the facts
narrated in the present reply. In reply filed by the
respondent No.4, he has submitted that Rajkot Municipal
Corporation is a statutory body duly constituted under
the provisions of Gujarat Provincial Municipal
Corporation Act, 1949. He has further submitted that the
General Board of Rajkot Municipal Corporation passed a
resolution No.12 in its meeting dated 16.06.2020
declaring an intention to prepare Draft Town Planning
Scheme No.25 (Vavdi) under the provisions of Section
41(1) of the Act. He has further submitted that
agricultural land of the petitioner bearing Revenue
Survey No.105/1 Paiki 3 of Village Vavdi, Taluka and
District Rajkot, admeasuring 37,332 Sq. Mtrs. as
contended by him is covered in part of the Draft Town
Planning Scheme No.25. He has further submitted that
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subsequent to passing of resolution dated 16.06.2020, the
same was published in the Government Gazette as well
as local newspapers on 26.06.2020. He has further
submitted that respondent No.1 was also addressed a
letter dated 02.07.2020 by the Municipal Commissioner,
Rajkot Municipal Corporation informing about the
intention declared by Rajkot Municipal Corporation in its
meeting dated 16.06.2020 for preparing Draft Town
Planning Scheme No.25 (Vavdi) as well as publication of
the same in Government Gazette as well as newspapers.
5.2 He has further submitted that even the present
petitioner was addressed a letter dated 08.12.2020
informing about the date of owners' meeting to be held
by the authority for providing information about the
intended Draft Town Planning Scheme No.25 of Vavdi.
He has further submitted that the General Board passed
a Resolution dated 16.06.2020 declaring its intention to
prepare a draft Town Planning Scheme No.25 of Vavdi
only after consultation with the Chief Town Planner,
Gujarat State, Gandhinagar under the provisions of
Section 41(1) of the Act and the advertisements were
published in the newspapers dated 11.12.2020 inviting
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objections and suggestions within a prescribed time limit
of 30 days.
5.3 He has further submitted that the petitioner
through representative attended the owners' meeting on
15.12.2020 by the respondent No.4. and the petitioner
even put forward his objections and suggestions through
a letter dated 13.01.2021. The objections and suggestions
received from the interested parties were examined and
appropriate decision rejecting the same was taken
thereafter a Draft Town Planning Scheme No.25 (Vavdi)
is forwarded to the respondent No.1 for sanction on
09.03.2021. He has further submitted that the petitioner
herein was fully aware about the entire exercise initiated
in accordance with the provisions of the Act and has
participated in the process and his suggestions and
objections submitted in writing are also dealt with at
length before the Draft Town Planning Scheme No.25
(Vavdi), which was forwarded to the respondent No.1 on
09.03.2021 by way of filing the prescribed time limit of 9
months.
5.4 He has further submitted that it is case of the
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petitioner that as his application for development
permission as well as sanction of plans and layouts were
submitted and scrutiny fee was also paid on 12.06.2020,
and therefore, the petitioner is entitled to the necessary
development permission and sanction of plans and
layouts, have no bearing. He has further submitted that
the say of of the petitioner regarding the payment of
scrutiny fees dated 20.06.2022 that and all required
documents and the same are inwarded only on
22.06.2020. He has further submitted that intention of
preparing of draft Town Planning Scheme No.25 (Vavdi)
is declared on 16.06.2020 and therefore, as per the
provisions of Section 49(1)(a) of the Act is restricting
the development of the land covered under the Town
Planning Scheme right from the date of declaration of
intention. He has referred the provisions of Section 49(1)
(a) of the Act for drawing attention of this Court. He
has further submitted that in other words, the petitioner
is not entitled to develop the land and the petitioner is
fully aware about the entire factual process, who has
tried to mislead the Hon'ble Court by way of twisting
the factual background. He has further submitted that
the provisions of Sections 26 to 39 of the Act, 1976
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relate to control of development and use of land included
in development plans and the same are not applicable in
the present case as Draft Development Plan prepared by
Rajkot Urban Development Authority is sanctioned by the
Respondent No.1 on 27.10.2016 and notification is also
issued. He has further submitted that in the present
case the petitioner has submitted an application for
development permission and sanction of plans and
layouts and the same are required to be processed and
considered in accordance with the provisions of Rules 6.4,
6.5 and 6.17 of prevailing Common General Development
Regulations (G.D.C.R.).
5.5 He has drawn the attention of this Court towards
such Rules, which are annexed herewith the reply filed
by the respondent corporation. He has further submitted
that the petitioner has raised the contention that his
application dated 12.06.2020 ought to have been granted
as a resolution declaring intention for preparing Draft
Town Planning Scheme No.25 (Vavdi) is passed on
16.06.2020 by General Board of Rajkot Municipal
Corporation is dehors the facts and material on record.
He has further submitted that the contentions raised by
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the petitioner for deemed sanction of plans and layouts
and grant of development permission on a ground that
no decision is taken within the required period of 90
days from submission of application dated 12.06.2020 has
no merits. In view of the provisions of the Act, and view
taken by the Hon'ble High Court of Gujarat through
catena of decisions that there cannot be a deemed
approval in such cases. The Hon'ble Court has also held
that such applications are to be decided in accordance
with law applicable on the date of which the authority
according to restriction is called upon to apply its mind
to the prayer of permission of development.
5.6 In support of his contentions, he has relied on the
judgment of this Court in the case of (i) Girishbhai
Nagjibhai Savaliya versus State of Gujarat rendered in
Special Civil Application No.15458 of 2013 (ii) Kiritbhai
Manibhai Patel vs. Gate of Gujarat rendered in Letters
Patent Appeal No.1228 of 2014 and other connected
matters dated 09.01.2015 and has prayed that the case
of the petitioner is meritless and is required to be
dismissed as the petitioner is trying to mislead the
Court and seeking the relief against the settled position
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of law.
6. In rejoinder, learned advocate Mr. A.R. Thacker for
the petitioner has submitted that the decisions cited by
learned advocate Mr. Munshaw in case of Kiritbhai
Manibhai Patel (supra), the facts of that case is totally
different in this case, the issue is regarding 40% of
reservation as per circulation dated 04.12.2012 and in
the present case the petitioner has already availed 40%
reservation, and has submitted that the said case is not
applicable. He has further submitted that in the case of
Girishbhai Nagjibhai Savaliya (supra), it is not helpful to
the respondent corporation and it is not applicable in the
facts of the present case in view of the judgments of
Hon'ble Apex Court as well as Co-ordination Bench as
facts of this case are totally different and therefore, it is
not applicable in the present case.
7. In sir-rejoinder, learned advocate Mr. Munshaw for
the respondent Nos.3 & 4 has submitted that the
judgments which are cited by the petitioner, one or two
judgments pertain to different acts and are not
applicable to the facts of the present case and even
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judgment, which are cited by learned advocate for the
petitioner in supporte of his case are also different with
the facts and one or two judgments pertain to the
Gujarat Town Planning & Urban Development Act but
not applicable in the facts and circumstances of the
present case, therefore, he has prayed to dismissed the
present petitions.
8.1 I have heard the arguments at length of learned
advocates appearing for respective parties. I have gone
through the brief notes submitted by learned advocate for
the petitioner in all the petitions.
8.2 From the factual aspect, it transpires that the
petitioner has paid the scrutiny fee on 12.06.2020. It is
not in dispute that the general body has passed the
resolution on 16.06.2020 in general board meeting about
the Draft of Town Planning Scheme No.25 (Vavdi). It is
also not in dispute that the date, which is inward of the
said application of the petitioner is mentioned as
22.06.2020 by the respondent authority and the
respondent authority is a statutory body, and therefore,
there is no reason to disbelieve the certain facts, which
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is coming on record on behalf of the respondent
authority unless it is proved other way. Now, the
contention of the learned advocate for the present
petitioner is mainly based on the Section 29(4) of the
Act, which is reproduced as under:
"Section 29:-
Grant or refusal of permission. - (1) On receipt of an
application under Section 27 or Section 28, the appropriate
authority shall furnish the applicant with a written
acknowledgment of its receipt and after satisfying itself that
the development charge [and scrutiny fees,] if any, payable by
the applicant has been paid and after making such inquiry
as it thinks fit may, subject to the provisions of this Act, by
order in writing.-
(i) grant the permission with or without any condition; or
(ii) grant the permission, subject to any general or special
orders made by the State Government in this behalf; or
(iii) refuse to grant the permission.
(2) Any permission under sub-section (1) shall be granted in
the prescribed form and every order granting permission
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subject to conditions or refusing permission shall state the
grounds for imposing such conditions or for such refusal.
(3) Every order under sub-section (1) shall be communicated
to the applicant in the manner prescribed by regulations.
(4) If the appropriate authority fails to communicate its order
to the applicant within three months from the date of receipt
of the application, such permission shall be deemed to have
been granted to the applicant on the expiry of the said
period of three months.
(5) If any person carries on any development work or retains
the use of any building or work or continues the use of land
in contravention of the provisions of Section 27 or Section 28
or of any permission granted under sub-section (1) of this
section, the appropriate authority may direct such person, by
notice in writing, to stop further progress of such work or to
discontinue any use and may, after making an inquiry in the
prescribed manner, remove or pull down any building or work
carried out and restore the land to its original condition or,
as the case may be, take any measures to stop such use.
(6) Any expenses incurred by the appropriate authority under
sub-section (5) shall be a sum due to the appropriate
authority under this Act from the person in default."
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8.3 Further, it is relevant to note the provisions of
Section 41(1) of the Act, which reads as under:
"Section 41:-
Power of appropriate authority to resolve on declaration of
intention to make scheme. - (1) Before making any town
planning scheme under the provisions of this Act in respect
of any area, the appropriate authority in consultation with
the Chief Town Planner may, by resolution, declare its
intention to make such a scheme in respect of such area."
8.4 Further, it is also relevant to note the provisions of
Section 49(1) of the Act, which reads as under:
"Section 49:-
Restrictions on use and development of land after declaration
of a scheme. -
(a) On or after the date on which a draft scheme is
published under Section 41, no person shall, within the area
included in the scheme, carry out any development unless
such person has applied for and obtained the necessary
permission for doing so from the appropriate authority in
prescribed form [and on payment of such scrutiny fees as
may be prescribed by regulations;
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(b) where an application for permission under clause (a) is
received by the appropriate authority, it shall send to the
applicant a written acknowledgment of its receipt and after
making such inquiry as it deems fit and in consultation with
the Town Planning Officer, if any, may either grant or refuse
such permission or grant it subject to such conditions as it
may think fit to impose;
[Provided that any such permission or condition thereto shall
be in accordance with the draft Town Planning Scheme
sanctioned under sub-section (2) of Section 48 and in line
with the notification of the Government while according such
sanction.
(c) if the appropriate authority does not communicate its
decision to the applicant within three months from the date
of acknowledgments of its receipt, such permission shall be
deemed to have been granted to the applicant;
(d) if any person contravenes the provisions of clause (a) or
of any condition imposed under clause (b), the appropriate
authority may direct such person by notice in writing to stop
any development in progress, and after making an inquiry in
the prescribed manner remove, pull down, or alter any
building or other development or restore the land or building
in respect of which such contravention is made to its original
condition;
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(e) any expenses incurred by the appropriate authority under
clause (d) shall be a sum due to it under this Act from the
person in default;
(f) the provisions of Section 35 shall so far as may be, apply
in relation to the unauthorised development or use of land
included in a town planning scheme;
(g) the restrictions imposed by this section shall cease to
operate in the event of the State Government refusing to
sanction the draft scheme or the preliminary scheme or in
the event of the withdrawal of the scheme under Section 66
or in the event of the declaration of intention lapsing under
sub-section (3) of Section 42;
(h) any diminution in the value of an original plot occasioned
by any contravention of the provisions of clause (a) or of any
condition imposed under clause (b) shall, notwithstanding
anything contained in Sections 77, 78 and 79 be taken into
account in fixing the market value of such plot."
8.5 Now, considering the facts of the present case, it is
not in dispute that on 12.06.2020, the application for
scrutiny fees is made, which is proceeded on 22.06.2020
and the resolution is passed by Rajkot Municipal
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Corporation in the general board meeting on 16.06.2020
for preparing Draft Town Planning
Scheme No.25. It also transpires from the record that
though some notings are made in favour of the present
petitioner at earlier point of time, but the fact remains
that the present petitioner was for the process of Town
Planning Scheme and the objections are also filed by the
present petitioner on 13.01.2021 and the present
petitioner had also attended the meeting on 15.12.2020
through its representatives and the objections are
examined and the same is rejected and thereafter, the
said scheme is forwarded for sanction on 09.03.2021 by
respondent corporation. Therefore, it is not in dispute
that after resolution is passed by the Rajkot Municipal
Corporation dated 16.06.2020, the various processes had
been commenced and the present petitioner had
participated and the provisions of Section 49(1)(a) of the
Act restricts the allotment of the land covered under the
Town Planning Scheme right from the date of declaration
of intention. It is further relevant to note that the
provision of Rules 6.4, 6.5 and 6.17 of the G.D.C.R.
extract of which is produced along with the affidavit in
reply by the respondent corporation, which also supports
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the say of respondent - corporation.
8.6 Further, considering the judgment of this Court in
the case of Simandhar Swami Aradhna Trust (supra),
which cited by learned advocate Mr. Thacker, which
pertains to Bombay Tenancy & Agricultural Land Act,
1948 but there is some reference in para 12 of earlier
judgments, wherein the issue pertains to Section 29 of
the Act, where the Hon'ble Court has observed that in
view of the deeming fiction, if the appropriate authority
has failed to communicate its order within a period of
three months from the date of receipt of the application,
such permission is deemed to have been granted to the
applicant.
8.7 It is also relevant to note that the other judgments
which are cited by learned advocate Mr. Thacker are on
the different facts and provisions of law and it is only
for showing that the deeming fiction has given effect in
the various facts and circumstances.
8.8 Further, It is also relevant to note in the facts of
the present case that the judgment of the Hon'ble Apex
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Court in the case of Live Oak Resort (P) Ltd. & Another
vs. Panchgani Hill Station Municipal Council and
Another reported in 2001 8 SCC 239, which is cited by
learned advocate Mr. Thacker, pertains to Town Planning
Act whereby learned advocate Mr. Thacker has relied
upon para 29 of that judgment, which reads as under:
"29. As regards the issue of deemed sanction, the High
court answered it in the negative recording therein that the
appellants were refused of any sanction though beyond the
period as such deemed sanction would not arise.
Unfortunately, we cannot lend our concurrence thereto.
Panchgani Municipal Council being a 'C' Class Municipal
Council of Maharashtra in its Standardised Buildings Bye-
laws, in particular, bye-law 9.2 records that while the
authority may sanction or refuse a proposal, there stands an
obligation on the part of the authority to communicate the
decision and where no orders are communicated within 60
days from the date of submission of the plan either by way
of a grant or refusal thereto, the authority shall be deemed
to have permitted the proposed construction. In view of our
observations noticed hereinbefore, we are not inclined to go
into this issue in any detail suffice however to record that
the submissions pertaining to deemed sanction has substance
and cannot be brushed aside in a summary fashion. Eventual
rejection does not have any manner of correlation with
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deemed sanction - it is only that expiry of the 60 days that
the sanction is deemed to be given, subsequent rejection
cannot thus affect any work of construction being declared as
unauthorised. The deeming provision saves such a situation.
As noticed above, we are not inclined to detain ourselves any
further on this score."
However, in the very para, the Hon'bel Supreme
Court has observed that eventual rejection does not have
any manner of co-relation with deemed sanction and it is
only on expiry of 60 days, that sanction is deemed to be
given and subsequent rejection cannot affect any work of
construction being declared as unauthorized and deeming
provisions have such a situation, and therefore, in the
present case, the facts are different. Though, the law
laid down by the Hon'ble Apex Court is binding on one
and all on principle but on facts, that judgment is not
helpful to the case of the present petitioner. Therefore,
the judgments cited at the Bar are factually not helpful
to the case of the present petitioner and more
particularly, in view of the provisions of Section 49(1) of
the Act.
8.9 Further, in the facts of the present case
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considering the judgment of Division Bench of this Court
in the case of Kiritbhai Manibhai Patel (supra) cited at
the Bar by learned advocate Mr. Munshaw and more
particularly para 17, 18 and 20 are relevant and
reproduced hereunder for ready reference:
"17. As regards the plea of the appellants that their
applications for development permissions are to be decided in
accordance with law applicable on the date of their
applications, we find that the learned Single Judge has
rightly held that the law applicable to the applications is of
the day when the applications are decided for grant of
permission. Since the learned Single Judge has referred the
decision in the case of T. Vijayalakshmi (supra) as regards
applicability of law to the application for development
permission, we are not repeating the reproduction of the
observations made by the Hon'ble Supreme Court in the said
decisions. Suffice it to say that if the application for
development permission is granted contrary to the
requirements of law in existence when the decision is taken
on the application for permission, unbalanced situation of
unplanned and haphazard development of some land may
arise which would not be in accordance with the provision for
planned development made in the Town Planning Scheme in
offing.
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18. In view of the above and having regard to the
provision of subsection (1) of section 29 of the Act, when the
appropriate authority is to be satisfied as regards compliance
of different aspects in connection with the permission sought
for and has discretion to make inquiry as deemed fit, we find
that considering the object of the Act for planned
development of the city and the development plan having
been sanctioned, mere expiry of the period of three months
from the date of applications for development permission
would not confer any vested right to the appellants for
development of their lands as if the permission was granted
to them.
19. Section 40 and 41 of the Act read as under:
"40. Making and contents of a town planning scheme.-
(1)subject to the provisions of this Act or any other law for
the time being in force, the appropriate authority may make
one or more town planning schemes for the development area
or any part thereof, regard being had to the proposals in the
final development plan, if any.
(2) A town planning scheme may be made in accordance with
the provisions of this Act in respect of any land which is -
(i) in the course of development;
(ii) likely to be used for residential or commercial or
industrial or for building purposes; or
(iii) already built upon.
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Explanation.- For the purpose of this sub-section the
expression "land likely to be used for building purposes" shall
include any land likely to be used as, or for the purpose of
providing, open spaces, roads, streets, parks, pleasure or
recreation grounds, parking spaces or for the purpose of
executing any work upon or under the land incidental to a
town planning scheme, whether in the nature of a building
work or not.
(3) A town planning scheme may make provision for any of
the following matters, namely-
(a) the laying out or relaying out of land, either vacant or
already built upon;
(b) the filling up or reclamation of low-lying, swampy or
unhealthy areas, or levelling up of land;
(c) lay-out of new streets or roads, construction, diversion,
extension, alteration, improvement and closing up of streets
and roads and discontinuance of communications;
(d) the construction, alteration and removal of buildings,
bridges and other structures;
(e) the allotment or reservation of land for roads, open
spaces, gardens, recreation grounds, schools, markets, green-
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belts, dairies, transport facilities, public purposes of all kinds;
(f) drainage, inclusive of sewerage, surface or sub-soil
drainage and sewage disposal;
(g) lighting;
(h) water supply;
(i) the preservation of objects of historical or national interest
or natural beauty, and of buildings actually used for religious
purposes;
(j) the reservation of land to the extent of ten per cent, or
such percentage as near thereto as possible of the total area
covered under the scheme, for the purpose of providing
housing accommodation to the members of socially and
economically backward classes of people;
(jj) (a) the allotment of land from the total area covered
under the scheme, to the extent of.-
(i) fifteen per cent for roads,
(ii) five per cent for parks, play grounds, gardens and
open space,
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(iii)five per cent for social infrastructure such as school,
dispensary, fire brigade, public utility place as
earmarked in the Draft Town Planning Scheme, and
(iv) fifteen per cent for sale by appropriate authority for
residential, commercial or industrial use depending upon
the nature of development;
Provided that the percentage of the allotment of land
specified in paragraphs (i) to (iii) may be altered
depending upon the nature of development and for the
reasons to be recorded in writing;
(b) the proceeds from the sale of land referred to in
para (iv) of sub-clause (a) shall be used for the purpose
of providing infrastructural facilities;
(c) the land allotted for the purposes referred to in
paragraphs (ii) and (iii) of sub-clause (a) shall not be
changed by variation of schemes for the purposes other
than public purpose;
(k) the imposition of conditions and restrictions in regard to
the open space to be maintained around buildings, the
percentage of building area for a plot, the member, size,
height and character of building allowed in specified areas,
the purposes to which buildings or specified areas may or
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may not be appropriated, the sub-division of plots, the
discontinuance of objectionable uses of lands in any area in
specified periods, parking spaces and loading and unloading
spaces for any building and the sizes or locations of
projections and advertisement signs;
(l) the suspension, so far as may be necessary, for the proper
carrying out of the scheme, of any rule, bye-law, regulation,
notification or order made or issued under any Act of the
State Legislature or any of the Acts which the State
Legislature is competent to amend; Provided that any
suspension under this clause shall cease to operate in the
event of the State Government refusing to sanction the
preliminary scheme, or in the event of the withdrawal of the
scheme under Section 66, or on the coming into force of the
final scheme;
(m) such other matters not inconsistent with the objects of
this Act as may be prescribed.
41. Power of appropriate authority to resolve on declaration
of intention to make scheme.-
(1) Before making any town planning scheme under the
provisions of this Act in respect of any area, the appropriate
authority in consultation with the Chief Town Planner may,
by resolution, declare its intention to make such a scheme in
respect of such area.
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(2) Within twenty-one days from the date of such declaration
(hereinafter referred to as the declaration of intention to
make scheme), the appropriate authority shall publish it in
the prescribed manner and shall despatch a copy thereof
along with a plan showing the area which it proposes to
include in the town planning scheme to the State
Government.
(3) A copy of the plan despatched to the State Government
under sub-section (2) shall be open to the inspection of the
public during office hours at the office of the appropriate
authority."
Considering the ratio laid down by the Division
Bench of this Court in the aforesaid judgment, it was
specifically held that the development permissions are to
be decided in accordance with law applicable on the date
of their application and in the present case, the process
for Draft Planing Scheme is commence.
8.10 Further, considering the provisions of Section
29(1) of the Act, it is found that when the appropriate
authority is satisfied as regards in compliance of
different aspects in connection with the permission
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sought, it has discretion to make enquiry is deem fit,
and the Division Bench of this Court found that the
object of the Act for plan development of city and
development plan having been sanctioned, mere on expiry
of period of three months from the date of applications
for development permission, would not confer any vested
right to the petitioners for development of their lands as
if the permission was granted to them by deeming
fiction.
8.11 Further, considering the judgment this Court in
the case of Girishbhai Nagjibhai Savaliya versus State of
Gujarat rendered in Special Civil Application No.15458 of
2013 cited by learned advocate Mr. Munshaw at the Bar
and more particularly para 23 is relevant and reproduced
hereunder for ready reference:
23. That along with issues considered in the case of
Chairman,
Indore Vikas Pradhikaran [supra], the Apex Court also
considered and answered that whether application preferred
by respondents for seeking permission for development in
accordance with law as it existed at the time when
application is preferred or at the time when such application
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is decided. The Apex Court after considering certain
decisions of the Privy Council, in paras 106, 107 and 108
held as under:
"106. The learned counsel would submit that the said
direction is not correct as the High Court
should have directed the Director to consider the
respondents' application in accordance with the law as
it existed at the relevant point of time. We do not
subscribe to the said view as it is now wellknown that
that where a statute provides for a right, but
enforcement thereof is in several stages, unless and
until the conditions precedent laid down therein are
satisfied, no right can be said to have been vested in
the person concerned.
107. In Director of Public Works v. Ho Po Sang [1961
AC 901 : (1961) 2 All ER 721], the Privy Council
considered the said question having regard to
the repealing provisions of the Landlord and
Tenant Ordinance, 1947 as amended on 94 1957. It was
held that having regard to the repeal of Sections 3A to
3E, when applications remained pending, no accrued or
vested right was derived stating:
"In summary, the application of the second
appellant for a rebuilding certificate conferred no
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right on him which was preserved after the
repeal of Sections 3A to 3E, but merely conferred
hope or expectation that the Governor inCouncil
would exercise his executive or ministerial
discretion in his favour and the first appellant
would thereafter issue a certificate. Similarly, the
issue by the first appellant of notice of intention
to grant a rebuilding certificate conferred no right
on the second appellant which was preserved
after the repeal, but merely instituted
a procedure whereby the matter could
be referred to the GovernorinCouncil.
The repeal disentitled the first appellant from
thereafter issuing any rebuilding certificate
where the matter had been referred by
petition to the GovernorinCouncil but had not
been determined by the Governor."
[See also Lakshmi Amma v. Devassy [1970 KLT 204]
The question again came up for
consideration in Howrah Municipal Corpn. v. Ganges
Rope Co. Ltd. [(2004) 1 SCC 663], wherein this Court
categorically held : [SCC p.680, para 37]
"The context in which the respondent Company
claims a vested right for sanction and which has
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been accepted by the Division Bench of the High
Court, is not a right in relation to ownership or
possession of any property for which the
expression vest is generally used. What we can
understand from the claim of a vested right set
up by the respondent Company is that on the
basis of the Building Rules, as applicable to their
case on the date of making an application for
sanction and the fixed period allotted by the
Court for its consideration, it had a
legitimate or settled expectation to obtain the
sanction. In our considered opinion, such settled
expectation, if any, did not create any vested
right to obtain sanction. True it is, that the
respondent Company which can have no control
over the manner of processing of application for
sanction by the Corporation cannot be blamed for
delay but during pendency of its
application for sanction, if the State
Government, in exercise of its rule making
power, amended the Building Rules
and imposed restrictions on the heights of
buildings on G.T. Road and other wards, such
settled expectation has been rendered impossible
of fulfillment due to change in law. The claim
based on the alleged vested right or settled
expectation cannot be set up against statutory
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provisions which were brought into force by the
State Government by amending the
Building Rules and not by the
Corporation against whom such vested right or
settled expectation is being sought to be enforced.
The vested right or settled expectation has been
nullified not only by the Corporation but also by
the State by amending the Building Rules.
Besides this, such a settled expectation
or the socalled vested right cannot
be countenanced against public interest and
convenience which are sought to be served by
amendment of the Building Rules and the
resolution of the Corporation
issued thereupon."
In Union of India v. Indian Charge Chrome [(1999) 7
SCC 314], yet again this Court emphasized : [SCC
p.327, para 17]
"The application has to be decided in accordance
with the law applicable on the date on which the
authority granting the registration is called upon
to apply its mind to the prayer for registration."
108. In S.B. International Ltd. v. Asstt. Director
General of Foreign Trade [(1996) 2 SCC
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
439], this Court repelled a contention that the
authorities cannot take advantage of their own wrong
viz. delay in issuing the advance licence, stating : [SCC
p.446, para 12]
"We have mentioned hereinbefore that issuance of
these licences is not a formality nor
a mere ministerial function but that it
requires due verification and formation of
satisfaction as to compliance with all the relevant
provisions."
[See also Kuldeep Singh v. Govt. NCT of Delhi [(2006)
5 SCC 702]"
The Apex Court in the above paragraphs viz. 106 to 108
clearly held that the application has to be decided in
accordance with law applicable on the date on
which the authority according to restriction is called
upon to apply its mind to the prayer of permission for
development. The above view is reiteration of law laid
down by the Apex Court in the case of T.Vijayalakshmi
[supra] and was held in paras 15 and 18 of the said decision
already reproduced in para 49 of the decision in the case of
the Chairman, Indore Vikas Pradhikaran [supra]. Therefore,
simply by taking recourse of subsection (4) of Section 29 of
the Act, 1976 in case if an application preferred seeking
permission for development is received by the concerned
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authority and no order is passed and communicated to the
applicant within 3 months from the receipt of such
application, deemed permission be granted, is answered
negatively. That law in existence and applicable on the date
on which the authority granting such permission apply its
mind, is to be made applicable since unless and until the
conditions precedent laid down in the statute for a right of
its enforcement at several stages stand fulfilled and satisfied,
in absence of no such vested right in the facts of theses
cases. Therefore, it is held that for application seeking
permission for development under Section 27 of
the Act, 1976 though received in accordance with
law as provided under Section 29 of the Act, 1976 remained
undecided or no order is passed within 3 months of the
receipt of such application, it cannot be said
that deemed permission for development is granted.
However, such applications are to be decided as expeditiously
as possible and within a reasonable time, depending on the
facts and circumstances of each case."
Whereby, in para 23 of the aforesaid judgment, this
Court has observed that the application seeking
development permission under Section 27 of the Act
though received in accordance with law as provided
under Section 29 of the Act remained undecided or no
order is passed within a period of three months on the
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receipt of such application, it cannot be said that deemed
permission for development is granted, however, such
application are to be decided as expeditiously as possible
within reasonable time depending on facts and
circumstances of each case, and this observation also
supports the case of the respondents. In the present
case, the respondent corporation has rejected the
application for development permission.
8.12 I found from the materials available on record
that the respondent No.4 has rightly rejected the
development permission by order dated 15.12.2020, which
is applied by the present petitioner and I found that
when the respondent corporation has taken the decision
after receipt of the application, the process of preparation
of the Town Planning Scheme is already in progress and
therefore, Section 49(1) of the Act gives the right to the
corporation to reject such application and I found that
there is no illegality and impropriety committed by
corporation at the best it can be said that some lethargy
on the part of the respondent corporation but it cannot
be said that the impugned decision of the corporation is
without any authority or without any basis in law or
C/SCA/4064/2021 CAV JUDGMENT DATED: 07/10/2022
against the principles of law and I found that the
impugned action cannot be considered arbitrary in nature
or against the provisions of the law. Therefore, I found
that there is no reason to interfere with the impugned
decision of the corporation by exercising the discretionary
powers conferred under Article 226 of the Constitution of
India and the present petitions are meritless and is
required to be dismissed.
9. In view of the above observations, the present
petitions are dismissed, with no order as to costs.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
