Gujarat High Court
Sureshbhai Ramjibhai Goyani vs State Of Gujarat on 12 October, 2022
Bench: Sandeep N. Bhatt
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15348 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 15348 of 2016
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 15348 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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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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SURESHBHAI RAMJIBHAI GOYANI & 16 other(s)
Versus
STATE OF GUJARAT & 9 other(s)
==========================================================
Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE with
MR VAIBHAV V GOSWAMY, ADVOCATE for the Petitioners
MS JYOTI BHATT, AGP
for the Respondents No. 1 & 2 - State Authorities
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
MR DHAVAL G NANAVATI, ADVOCATE
for the Respondents No. 4,5,6 - Surat Municipal Corporation
MR DHAVAL DAVE, SENIOR ADVOCATE with
MR RUTUL P DESAI, ADVOCATE
MR U I VYAS, ADVOCATE for the Respondent(s) No. 3
MR VIVEK V BHAMARE, ADVOCATE for the Respondent(s) No. 8 and 10
DS AFF.NOT FILED (N) for the Respondent(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/10/2022
CAV JUDGMENT
1.1 Initially, the main challenge in this petition is
made by the petitioners to :- (i) some of the provisions
of the Gujarat Town Planning and Urban Development
Act, 1976 and prayed to declare ultravires to the
Constitution of India; (ii) the Town Planning Scheme
No.16 (Kapodara), Surat as ultravires; and (iii) restrain
the Authorities concerned from evicting the petitioners
from their plots being part and parcel of Town Planning
Scheme No.16 (Kapodara), Surat.
1.2 It is noted that since the petitioners have
challenged the vires of the Act, the matter was initially
listed and heard by the Division Bench of this Court.
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The learned advocate for the petitioners, on instructions,
made a statement before the Division Bench of this
Court that the petitioners are no longer interested in
pursuing the reliefs claimed by which challenge was
made to the vires of the provisions of the Gujarat Town
Planning and Urban Development Act, 1976 and thereby
he did not press this petition qua challenge to vires. The
Division Bench of this Court has accepted the statement
and vide its order dated 21.01.2020 observed that " In
view of the above statement, this petition, now being
cognizable by the learned Single Judge may be listed
before the appropriate Court having jurisdiction to hear
such matters."
1.3 In view of above, the matter is listed before
this Court for hearing qua other prayers only.
Reliefs, as prayed for :
1.4 Thus, now the only prayers as prayed for by
the petitioners in this petition are as under :
"48(A) Be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate
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writ, order or direction and to declare that sections 40, 45,
48, 65, 68 and 69 of the Gujarat Town Planning and
Urban Development Act, 1976, are ultravires to the
Constitution of India; (Original Prayer - Not pressed)
(B) Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and to hold and declare that the Town
Planning Scheme No.16 - Kapodara, Surat City, is
ultravires; (Original Prayer)
(C) Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and to hold and declare that there is
error apparent in framing of the Town Planning Scheme
No.16 - Kapodara, by declaring said scheme as ultravires
to section 65 of the Gujarat Town Planning and Urban
Development Act, 1976, inasmuch as though holding the
sub-plots of survey nos.25/1 and 25/2 of village Kapodara
and permission to carry out construction have been given
as back as in 1984 i.e. prior to declaration of intention to
frame the scheme; (Original Prayer)
(C)1Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and to hold and declare that the Gujarat
Town Planning and Urban Development Act, 1976
(President Act No.27 of 1976) is ultravires to Part IX and
IX-A of the Constitution of India, 1950; (Amended Prayer)
(C)2Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and to hold and declare that the
provisions of the Gujarat Town Planning and Urban
Development Act, 1976, ceases to have any operation on
and from May 31, 1994 and any action taken under the
said Act thereof is ultavires and void ab initio;
(Amended Prayer)
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(C)3 Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and to hold and declare that sub-section
(3) of section 65 of the Gujarat Town Planning and Urban
Development Act, 1976 is ultravires as it amounts to
abdication of essential legislative function in favour of the
Executive; (Amended Prayer)
(D) Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and to hold and declare that the Town
Planning Scheme No. 16 - Kapodara, Surat City, is
ultravires since it is framed maliciously; (Original Prayer)
(E) Pending admission and final disposal of the present
petition; be pleased to restrain the respondents, their agents
and servants from evicting the petitioners from their plots
being part and parcel of Town Planning Scheme No.16 -
Kapodara, Surat City; (Original Prayer)
(F) Be pleased to pass such other and further orders as
may be deemed fit and proper." (Original Prayer)
Under the above circumstances, this Court has
heard the matter qua the prayers noted above only.
2. Heard Mr.Anshin Desai, learned senior
advocate with Mr.Vaibhav V. Goswamy, learned advocate
for the petitioners, Mr.Dhaval G. Nanavati, learned
advocate for respondents No.4 to 6 - Surat Municipal
Corporation, Mr. Dhaval Dave, learned senior advocate
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with Mr.Rutul P. Desai, learned advocate for contesting
respondent No.7, Ms. Jyoti Bhatt, learned AGP for
respondents No.1 and 2 - State Authorities, Mr. U.I.
Vyas, learned advocate for respondent No.3 and Mr.
Vivek Bhamre, learned advocate for respondents No.8
and 10, at length.
Factual & Legal submissions by the petitioners :
3.1 Mr.Anshin Desai, learned advocate for the
petitioners has submitted that the issue involved in the
present petition pertains to the Town Planning Scheme
No.16 (Kapodara), Surat ['the T.P. Scheme' for short].
3.2 He has submitted that the petitioners are
occupying the Final Plot No.42 admeasuring 1536 sq
mtrs., since the year 1984 and have their residential
houses at the said plot.
He has submitted that admittedly, the
respondents no.7 to 10 are in peaceful possession of the
Final Plots No.25 and 31.He has submitted that
respondents no.7 to 10 have accepted the possession of
the said final plot on paper only, after having full
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knowledge and being conscious of the fact of construction
of Residential houses on the same. A declaration dated
04.11.1996 as well as affidavit dated 04.11.1996 of
respondent no.7 - Balwant Jetha was also filed with
regard to the possession of Final Plot ('F.P.' for short)
no.42 has been taken by him. Said Balwant Jetha has
recognized the possession of the petitioners. Further, said
Balwant Jetha has also stated in his affidavit that he
has relinquished his right qua the part of the land,
which was in possession of the petitioners after receiving
consideration.
He has submitted that even the Zonal Officer,
Surat has, vide his communication dated 19.10.1996
pursuant to the communication dated 12.08.1996,
informed respondent no.7 - Balwant Jetha and Ganpat
Jetha, a brother of respondent no.7, about the occupation
of land by the Petitioners.
He has submitted that the T.P. Scheme is
fully implemented as far as the private respondents are
concerned.
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
3.3 He has further submitted that in view of the
declaration, affidavit and communication as well as
considering the official communication dated 19.10.1996,
once it is established that the possession of the Final
Plot No. 42 has been accepted along with the conscious
and express knowledge of the constructions thereto, the
Town Planning Scheme stands implemented. He has
submitted that the same amounts to implementation of
the Town Planning Scheme and once the same is done,
the Corporation/Appropriate Authority cannot act as an
agent of private parties to settle the private disputes.
3.4 He has submitted that once the possession of
the Final Plot is accepted by the allotees on 'as is where
is' basis, like in the instant case, the duty of the
Corporation/Appropriate Authority and its powers to
summarily evict as per Section 68 of the Act comes to
an end and cannot be invoked at the whims and fancies
of private persons.
3.5 Attention of this Court is invited by Mr.Anshin
Desai, learned senior advocate for the petitioners to some
relevant and vital facts that :-
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Land bearing Revenue survey no. 25/1 and
25/2 was purchased by Naran Madhav and Mulaji
Durlabh vide a registered sale deed from the original
owners namely Aminabibi and Rasulbibi on 23.08.1949
and Revenue Entry No.123 to that effect had been
mutated on 16.08.1950.
Vide Entry No.296 Revenue Survey No.24, 25/1
and 25/2 were inherited by Champak Hira being the
legal heir of Mulaji Durlabh pursuant to a partition.
On 15.10.1969, the said lands were mortgaged
to one Ambeta Vividh Karyakari Sahakari Mandli and
raised a loan. As the said loan was not repaid, the said
Mandli has organised an auction on 22.05.1981 and in
the auction process, the said lands were purchased by
the Society for a consideration of Rs.4,25,000/- and
Revenue Entry No.477 was mutated regarding the said
auction on 15.11.1983.
The petitioners have been granted development
permission for land bearing Survey No.25 was sanctioned
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by the Corporation for construction of the society on
dated 08.03.1984 and Raja Chitthi was also given for the
said land for the construction of the society i.e. Kamal
Park Cooperative Housing Society Ltd., ('the Society' for
short).
Entry No.477 was cancelled vide an order
dated 20.06.1986 in suo motu R.T.S. Case No.110 of
1984.
Pursuant to the notice issued by the
Corporation under Rule 33 of the Town Planning and
Urban Development Act, 1976 ('the Act' for short) for
transfer of possession, the Society gave a consent letter
to the Corporation on 02.06.1995 and not pointed out the
fact that the said land was in possession of the present
petitioners and not the original owners - Champak Hira.
The petitioners have also been granted non-
agricultural permission qua Final Plot No.42 on dated
30.12.2009 by the Authorities concerned.
The petitioners had been granted regularization
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permission vide order dated 09.10.2015. The said
permission came to be cancelled on dated 20.08.2016.
without even issuing notice to the petitioners.
On the very same day, the Surat Municipal
Corporation, Surat ('the Corporation' for short) had come
to the premises of the petitioners to demolish their
residential premises and under such peculiar
circumstances, the petitioners had to undertake to
handover the premises within a stipulated period under
the threat of losing their residential houses on the same
day.
It is on the very same date i.e., 20.08.2016,
the petitioners approached this Hon'ble Court by way of
Misc. Civil Application No.2357 of 2016 and pointed out
the fact that the order dated 21.09.2015 passed by this
Hon'ble Court in Special Civil Application No.17563 of
2015, seeking implementation of the said T.P.Scheme has
been passed without joining the present petitioners as a
party and the petitioners are the affected parties in the
said dispute. The said fact clearly shows the arbitrary,
biased, collusive and unconstitutional act by the
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Corporation as well as by the private respondents.
3.6 Mr.Anshin Desai, learned senior advocate for
the petitioners has submitted that the documents referred
to above such as the rajachitthi, non-agricultural use
permission, order of regularization as well as
communications and declarations by the petitioners are
undisputed or have otherwise only been subjected to bare
denial without there being any document or evidence on
record to controvert the same.
3.7 He has further submitted that in view of the
above dates, it becomes crystal clear that the
development permissions to the petitioners had been
granted way back in the year 1984, that too, before
submission of Draft Town Planning Scheme on date
29.05.1986 and its sanction on date 05.01.1987.
He has submitted that the above dates also
make it clear that pursuant to the auction sale dated
22.05.1981, Champak Hira (original owner) had no right
to hand over the possession of the Final Plot No. 42 by
way of communication dated 02.06.1995.
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3.8 He has submitted that respondent No.7 -
Balwant Jetha, to whom the land in question is allotted
by the Authority as per the final Town Planning
Scheme, has already relinquished his right from the land
in question as he was aware about the constructions on
the land in question put up by the petitioners and
therefore, he has stated on affidavit and declared about
the same. He has also stated that he has received the
money from the petitioners and he is waiving his right
in favour of the petitioners.
3.9 In support of the submissions, Mr.Anshin
Desai, learned senior advocate for the petitioners has
relied upon the following judgments :
i. AIR 1972 SC 793 - Municipal Corporation for Greater
Bombay and another vs The Advance Builders (India) Pvt.
Ltd., more particularly Paras : 5, 6, 10, 11, 12 and 13
thereof.
ii. 1975 Bom. LR 355 (SC) - Chandulal Vausdeo Vaidya vs
Nasik Municipal Borough, Nasik (Appeal No.266 of 1973),
more particularly Paras : 5, 6, 7, 8, 12, 21 to 28 thereof.
iii. 2009 SCC Online Bom 1262 - Prabhavanti Mulji Shah and
Anr. Vs Municipal Commissioner of Municipal Corporation
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of Greater Bombay, more particularly Paras : 14, 18, 19,
20 and 21 thereof.
iv. (2020) 9 SCC 356 - Hari Krishna Mandir Trust Vs State
of Maharashtra and Others, more particularly Paras : 50,
96, 100, 102 and 103 thereof.
v. (2013) 5 SCC 357 - Esha Ekta Apartments Co-operative
Housing Society Limited Versus Municipal Corporation Of
Mumbai
vi. (2010) 2 SCC 27 - Priyanka Estates International
Pvt.Ltd. Versus State Of Assam
vii. (1996) 6 SCC 464 - Ganapathi National Middle
School Versus M.Durai Kannan
viii. (2013) 5 SCC 336 - Dipak Kumar Mukherjee Versus
Kolkata Municipal Corporation
ix. AIR 1972 SC 1 - Naraindas versus Vallabhdas
x. 1975 ALLMR ONLINE 326 - Chandulal Vasudev Vaidya
versus Nasik Municipal Borough, Nasik
xi. 2009 SCC OnLine Bom 1262 - Prabhavanti Mulji Shah
versus Municipal Commissioner of Municipal Corporation
of Greater Mumbai
xii. AIR 1985 SC 613 - M/s. Babubhai and Co. versus State of
Gujarat
xiii. 2022 (0) AIJEL-HC 244145 - Nidhi Cooperative Housing
Society Ltd., versus State of Gujarat
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3.10 Mr. Anshin Desai, learned senior advocate for
the petitioners has submitted that even otherwise, in the
petition preferred by the petitioners, the respondents
cannot seek eviction of the present petitioners or
implementation of the Town Planning Scheme. He has
further submitted that the subject matter of the present
petition is not about the legal standing of the present
petitioners or unauthorized occupation of the land in
question by the petitioners.
3.11 He has further submitted that the law
regarding Article 300-A of the Constitution of India has
developed with various judicial pronouncements and now
the same is a fundamental right under Article 21 of the
Constitution of India. Even otherwise, in the instant
case, the respondents are being allotted two huge chunks
of Final Plots and cannot be said to be landless and
therefore, the role of the Corporation in the instant case
cannot be equated to that of a private contractor,
whereby the petitioners, who have been residing at the
Final Plot since more than three decades and have also
been issued possession receipts, which are sought to be
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evicted under the garb of implementation of T.P.Scheme.
3.12 He has submitted that this petition may be
allowed and the petitioners may be protected from
evicting his own lands in question.
Factual & Legal submissions by the Surat Municipal
Corporation :
4.1 Per contra, Mr.Dhaval Nanavati, learned
advocate for the Surat Municipal Corporation, Surat has
submitted that the Urban Development and Urban
Housing Department, Government of Gujarat has initially
approved and sanctioned the Preliminary Town Planning
Scheme No.16 (Kapodara), Surat in exercise of powers
conferred by sub section (3) of Section 65 of the Gujarat
Town Planning and Urban Development Act, 1976 on
16.09.1994 and thereafter, has finalised the same on
16.12.1997.
4.2 He has submitted that while approving and
sanctioning the T.P. Scheme Revenue Survey Nos.25/1
and 25/2 were allotted and given Original Plot Nos.31
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and 32 and said Original Plot Nos.31 and 32 were
allotted and given Final Plot No. 26 by the Government
in the year 1996. He has submitted that pertinently,
Final Plot No.42 is also carved out from Revenue Survey
Nos. 25/1 and 25/2, which was allotted to the private
respondents no.7 and 8.
of the T.P.Scheme was allotted and handed over the
physical possession to the Original Land Owners -
Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai and
Champakbhai, and they have given consent vide their
written consent dated July 22, 1996 and intimated to
hand over the possession of the Revenue Survey Nos.
25/1 and 25/2 in lieu of the Final Plot No.26 in the
T.P.Scheme to the original land owners.
4.4 He has submitted that one Kamal Park
Cooperative Housing Society Ltd., was framed, constituted
and developed on the said Final Plot No. 42 (Revenue
Survey No.25/1 and No.25/2).
4.5 He has submitted that while preparing,
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framing, approving and sanctioning the T.P. Scheme,
neither the original land owners - Champakbhai and
others nor the said Society - Kamal Park Cooperating
Housing Society Ltd., has objected to framing the T.P.
Scheme.
4.6 In support of his submissions, learned advocate
for the Corporation has relied upon the ratio so settled
in case of Municipal Corporation of Grater Mumbai
versus The Advance Builders (India) Private Limited
reported in (1971) 3 SCC 381 and in case of
Navinchandra Nanalal Kiklawala versus State of Gujarat
reported in (2005) 12 SCC 649 and in case of
Maggnajibhai Laljibhai Patel versus Ahmedabad Urban
Development Authority reported in (2010) SCC Online
(Guj) 1337.
4.7 He has submitted that the Authority has
issued various notices to the original land owners and
the Society. The original land owners and the society
have filed their reply to the same. Further, various
notices in exercise of powers conferred by Section 68 of
the Act, 1976 read with Rule 33 of the Gujarat Town
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Planning and Urban Development Rules, 1979 were
issued once after the Scheme become the part of the Act,
1976.
4.8 He has submitted that the Society has
purchased the Revenue Survey Nos.25/1 and 25/2 through
an auction proceedings held by the Debt Recovery Officer
in the Year 1981.
4.9 He has submitted that upon becoming part of
the Act, 1976, the Society has entered into a sale deed
on 17.01.1998 with Champakbhai Durlabhbhai,
Narsinhbhai Durlabhbhai and Hirabhai Durlabhbhai only
in the year 2006 and more particularly that too after
receiving sanction from the Government on 16.12.1997
when the Revenue Survey No. 25/1 and Revenue Survey
No. 25/2 loses their identity and converted into the Final
Plot.
4.10 He has submitted that the said Society has
execution a sale deed with the petitioners in the year
2008. However, the very Society has written a letter on
30.08.2010 to the Deputy Collector, Stamp Duty - 1,
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Surat to cancel the sale deed entered into with the
petitioners, which was dully terminated by the said
Authority and intimation to that effect has been
communicated to the T.P. Authority by the Society on
08.10.2010.
4.11 He has submitted that indeed, the Society
came into existence in the year 1981 - 1983 but has
executed sale deed with its erstwhile owners in the year
2006. Thereafter, the Society has executed sale deeds
with its members in the year 2006 (13.12.2006), which is
much after the T.P. Scheme has become the part of the
Act in the year 1998.
4.12 He has submitted that indisputably, the Society
has executed a sale deed with Champakbhai Hirabhai
Patel and others in the year 2006 i.e. on 13.12.2006,
when Revenue Survey Nos. 25/1 and 25/2 loose its
identity and has become a separate Final Plot No. 42
into the final T.P. Scheme as per the rights settled by
the Town Planning Officer. He has submitted that
therefore, the Society has entered into the shoes of the
original land owners qua Revenue Survey Numbers 25/1
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and 25/2, which is admitted in the reply of the Society
dated 04.10.2010, in response to the notices dated
13.07.2010 and 25.07.2010 issued by the Authorities.
Thus, said Champakbhai Hirabhai Patel and others have
given written consent on 02.06.1995, which is binding
upon the Society and its members, inclusive of future
members, who have purchased the plots initially or after
formation of the Society. At this stage, he has submitted
that pursuant to the notices issued by the Authorities,
the petitioners have not replied any notice, therefore, he
has relied upon the ratio laid down in the case of
Babulal Badriprasad Verma versus Surat Municipal
Corporation reported in (2008) 12 SCC 401 and has
submitted that under these circumstances, it is presumed
that the parties have waived their statutory rights to
respond and accepted the contents of the notice. He has
submitted that the Society vide letter dated 02.06.1995,
01.08.1996 and 04.10.2010 replied and responded to the
notices and gave an undertaking and assurance to vacate
the Final Plot No.42, but the Society (in turn their
members i.e. the petitioners) has not vacated the same.
4.13 He has submitted that so far as Final Plot
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No. 42 is concerned, which was carved out from Revenue
Survey No. 25/1 and 25/2, which was originally owned by
Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai and
Champakbhai, at the time of preparing and framing the
Town Planning Scheme. He has submitted that at no
point of time, said Narsinhbhai Durlabhbhai, Hirabhai
Durlabhbhai and Champakbhai have objected / resisted
the carving of Final Plot No. 42 from Revenue Survey
No. 25/1 and 25/2. Even the original land owners in
response to statutory notice given written consent to
hand over the land area to the Authority to implement
the scheme. He has submitted that even thereafter in
the year 2006 also, neither of the members of the
Society have questioned nor challenged the approved /
sanctioned T.P. Scheme and have shifted to the Final
Plot No. 26. Thus, T.P. Scheme has become the part of
the Act. In support of his submissions, he has relied
upon the ratio laid down in case of Kanjibhai Dahyabhai
Masattar versus State of Gujarat reported in (2005) 2
GLR 1649 and in case of Kashiben WD/O Pitamber
Devchand and another versus State of Gujarat reported
in (1989) 2 GLR 1176. He has submitted that the
petitioners have no locus to question or challenge the
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T.P. Scheme, as they are neither owners of the land or
Society has recolonized them as members as per
communication dated 08.10.2010.
4.14 He has submitted that the petitioners, who
became the members of the respective sub-plots of the
Society, which are purchased by them only in the year
2008 i.e. much after the T.P.Scheme is finalized and
became part of the Act in the year 1998. He has
submitted that the very society has requested for
cancelling the sale deed and the said sale deeds were
terminated by the Deputy Collector, Stamp Duty - 1,
Surat and intimated to the Authority by the Society on
08.10.2010. At this stage, learned advocate for the
Corporation has relied upon the ratio laid down in case
of Ramanbhai Hargovindbhai Limbachiya versus State of
Gujarat reported in 2016 (3) GLR 2695. He has
submitted that even otherwise, the petitioners have
purchased the land after sanction of the final T.P.
Scheme. He has submitted that therefore, neither the
Society nor the petitioners have legal and valid title
over the Revenue Survey Nos.25/1 and 25/2, as it is
already converted and allotted to the private respondents
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no. 7 and 8.
4.15 He has submitted that since the T.P. Scheme
has become the part of the Act on 16.12.1997 and came
into effect on 17.01.1998 and once the original land
owners Narsinhbhai Durlabhbhai, Hirabhai Durlabhbhai
and Champakbhai have given written consent to hand
over the physical possession of the Revenue Survey No.
25/1 and 25/2, and majority members of the Society have
moved and shifted to the Final Plot No. 26, which was
allotted and given in lieu of the aforesaid Revenue
Survey Numbers, the petitioners have no legal right to
continue and stay over the land in question on two
counts; (i) the petitioners are not affected by
implementation of the T.P. Scheme, as they are not the
rightful owners owned the land in question and (ii) the
sale deeds executed in favour of the petitioners were
terminated by the Deputy Collector, Stamp Duty - 1,
Surat, which was admittedly informed to the Authority
by the Society.
4.16 He has submitted that the petitioners are fully
aware of the fact that they became members of the
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Society by the sale deed only in the year 2008
(31.08.2008) i.e. much after preliminary T.P.Scheme was
sanctioned (which is in the year 1997-1998), which was
terminated by the Authorities concerned and that the the
original land owners, who have admittedly given written
consent to hand over the physical possession of Revenue
Survey No. 25/1 and 25/2 - now Final Plot No. 42,
couple with the further admitted fact that the sale deed
executed by the society in favour of the petitioners were
terminated by the Deputy collector, Stamp duty - 1,
Surat on insistence of the Society, the petitioners cannot
take any different or independent stand other than stand
taken by their predecessors in title and therefore, the
petitioners cannot challenge the T.P.Scheme.
4.17 He has submitted that the Authority has given
personal hearing to the petitioners and to the Society as
well and thereby followed the principles of natural
justice.
4.18 He has further submitted that the Society has
purchased the land in question in the year 1981, but
executed the sale deed in the year 2006. The
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Government has sanctioned the T.P.Scheme in the year
1997 which came into force w.e.f. 17.01.1998. Therefore,
as per the ratio laid down in the case of Ramanbhai
Hargovindbhai Limbachiya versus State of Gujarat
reported in 2016 (3) GLR 2695, the Society has no legal
valid title and since the Society has no legal valid title
of the land in question, then how the Society can
executed the sale deed in favour of the petitioners.
Further, upon the request of the Society itself, the
Authority has terminated the sale deeds executed by the
Society in favour of the petitioners and the petitioners
are aware about this fact, which is suppressed by the
petitioner before this Court.
4.19 He has submitted that after the order dated
22.01.2016 passed in Special Civil Application No.17563
of 2015, the petitioners have preferred Misc. Civil
Application No.2367 of 2016 and this Court, while
adopting and accepting the averments and arguments
canvassed by the petitioners, has directed the Authority
vide order dated 22.08.2016 to hear all the affected
parties and pass reasoned order in view of the ratio laid
down in M/s. Babulal and Co. versus State of Gujarat
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reported in AIR 1985 SC, which is accepted by the
petitioners and has not challenged before higher forum.
Thus, the said order dated 22.08.2016 has attained
finality.
4.20 He has submitted that before Authority could
execute the order dated 22.08.2016 passed by this Court
in Misc. Civil Application No. 2367 of 2016, the
petitioners have preferred and filed the present petition
challenging the vires of certain provisions of the Gujarat
Town Planning and Urban Development Act, 1976.
4.21 He has submitted that as per the directions
issued by this Court vide order dated 22.08.2016, the
Authority has accorded personal hearing to all the
affected parties by the T.P.Scheme and passed detail
reasoned order dated 23.12.2016 and served copy to all
the affected parties. The said order dated 23.12.2016 was
challenged by the petitioners before this Court by filing
Civil Application No.13577 of 2016 (New numbered as
Civil Application No. 3 of 2016) and since the detail
reasoned order dated 23.12.2016 passed under Section 68
of the Act, 1976 read with Rule 33 of the Rules, 1979
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and vires of provisions of said sections are under
challenge, this Court has stayed the implementation and
execution of said order dated 23.12.2016 passed by the
Authorities vide order dated 27.12.2016.
4.22 He has submitted that the T.P.Scheme is
finalised and the Final Plot No.42 was allotted to the
private respondents No.7 and 8, them have made
representations dated 29.06.2010, 02.08.2010 and
25.08.2010 before the concerned authorities to hand over
the vacant and peaceful physical possession of Final Plot
No.42. He has submitted that the said respondent no.7
and 8 have also preferred a petition before this Court
seeking implementation of the sanctioned T.P. Scheme
and this Court has, vide order dated 22.01.2016, directed
the Authority to implement the same latest by
30.06.2016.
4.23 He has submitted that pursuant to the said
order dated 22.01.2016, the Authority has issued notice
under Section 68 of the Act read with Rule 33 of the
Rules on 25.07.2016 to the petitioners and other
members of the Society show causing them to vacate the
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Final Plot No. 42 as per the sanctioned T.P.Scheme. He
has submitted that in response to the said notice dated
25.07.2016, the petitioners have given and submitted an
undertaking with open eyes and sound mind before the
Authority to vacate the Final Plot No. 42 within six (6)
days and hand over the vacant and peaceful possession
of the same.
4.24 He has submitted that knowing fully aware
that construction put up and carried out on Revenue
Survey No. 25/1 and Revenue Survey No. 25/2 (Final
Plot No. 42) is completely unauthorized and without any
permission or authority of law, the petitioners have
applied on 20.08.2016 for regularization of said
unauthorized construction in exercise of powers conferred
under Section 5 of the Gujarat Regularization of
Unauthorized Development Act, 2011 for regularizing the
said construction. The concerned Authority has rejected
the application to regularize the said unauthorised
construction standing on Final Plot No. 42. The
petitioners have challenged the said rejection order before
the Appellate Authority, but the Appellate Authority has
not granted stay.
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4.25 He has submitted that in view of above facts
and circumstances of the case and ratio laid down by
the various Courts, the present petition may be
dismissed.
Factual & Legal submissions by the State Government :
5.1 Per contra, Ms.Jyoti Bhatt, learned AGP for
the respondent - State Authorities has adopted most of
the submissions made by learned advocate for the Surat
Municipal Corporation.
5.2 She has submitted that the petitioners have no
legal right of protection.
5.3 She has submitted that the State Government
by its Urban Development and Urban Housing
Department has approved and sanctioned the Preliminary
Town Planning Scheme No.16 (Kapodara), Surat in
exercise of powers conferred by sub section (3) of Section
65 of the Gujarat Town Planning and Urban
Development Act, 1976 on 16.09.1994 and thereafter, has
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finalised the same on 16.12.1997. She has submitted that
while approving and sanctioning the T.P. Scheme
Revenue Survey Nos.25/1 and 25/2 were allotted and
given Original Plot Nos.31 and 32 and said Original Plot
Nos.31 and 32 were allotted and given Final Plot No. 26
by the Government in the year 1996. He has submitted
that pertinently, Final Plot No.42 is also carved out from
Revenue Survey Nos. 25/1 and 25/2, which was allotted
to the private respondents no.7 and 8.
5.4 She has submitted that the averments made in
the petition are vague, baseless and without any
substance, because no particulars of violation of which
legal, fundamental and/or constitutional rights, which are
guaranteed is infringed, how it was infringed and what
manner it was infringed, have not been specified by the
petitioners.
5.5 She has submitted that whether the averments
made and contentions raised in the petition are true or
false, will have to be examined by considering the
material on record. She has submitted that in view of
the facts of this case, which arose disputed question of
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facts and besides this, the petitioners has approached
this Court with unclean hands, unclean heart and
unclean objected with a view to abuse the process of law
and faith imposed upon the petitioners by this Court,
the kindness and liberty shown was misused by the
petitioners. Therefore, this petition deserves to be
dismissed, since none of the above tests stands satisfied
by the petitioners. In support of her submissions, she
has relied upon the decisions of the Hon'ble Apex Court
in the case of General Manager, Haryana Roadways
versus Jai Bhagwan reported in (2008) 4 SCC 127 and
in the case of Union of India versus Shantirajan Sarka
reported in (2009) 3 SCC 90 and has submitted that
suppression of facts viewed seriously and exemplary cost
may be imposed. She has submitted that even as a
general rule, suppression of material fact by a litigant
disqualify such litigant from obtaining any relief. She
has submitted that there are catena of judgments of the
Hon'ble Apex Court wherein it is held that before
granting any mandatory relief in favour of the petitioner,
who has approached the Court with unclean hands, the
Court has to consider the conduct and attitude /
approach adopted by the petitioner before granting any
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mandatory or equitable relief.
5.6 She has further submitted that the petitioners
have violated the law and breached the conditions of the
development permission themselves and claiming negative
equality, which is otherwise not available in view of
settled legal position.
5.7 She has also submitted that ultimately, the
T.P.Scheme in question is for the public purpose and is
not becomes the part of the Act since long i.e. before
entering into the transaction by the petitioners. She has
submitted that other members of the Society has already
been transferred from the land in question to the
allotted land. Only the petitioners remain and they are
creating hurdles by one way or the other. She has
submitted that since the T.P.Scheme has come the part
of the Act, the role of the Government is very limited.
5.8 She has submitted that in view of the facts
and circumstances of the case, the present petition may
be dismissed with cost.
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Factual & Legal submissions by the Private Respondent -
Respondent No.7 :
6.1 Per contra, Mr.Dhaval Dave, learned senior
advocate with Mr.Rutul Desai, learned advocate for
respondent no.7 - private respondent has vehemently
opposed this petition as they are the affected parties.
6.2 He has submitted that the land of the
Respondent no.7 being the co-owner of land bearing
revenue survey no.23/paiki was included in the said T.P.
Scheme. He has submitted that in the Preliminary Town
Planning Scheme, the Respondent no.7 along with its co-
owner i.e. the erstwhile owner of Respondent nos.8 to 10
were given original plot nos.30 & 42 and in lieu thereof,
3 final plots being Final Plot no.25 admeasuring 14684
sq. mtrs, Final Plot no.31 admeasuring 29728 sq. mtrs
and Final Plot no.42 admeasuring 1536 sq. mtrs., came
to be allotted in the Preliminary Town Planning Scheme.
He has further submitted that the said preliminary Town
Planning Scheme, came to be sanctioned u/s.65(3) of the
Act, 1976 on 16.9.1994.
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6.3 he has submitted that admittedly, the
possession of the original plot of the land Co-owned by
the respondent no.7 with the erstwhile owner of whose
heirs are respondent nos.8 to 10 came to be handed over
to the appropriate authority and in lieu thereof, the
possession of only Final Plot nos.25 and 31 came to be
handed over, whereas, the peaceful and vacant possession
of Final Plot no.42 was not handed over due to the
unauthorized occupation and illegal construction by the
petitioners on the portion of the land from which, the
Final Plot no.42 came to be carved out for the purpose
of allotment to the respondent no.7 and erstwhile owner
of the respondent nos.8 to 10.
6.4 He has submitted that it is the statutory
obligation on the part of the respondent - Corporation to
implement the sanctioned T.P. Scheme and thereby to
handover the peaceful and vacant possession of Final
Plot no.42 to the respondent no.7 and respondent nos.8
to 10 (being heirs of Rajeshbhai Balvantbhai Patel).
6.5 He has submitted that the Kamal Park
Cooperative Housing Society Ltd., where the petitioners
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are the members and from whom the petitioners have
purchased the land in question, is not joined as a party
nor the petition is filed by the said Society. He has
further submitted that the said Society has already been
handed over Final Plot no.26 in the said sanctioned
preliminary T.P. Scheme. He has also submitted that the
said Society itself has informed the Corporation vide its
communication dated 08.09.2010 that through oversight,
the Society has executed the sale deed with regard to
the land forming part of Final Plot no.42 with the
different owners and have requested the competent
authority to cancel the registration of the said
documents. He has submitted that pursuant to the
admission on the part of the Society, the petitioners
have no right, title or interest qua the portion of the
land forming part of Final Plot no.42 since the same
belongs to the respondent no.7 and respondent nos.8 to
10, who are being allotted the Final Plot no.42 in the
sanctioned preliminary T.P.Scheme.
6.6 He has submitted that the petitioners have
purchased the different plots on or around the year
2008. He has submitted that if the same is taken on the
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face of it, it is an admitted position that the preliminary
T.P. Scheme came to be sanctioned by the Government
on 16.9.1994. He has submitted that the petitioners have
purchased the said plots with open eyes and therefore,
they cannot be termed to be a bonafide purchasers. At
this stage, in support of his submissions, he has relied
upon the ratio laid down in the case of Ramanbhai
Hargovinddas Limbachiya V/s. State of Gujarat reported
in 2016(3) GLR 2695, wherein it is held that the persons
who have purchased the land after sanctioning of the
Town Planning Scheme, have no locus to raise any
objection with regard to the said Town Planning Scheme.
6.7 He has submitted that respondent no.7
preferred a petition being SCA No.17563 of 2015 before
this Court seeking relief to direct the respondent -
Corporation to implement the T.P. Scheme qua the Final
Plot No.42. He has submitted that this Court has, vide
order dated 22.01.2016, was pleased to direct the
respondent - Corporation to implement the said
T.P.Scheme qua the Final Plot no.42. He has submitted
that accordingly, the respondent corporation has issued
notice to the petitioners and pursuant to the said notice,
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the petitioners, vide undertaking dated 20.8.2016,
undertook to vacate the land and handover the peaceful
possession within a period of 6 days. He has submitted
that in spite of the said undertaking, the petitioners
have failed to abide by the said undertaking and
preferred Misc. Civil Application No.2357 of 2016 in
Special Civil Application No.17563 of 2015, praying for
review/recall of order dated 22.01.2016, wherein this
Court was pleased to not entertain the said MCA and
was pleased to direct the respondent - Corporation to
implement the T.P. Scheme in question, after giving
opportunity of hearing to all the parties. He has
submitted that in view of above, the order dated
22.01.2016 has attained finality.
6.8 He has submitted that in light of the above
sequence, the present petition seeking relief as regards
challenging the validity of the Town Planning Scheme
no.16 (Kapodara) is totally untenable and required to be
dismissed.
6.9 He has submitted that right from the draft
stage till the stage of final Town Planning Scheme, the
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respondent - Corporation has invited the objections and
suggestions from all the concern with regard to the
Town Planning Scheme no.16 (Kapodara) is concerned.
However, the petitioners have never submitted any
response to the Corporation. He has submitted that
having failed to raise any objection at the relevant point
of time, the petitioners are not entitled to make any
challenge or grievance with regard to the sanctioned T.P.
Scheme since the right if at all accrued, the same has
been waived by the petitioners by their conduct on
account of principle of waiver and estoppel as observed
by the Honourable Supreme Court of India in the case
of Babulal Badri Prasad Verma versus Surat Municipal
Corporation reported in 2008 (12) SCC 401.
6.10 He has submitted that since the petitioners
have given up the challenge to the validity of the
provisions of the act, 1976, now if the pleadings of the
petition are seen along with the left-out prayer i.e.
prayer 48(B) & 48(C), there are no pleadings or an iota
of averments as to which are the inconsistencies or
transgression as regards the T.P. Scheme is concerned.
He has submitted that in absence thereof, it is settled
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position of law that the sanctioned Town Planning
Scheme, acquires the status of a statute and such
scheme cannot be subject matter of a writ proceeding
unless there is transgression of jurisdiction or the
scheme is totally inconsistent with the Act. He has
submitted that the petitioners have failed to point out
any transgression of jurisdiction or inconsistency. In
support of his submissions, he has relied upon the
judgment of the Division Bench of our High Court in the
case of Chhaganbhai Motibhai Bhoi and others V/s.
Anand Area Development Authority reported in 1989 (2)
GLH 488.
6.11 He has submitted that after the order dated
22.08.2016 passed in MCA No.2357 of 2016 in SCA
No.17563 of 2015, the Corporation again issued notices u/
s.68 r/w.33 of the Act, 1976 to the petitioners on
31.08.2016 and after giving proper opportunity of hearing
to the petitioners, the Corporation has rejected the
objections and has passed the detailed order dated
23.12.2016 directing the petitioners to vacate and
handover the vacant possession qua the land forming
part of Final Plot No.42. He has submitted that the said
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order is not a part of any challenge in the present
petition nor any prayers are sought in this regard. He
has submitted that in absence thereof, the petitioners are
not entitled to any relief as prayed for in the present
petition.
6.12 He has submitted that the respondent -
Corporation is under statutory obligation to implement
the Town Planning Scheme No.16 (Kapodara), Surat in
light of the order passed by this Court dated 22.01.2016
as well as the further order passed in MCA No.2357 of
2016 along with the fact that the procedure as
contemplated under the Act, 1976 is followed.
6.13 He has submitted that the argument advanced
by the petitioners as regards the judgment of the
Honourable Supreme Court of India in the case of
Advance Builders Pvt. Ltd. (supra) contending that the
respondent - Corporation can implement the Scheme only
when the same is to be for the public purpose and not
for a private purpose i.e. for the purpose of handing over
the possession of Final Plot No.42 to the private
respondents, is totally misconceived in as much as the
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ratio laid down by the Honourable Supreme Court in
that judgment, it clearly lays down a law directing the
Appropriate Authority to implement the Town Planning
Scheme as there being a statutory obligation and a duty
cast upon the said Authority to implement the Scheme.
He has submitted that in fact, the said judgment itself,
issued direction to the Authority to remove the sheds,
studs, unauthorized structures standing on the lands of
the private respondents, who were allotted to the Final
Plot.
6.14 He has submitted that further, even this
Honourable Court in the case of Snehanjali Cooperative
Housing Society through its Chairman V.s. State of
Gujarat reported in 2007 (1) GCD 806 relying upon the
ratio laid down in the case of Advance Builders Pvt.
Ltd., (supra), was pleased to direct the Authority to
implement the Town Planning Scheme and thereby,
handover the peaceful and vacant possession by
demolishing the illegal and unauthorized construction on
the land which is allotted to some other person for the
effective implementation of the Town Planning Scheme,
being the consequences must follow. He has further
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submitted that the said judgment passed in Snehanjali
Cooperativfe Housing Society (supra) is confirmed upto
the Honourable Supreme Court of India and therefore,
the proposition of law as canvassed by the petitioners as
regards the ratio laid down by the Honourable Supreme
Court in the case of Advance Builders Pvgt. Ltd., (supra)
is totally misconceived and not the correct proposition of
law which is laid down by the Honourable Supreme
Court of India in the said case.
6.15 He has relied upon the following judgments in
support of his submissions :
(i) 2016 AIJEL_HC 234988 - Rajeshbhai
Vitthalbhai Sardhara versus State of Gujarat
(ii) (2004) 2 SCC 130 - Teri Oat Estates (P) Ltd.
versus U.T., Chandigarh
(iii) 1989 (2) GLH 246 - Kashiberi wd./o Pitambar
Devchaiiel versus State of Gujarat
(iv) (2015) 16 SCC 787 - Yellapu Uma Maheswari
versus Buddha Jagadheeswararao
(v) 2016 (3) GLR 2695 - Ramanbhai
Hargovinddas Limbachia versus State of
Gujarat
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(vi) 2004 (7) GHJ 127 - Amarsinh Shanaji
Thakore versus State of Gujarat
(vii) 1996 (2) GLH 287 - Shilpa Park Cooperative
Housing Society Ltd. versus Surat Urban
Development Authority
6.16 He has submitted that in view of above facts
and circumstances as well as legal position, the present
petition may be dismissed.
Rejoinder by the Petitioners :
7.1 In rejoinder, Mr.Anshin Desai, learned senior
advocate for the petitioners has submitted that the
judgments sought to be relied upon by the present
respondents are not applicable to the facts of the instant
case in as much as in none of the propositions of law
the possession was accepted on 'as is where is' basis.
7.2 He has further submitted that the said
pronouncements are applicable to the set of facts
whereby the construction is undisputably unauthorized,
on a public premise under the scheme and further is in
the nature of temporary structures i.e. huts, sheds, and
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other establishments. Whereas, in the instant case, the
petitioners have been granted development permission for
construction of the society way back on dated 08.03.1984
and the construction of the society i.e. Kamal Park
Cooperative Housing Society Ltd., is undertaken pursuant
to grant of said permission.
Reply by the Private Respondent to the Rejoinder of the
Petitioners :
8.1 He has submitted that with regard to the
reliance placed by the petitioners on the documents -
alleged declaration to have been given by the predecessor
in title of the respondent nos.8 to 10 is concerned, it is
totally fallacious and the same is required to be not
entertained as none of the said documents bears the
signature of the Respondent no.7, who is admittedly, the
co-owner of the original plot and co-allotee of the final
plot no.42. He has submitted that the said documents
are strongly disputed by the Respondent no.7 as well as
even by the respondent nos.8 to 10 being heirs of
erstwhile owner. He has submitted that in light of the
said documents being disputed, the petitioners are
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seeking any equitable relief under Article 226 of the
constitution of India, which may not be granted in as
much as the said are the disputed questions of fact and
as per the settled position of law, the admissibility of
the said documents cannot be looked into in a writ
jurisdiction being a disputed question of fact. He has
submitted that respondent no.7, in its affidavit, has
disputed the said document apart from the fact that the
said documents are not even signed by the Respondent
no.7 and thus not binding.
8.2 He has further submitted that it is further
fortified with the fact that even respondent - Corporation
itself is stating that the T.P. Scheme, qua Final Plot
No.42, is yet not implemented, and therefore the question
of accepting the possession by respondent no.7 and the
respondent nos.8 to 10, on 'as is where is' basis, does
not arise at all. He has submitted that the said
argument is totally misconceived.
8.3 He has submitted that he has denied the
contentions raised by the petitioners qua the alleged
communication dated 19.10.1996 to the Respondent no.7
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and his brother i.e. the erstwhile owners of the
Respondent nos.8 to 10. He has submitted that no such
communication was ever served upon to the Respondent
no.7. He has further submitted that the said
communication itself calls upon the Respondent nos.7 and
8 to accept the possession on 'as is where is' basis,
which was not acted upon and therefore, the reliance put
forth on the said communication is of no consequence.
He has submitted that even otherwise, the same does
not appears to be a correct position in as much as the
respondent - Corporation in its last affidavit and even
before this Court in SCA No.16563 of 2015 has accepted
the fact that the T.P.Scheme, qua Final Plot No.42, is
yet not implemented and therefore, he has submitted
that the reliance put forth on the communication is
totally misconceived.
9. On being asked, learned advocates for the
respective parties have stated that they do not have any
other submissions, including legal submissions, to canvass
in this matter.
10. After hearing the submissions made by the
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learned advocates for the respective parties and
considering the material on record, the following issue is
involved in the present petition for determination.
ISSUE FOR DETERMINATION :
In view of the facts of this case noted above, the
issue before this Court is in narrow compass as to :-
Whether the petitioners can hold the possession of
the land in question i.e. Final Plot No.42 admeasuring
1536 sq.mtrs., that too without any legal right, pursuant
to the sanctioned and finalisation of the Town Planning
Scheme No.16 (Kapodara), Surat by the Government
since it has become the Act.
FINDINGS BY THE COURT :
11. Considering the facts and circumstances of the
case, as mentioned by the learned advocates for the
respective parties, the picture which has emerged before
this Court is as under :
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11.1 Land bearing Revenue Survey Nos. 25/1 and
25/2 were purchased by Naran Madhav and Mulaji
Durlabh vide a registered sale deed from the original
owners viz., Aminabibi and Rasulbibi on 23.08.1949 and
Revenue Entry No.123 to that effect had been mutated
on 16.08.1950.
11.2 Vide Entry No.296 Revenue Survey No.24, 25/1
and 25/2 were inherited by Champak Hira being the
legal heir of Mulaji Durlabh pursuant to a partition.
11.3 On 15.10.1969, the said lands were mortgaged
to one Ambeta Vividh Karyakari Sahakari Mandali and
raised a loan.
11.4 As the said loan was not repaid, the said
Mandali has organised an auction on 22.05.1981.
11.5 In the auction process, the said lands were
purchased by the Kamal Park Cooperative Housing
Society Ltd., by paying a consideration of Rs.4,25,000/-
and Revenue Entry No.477 to that effect was mutated on
15.11.1983.
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11.6 The petitioners have been granted development
permission for land bearing Survey No.25, which was
sanctioned by the Corporation for construction of the
Society on dated 08.03.1984 and Raja Chitthi was also
given for the said land for the construction of the society
i.e. Kamal Park Cooperative Housing Society Ltd., ('the
Society' for short).
11.7 On 21.02.1985, the Authority i.e. Surat
Municipal Corporation has declared its intention under
Section 41 of the Act, 1976 to frame the Town Planning
Scheme No.16 (Kapodara), Surat and followed the process
under Section 41 of the Act.
11.8 Entry No.477 was cancelled vide an order
dated 20.06.1987 in suo motu R.T.S. Case No.110 of
1984 and thereby cancelled the name of the Society and
entered the name of original land owners in the revenue
record. However, the Society has kept possession of the
land in question with it.
11.9 The Corporation has framed the Draft Town
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Planning Scheme in question under the Act and has
invited the objections from the interested and affected
persons under Section 47 of the Act.
It is noted that at that relevant point of time,
neither the erstwhile owners nor the Society has raised
any objection qua the land in question before the
concerned Authority.
11.10 The land of respondent No.7 (private
respondent herein) being the co-owner of the land be-
daring Revenue Survey No.23/p was included in the said
T.P. Scheme and in the Preliminary T.P.Scheme,
respondent No.7, along with its co-owner i.e. the
erstwhile owner of respondent Nos.8 to 10 were given
Original Plot Nos.30 and 42 and in lieu thereof, three
Final Plots being Final Plot No.25 admeasuring 14684
sq.mtrs., Final Plot No.31 admeasuring 29728 sq.mtrs.
and Final Plot No.42 admeasuring 1536 sq.mtrs., came to
be allotted. It is this Final Plot No.42 admeasuring 1536
sq.mtrs., which possesses by the petitioners.
11.11 The Corporation has sanctioned development
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plan and issued Rajachitthi to the Society.
11.12 The said Preliminary Town Planning Scheme
No.16 (Kapodara), Surat was approved and sanctioned by
the Government, through the Urban Development and
Urban Housing Department on 16.09.1994, in exercise of
powers conferred by Sub-Section 3 of Section 65 of the
Gujarat Town Planning and Urban Development Act,
1976.
11.13 It is noted that the land in question i.e. Final
Plot No.42, which is carved out from land bearing
Survey No.25/1 and 25/3, which was originally belonging
to Narsibhai Durlabhbhai and Champakbhai Hirabhai
Durlabhbhai, is allotted to Respondent No.7 - Ganpat
Jetha by the Authority pursuant to the T.P.Scheme.
11.14 Pursuant to the notice issued by the
Corporation under Rule 33 of the Town Planning and
Urban Development Act, 1976 ('the Act' for short) for
transfer of possession, the Society gave a consent letter
to the Corporation on 02.06.1995, but not pointed out the
fact that the said land was in possession of the present
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petitioners and not the original owners - Champak Hira.
11.15 The Corporation has issued notice to the
petitioner/s under Section 67 of the Act for change of
possession as per the sanctioned preliminary town
planning scheme on 02.06.1995.
11.16 It is noted that the original land owners as
well as the Society, both are ready and willing to give
up the lands pursuant to the sanctioned preliminary
town planning scheme.
11.17 The Corporation has given the notice to the
petitioners of the land in question on 22.07.1996 and the
occupiers - the petitioner/s has replied to it on
01.08.1996.
11.18 The father of respondent No.7 - Balvant Jetha
and his son Nimish Balvant, both have relinquished their
right over the land in question by way of an affidavit
and made a declaration to that effect on 04.11.1996 and
on 04.06.1999, wherein it is clearly stated by him that
at the time of allotting the land in question to them,
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
there were constructions and the petitioners were in
possession of that constructions and further that Balvant
Jetha has received consideration from the petitioners and
now he has no right over the land in question. It seems
that the petitioners have again paid extra money to said
Balvant Jetha, who is respondent No.7 herein, to save
their constructions on the land which are standing before
the formation of the T.P.Scheme. However, the said
contention was rebutted by the respondent No.7 in his
reply as noted above and the petitioners are failed to
produce further concrete proof for the same. Further,
since it is a disputed question of fact, this Court is
restraining the scope of the petition and therefore, this
Court has not stretched it any further.
11.19 The Government has already approved,
sanctioned and finalised the Town Planning Scheme
No.16 (Kapodara), Surat on 16.12.1997 and it came into
effect from 17.01.1998 and it has become the part of the
Act in view of Section 65 of the Act.
11.20 It is noted that the petitioner/s has not
purchased any part of the land by way of any sale deed
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till the finalisation of the T.P.Scheme.
11.21 It is very surprising that the Society has
entered into the transactions and executed various sale
deeds with the petitioners after almost 8-9 years of
finalisation of the T.P.Scheme.
11.22 Since the sale proceedings between the Society
and the original land owner - Champak Hira was
cancelled in RTS proceedings and the name of the
original land owner has come on record but the
possession was with the Society, the original land owner
- Champak Hira has again sold the land in question to
the Society on 14.12.2006 by way of a registered sale
deed. Thus, again the Society has title over the land in
question.
11.23 Though having knowledge of the fact that the
T.P.Scheme has become final & has become part of the
Act, the petitioner - Sureshabhi Ramjibhai Goyani and
others have purchased the land in question from the
Society by way of registered sale deeds during the year
2006 to 2008 and paid the sale consideration to the
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Society. It is noted that the petitioners were in
possession of the land in question before the sale deeds.
11.24 The Society has applied to the concerned
Authority - Deputy Collector, Stamp Duty-1, Surat to
cancel the sale deeds and accepted that inadvertently,
sale deeds have been executed by it. Therefore, the
Authority has cancelled the sale deeds executed by the
Society after finalisation of the T.P.Scheme.
11.25 It is noted that the Society has rectified its
error which is made by it by executing the sale deeds
with the petitioners after the finalisation of the
T.P.Scheme.
11.26 Thus, it is clear that again the land in
question has gone with the original land owners and the
original land owners have shown their willingness to the
Corporation to hand over the vacant and peaceful
possession of the land in question .
11.27 It is also noted that except the petitioners,
other persons have already vacated the possession on the
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land pursuant to the final T.P.Scheme.
11.28 The Corporation has issued various notices to
the petitioner/s, Society, original land owners and
occupiers of the land in question and gave personal
hearing to them and thereby followed the principles of
natural justice. The petitioner/s have responded to the
notices.
11.29 The petitioners have also been granted non-
agriculture permission qua Final Plot No.42 on dated
30.12.2009 by the Authorities concerned.
11.30 The petitioners had been granted regularization
permission vide order dated 09.10.2015. The said
permission came to be cancelled on dated 20.08.2016.
without even issuing notice to the petitioners.
11.31 On the very same day, the Surat Municipal
Corporation, Surat ('the Corporation' for short) had come
to the premises of the petitioners to demolish their
residential premises and under such peculiar
circumstances, the petitioners had to undertake to
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
handover the premises within a stipulated period under
the threat of losing their residential houses on the same
day.
11.32 It is on the very same date i.e., 20.08.2016,
the petitioners approached this Hon'ble Court by way of
Misc. Civil Application No.2357 of 2016 and pointed out
the fact that the order dated 21.09.2015 passed by this
Hon'ble Court in Special Civil Application No.17563 of
2015, seeking implementation of the said T.P.Scheme has
been passed without joining the present petitioners as a
party and the petitioners are the affected parties in the
said dispute. The said fact clearly shows the arbitrary,
biased, collusive and unconstitutional act by the
Corporation as well as by the private respondents.
11.33 The Respondent No. 7 has time and again
made representations to the Corporation to hand over
the possession of the land in question to him pursuant
to the final T.P.Scheme.
11.34 Ultimately, Respondent No.7 has preferred
Special Civil Application No.17563 of 2015 before this
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Court and this Court has directed the Corporation to
implement the sanctioned preliminary town planning
scheme qua the Final Plot No.42 vide order dated
22.01.2016, which reads as under :
1. Heard Mr.Rutul P. Desai, learned counsel for the
petitioner, Ms.Vrunda Shah, learned Assistant Government
Pleader for respondent Nos.1 and 2, Mr.Dhaval Nanavati,
learned counsel for respondent Nos.3 to 6 and Mr.Vivek
Bhamare, learned counsel for respondent Nos.7 and 8/1.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed for
implementation of the Town Planning Scheme No.16
(Kapodara), Surat, qua Final Plot No.42. It further appears
that earlier the respondent-Corporation as an implementing
authority has already passed an order dated 02.05.2011,
whereby the persons who are in possession were given
notice. However, Mr.Dhaval Nanavati, on instructions,
states that the scheme has not been yet implemented.
3. Learned counsel for the petitioner has relied upon the
judgment of the Apex Court in the case of The Municipal
Corporation for Greater Bombay and Anr. Vs. The
Advance Builders (India) Pvt. Ltd. And Ors. [AIR 1972
SC 793] as well as the judgment of this Court
reported in the case of Amarsinh Shanaji Thakore Vs.
State of Gujarat [2004 GHJ 127] and the order passed by
this Court in SCA No.18511 of 2011. It goes without
saying that once the scheme is sanctioned under
Section 65 of the Gujarat Town Planning and
Urban Development Act, 1976 (hereinafter referred to as
"the Act" for short), it is bounden duty of the respondent
Corporation to implement the scheme as provided under
Sections 67 and 68 of the Act as well as Rule 33 of
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the Gujarat Town Planning and Urban Development Rules.
4. Following the ratio laid down by the Apex Court in
the case of The Municipal Corporation for Greater
Bombay and Anr. (supra), it is bounden duty of the
respondent Corporation to implement the scheme. It
appears from the record that the respondent
Corporation made an attempt, but has not fully
implemented the scheme.
5. In light of the aforesaid, the respondent
Corporation is hereby directed to take steps for
implementation of the Town Planning Scheme
No.16 (Kapodara), Surat, qua Final Plot No.42
after following due process as provided under the Act and
the Rules, keeping in mind the ratio laid down by the
Apex Court in the cases of The Municipal Corporation for
Greater Bombay and Anr. (supra) as well as Babubhai
& Co. & Ors. Vs. State of Gujarat [AIR 1985 SC 613]
and the ratio laid down by this Court in the case
of Amarsinh Shanaji Thakore Vs. State of Gujarat [2004
GHJ 127]. Such exercise shall be undertaken after giving
an opportunity of hearing to all the parties affected
including respondent Nos.7 and 8.1 within a
period of 4 (four) weeks from today. The respondent
Corporation by issuing appropriate notice, shall
implement the scheme in accordance with law latest
by 30th June, 2016. It is, however, clarified that this
Court has not expressed any opinion on merits. With
these observations and directions, the petition stands
disposed of. Notice is discharged. No costs. Direct Service
is permitted."
11.35 The Corporation has issued notices to the
petitioners / occupiers to implement the sanctioned T.P.
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Scheme. In response to the said notices, the petitioners
have given undertaking on 20.08.2016 to the Corporation
and stated that they will vacate the land and handover
the peaceful possession within a period of 6 days.
However, they did not abide by their own undertaking
and did not vacate the same.
11.36 Inspite of vacating the possession, they have
preferred Misc. Civil Application No.2357 of 2016 in
Special Civil Application No.17563 of 2015 before this
Court inter alia praying to review / recall of the order
dated 22.01.2016. This Hon'ble Court has, vide order
dated 22.08.2016, not entertained the said application
and has directed the Corporation to implement the
T.P.Scheme, which reads as under :
"1. Present application was moved for urgent order on
20.08.2016, wherein this Court (Coram : Hon'ble
Ms.Justice Bela M. Trivedi) has passed the following
order and therefore, the matter is listed today :-
"Put up on 22.08.2016 at 11 a.m., before the
regular Bench."
2. Heard Mr.B.M.Mangukiya, learned counsel for the
applicants, Mr.Hardik Soni, learned Assistant
Government Pleader for respondent Nos.2 and 3 on
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advance copy, Mr.Dhaval G. Nanavati, learned counsel
for respondent Nos.4 to 7 on advance copy and
Mr.Vivek Bhamare, learned counsel for respondent
Nos.8 to 10. Though served, no one appears for
respondent No.1.
3. The applicants have prayed for the following
reliefs:
"(A) Be pleased to recall the order dated
22.01.2016 recorded by this Court in Special
Civil Application No. 17563 of 2015;
(B) Pending admission, hearing and final
disposal of this application, this Hon'ble Court
will be pleased to direct the respondents not to
implement the notice dated July 25, 2016 and
be pleased to further direct the respondents not
to take any coercive steps to vacate the
premises of the applicants herein by
demolishing or otherwise;
(C) ***."
4. It deserves to be noted that in the prayer prayed
for in the main petition was for appropriate direction,
directing the respondent authorities to immediate
implement Town Planning Scheme No.16 (Kapodara),
Surat, qua Final Plot No.42 and to remove the
encroachment and handover the possession to the
petitioners. No other prayers were prayed for.
5. This Court while passing the order dated
22.01.2016, following the ratio laid down in the
binding decision of the Apex Court in the case of The
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
Municipal Corporation for Greater Bombay and Anr.
Vs. The Advance Builders (India) Pvt. Ltd. And Ors.
[AIR 1972 SC 793] as well as reported judgment of
this Court in the case of Amarsinh Shanaji Thakore
Vs. State of Gujarat [2004 GHJ 127] as well as
unreported judgment of this Court passed in Special
Civil Application No.18511 of 2011, has observed
thus:-
"4. Following the ratio laid down by
the Apex Court in the case of The
Municipal
Corporation for Greater Bombay and Anr. (supr
a), it is bounden duty of the respondent
Corporation to implement the scheme. It
appears from the record that the respondent-
Corporation made an attempt, but has not
fully implemented the scheme.
5. In light of the aforesaid, the
respondent
Corporation is hereby directed to take steps for
implementation
of the Town Planning Scheme No.16
(Kapodara), Surat, qua Final Plot No.42
after following due process as provided under
the Act and the Rules, keeping in mind
the ratio laid down by the Apex Court
in the cases of The
Municipal Corporation for Greater Bombay and
Anr. (supra) as well as Babubhai &
Co. & Ors. Vs.
State of Gujarat [AIR 1985 SC 613] and the rat
io laid down by this Court in the case of
Amarsinh Shanaji Thakore Vs. State of
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
Gujarat [2004 GHJ 127]. Such exercise
shall be undertaken after giving an
opportunity of hearing to all the parties
affected including respondent Nos.7 and
8.1 within a period of 4 (four) weeks from toda
y. The respondent Corporation by issuing
appropriate notice, shall
implement the scheme in accordance with law
latest by 30th June, 2016. It is,
however, clarified that this Court has
not expressed any opinion on merits."
6. It appears from the averments made in the
application that pursuant to the above mentioned order,
the implementing authority i.e. Surat Municipal
Corporation has issued a notice dated 25.07.2016 as
provided under Section 65 of the Gujarat Town
Planning and Urban Development Act, 1976
(hereinafter referred to as "the Act" for short) as well
as the Rules thereof.
7. Learned counsel for the applicants states that the
applicants are affected persons and therefore, they have
filed present review application. He further submits
that the applicants have also filed substantial writ
petition challenging the action of the respondent
Corporation.
8. It is made clear that in the order which is sought
to be recalled, the applicants were not the parties.
However, it is quite evident from the order dated
22.01.2016 passed in Special Civil Application
No.17563 of 2015 that the petition was filed only for
implementing the scheme, which is sanctioned by the
State Government under Section 65 of the Act. No
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further reliefs have been sought for and therefore,
there was no question or occasion to deal with the
scheme. As far as notice dated 25.07.2016 is
concerned, it goes without saying that the respondent
authorities shall have to follow the judgment of the
Apex Court delivered in the case of Babubhai & Co.
& Ors. (supra), which inter alia provides as under:
"8. In the instant case on an examination of
the Scheme of the Act as also the purpose
sought to be achieved by s. 54 it will appear
clear that the topic of making of town planning
schemes is dealt with in ss. 21 to 53 while s.
54 (and some of the following sections like 55
and 71 to 78) deal with the aspect of the
execution of town planning schemes and it is
at the stage of execution of a town planning
scheme that the power of summary eviction of
occupants who have ceased to be entitled to
occupy the plots in their occupation has been
conferred upon the Local Authority itself-a
highly responsible body , and that the power is
required to be exercised by it in objective
manner (it is to be found by reference to the
Final Scheme and its interpretation whether the
occupants are occupying lands which they are
not entitled to occupy). Further we are in
agreement with the High Court that the power
conferred upon the Local Authority is a quasi-
judicial power which implies that the same has
to be exercised after observing the principles
of natural justice, that is to say , the decision
that the occupants are not entitled to occupy
the plots in their occupation has to be arrived
at after hearing such occupants and that too by
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passing a speaking order which implies giving
of reasons and that ensures the application of
mind to only germane or relevant material on
the record 622 eschewing extraneous and
irrelevant. Moreover any order of summary
eviction based on any extraneous, non-
germane, irrelevant or malafide considerations
would be subject to the writ jurisdiction of
Court. Having regard to these aspects, more
absence of corrective machinery by way of
appeal or review would not in our view render
the provision invalid."
9. In light of the aforesaid, in the main petition i.e.
Special Civil Application No.17563 of 2015, except
the direction, no further relief has been granted by this
Court and therefore, it is clarified that rights of the
applicants are in no way prejudiced and even in that
order, this Court had clearly provided that all the
parties, who are affected shall be given an opportunity
of hearing, more particularly, as observed in para 5 of
the said order.
10. In light of the aforesaid, no case for review is
made out. However, the respondent authorities shall
follow the principles annunciated by the Apex Court
and this Court in catena of decisions while
implementing the scheme by providing an opportunity
of being heard and then shall pass a reasoned order.
With this observation and direction, the petition
stands disposed of. Direct Service is permitted."
11.37 Thus, the order dated 22.01.2016 passed by
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this Court as noted above in Special Civil Application
No.17563 of 2015 has attained finality.
11.38 Inspite of vacating the possession, the
petitioner/s has made an application for regularisation of
the construction before the Authority concerned of the
Corporation on 20.08.2016, which was rejected by the
Authority concerned.
11.39 The Respondent No.7 has made representation
to the Corporation to hand over the possession of the
land in question.
11.40 In view of the order passed by this Court in
Misc. Civil Application No.2357 of 2016 noted above, the
Corporation has issued notice to the petitioner/s.
11.41 The petitioner/s has remained absent before
the Corporation in the hearing.
11.42 The petitioner/s remained present before the
Corporation, the Corporation has heard them and has
rejected their request and passed detail reasoned order
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on 31.12.2016 against the petitioner/s.
11.43 Under these facts and circumstances of the
case, the issue as noted above is to be decided by this
Court.
12. In view of above facts, I pose the questions as
follows :
(i) Whether the original land owners are the
bona fide ?
(ii) Whether the Society is a bona fide ?
(iii) Whether the petitioners are the
bonafide ?
(iv) Whether the Authority is the bona fide ?
(v) Whether respondents no.7 to 10 are the
bona fide ?
(vi) Under all circumstances, whether the
public are the sufferer ?
If we recap the entire episode of the land in
question, we can see the clear picture. The land was
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originally belonged to the original land owners.
Thereafter, they have mortgaged the piece of
land before one Cooperative Mandali. When they did not
repay the loan, the said Mandali (through the
appropriate officer) auctioned the land.
The Society has purchased the land in question
through the auction proceedings and became the owner.
Consequently, the possession of the land in question was
handed over to the Society.
Said proceedings were terminated by the
Authority concerned. The land in question was
transferred/reversed in the name of the original land
owners, but the Society has not handed over the
possession of the land in question to the original land
owners. They may have joined their hand each other. Be
that as it may.
At this stage, neither the Society nor the
Mandali nor the original land owners have challenged
the same before any higher forum/ Court.
The Authority has declared T.P. Scheme in
question. The said T.P. Scheme is for the public at
large.
The original land owners have not filed any
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
objection against the T.P. Scheme in question before any
Authority. Having possession on the land in question, the
Society is aware about this fact but not raised any
objection before any authority, as it has no legal right to
object since the land is in the name of the original land
owners.
The original land owners have shown their
willingness to hand over the possession to the Authority
due to the T.P.Scheme.
Since the possession of the land in question
was with the Society, the original land owners have
executed sale deed in favour of the Society again.
The Society, though knowing fully well about
the T.P. Scheme, transferred the land in question to the
petitioners by way of sale deeds between the year 2006
to 2008 and the Society has handed over the possession
of the land in question to the petitioners. At this time,
the petitioners were fully aware about the T.P. Scheme
and about the status of the land in question.
Thereafter, the Society has requested the
authority to cancel the said sale deeds and in turn, the
same are cancelled in the year 2010.
At this stage, the petitioners have not returned
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the possession of the land in question to the Society till
date. The petitioners have never challenged the said
order of rejecting the sale deeds before any higher forum
/ Court. Under these circumstances, how the petitioners
can hold the possession of the land in question and
whether they are, under these circumstances, bona fidely
possessing the land in question.
Other similarly situated persons, to whom the
Society has transferred the piece of lands and their sale
deeds have also been cancelled, have vacated the land in
question to implement the T.P.Scheme.
The Authority has allotted another land to the
original land owners.
The Authority has taken a land of respondents
No.7 to 10 for the purpose of T.P. Scheme in question
and allotted new land which is the land in question to
respondents No.7 to 10. Therefore, question is as to
whether the respondent nos.7 to 10 have received any
land in place of his land which is already taken by the
Authority for the purpose of T.P.Scheme ? Whether the
purpose of T.P.Scheme in question, which has already
become the Act since long, is served or not? Considering
all these facts in mind, the above questions are
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answered as under :
12.1 The original land owners have mortgaged the
land in question before one Mandali and taken a loan at
the relevant point of time and the original land owners
have not repaid the loan to the said Mandali and
therefore, their lands were forfeited by the said Mandali.
The auction was held and the said Mandali thereby sold
the land in question and get his loan back by selling
the land in question. The land owners have received the
money in place of land and the Mandali has also
received its money by selling the mortgaged land. The
Society has purchased the land in question through the
said auction proceedings by paying appropriate sale
consideration to the Mandali. Now, the turning point
starts. The Authority has terminated the proceedings and
therefore, the land in question was transferred in the
name of original land owners, who have mortgaged the
land in question and received the money as loan and
enjoyed it. Now, again the land has come in their
names. So, both the ways, they are the beneficiaries. The
Mandali was also not in loss as they have given the
loan in place of land in question, sold the land in
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question to the Society and received their money back,
therefore, the Mandali was not in loss. The original land
owners have given their consent to the Authority to
hand over the possession of the land in question, but
since the petitioners are possession in the land in
question, they did not abide by his consent and thereby
not given the possession to the Authority.
12.2 The Society has purchased the land in question
from one Mandali through auction proceedings, which
was terminated by the Authority and the land in
question has gone in the name of the original land
owners. However, the Society was in possession of the
land in question and not handed over the possession of
the land in question to the original land owners. The
Society has never challenged the said termination order
before any higher forum or Court, but also not handed
over the possession back and vacate it. The Authority
has introduced the T.P.Scheme. The Society has never
objected to it as it has no legal right, title or interest
on the land in question, as it has only possession of the
land in question. The original land owners again
executed a sale deed in favour of the Society inspite of
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
having knowledge about the T.P.Scheme. The Society has
executed sale deeds in favour of the petitioners and
others in the years 2008 and handed over the possession
of the land in question to the petitioners and thereby
created right / equity in favour of the petitioners. The
petitioners were also aware about the T.P.Scheme and
the status of the land, even though they have purchased
the land in question. At the instance of the Society, the
said sale deeds were cancelled, but the possession
remains with the petitioners as the petitioners have not
vacated. So, only title of the land in question remains
with the Society and not the possession. The Society has
also gained its money from the petitioners and therefore,
they are not in loss. The Society has also shown his
willingness to hand over the possession of the land in
question. The Society can show its willingness as it is
neither in loss nor in possession of the land in question.
One more glaring aspect that the Society has never
initiated any proceedings nor it has become the party
respondent in any proceedings. If the Society's legal right
is affected by any proceedings, then why the Society has
not initiated any proceedings. Be that as it may. It
smacks a lot against conduct of the Society.
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
12.3 The petitioners have purchased the land in
question from the Society, knowing fully well that the
T.P.Scheme has been introduced by the Authority and it
affects the land in question. The said sale deeds were
cancelled by the Authorities at the instance of the
Society. The petitioners have not raised any objection
qua the T.P.Scheme or qua the cancellation of the sale
deeds. The petitioners have not challenged the same
before any higher forum / Court. The possession of the
land in question is with the petitioner, which is not
handed over back by the petitioner till date. Whether the
petitioners can possess the land in question without any
legal right, title or interest since the sale deed has
already been cancelled, is the question which can be
answered from the facts narrated above.
12.4 The Authority has introduced the T.P.Scheme
in the interest of public at large. The objections were
invited by the Authority from the affected and interested
persons, hearing was given to the public who have raised
objections, including the petitioners and finalised the
T.P.Scheme, after following due process of law and the
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T.P.Scheme has become the part of the Act. In the
meantime, the society has applied for development
permission, Raja Chitthi was also issued by the
Corporation for the same in the year 1994 and
construction was made. The Authority was aware about
the T.P.Scheme, which is of the year 1987, then how
such permission was issued by the Authority. Under
these circumstances, the Authority has not acted bona
fide to that extent. It smacks a lot. Be that as it may.
Since it is not the issue before this Court and the
T.P.Scheme has now become the part of the Act since
long, this Court is restraining itself to enter into such
things.
12.5 Pursuant to the T.P.Scheme, the Authority has
taken the land of respondents no.7 to 10 and allotted
new land, which is the land in question, which possesses
by the petitioners. The respondents no.7 to 10 have
already handed over their lands to the Authority for the
T.P.Scheme. Therefore, on one hand, the respondents no.7
to 10 have given their land to the Authority for the
purpose of T.P.Scheme and on the other hand, they can
not enjoy the another land in place of their land, which,
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as a matter of right, they are entitled to. Due to the
possession of the petitioners on the land in question, the
Authority can not give possession of the land in question
to the respondents no.7 to 10, which is allotted to them
pursuant to the finalisation of the T.P.Scheme and now
the T.P.Scheme has become the part of the Act since
long. Therefore, the respondents no.7 to 10 are in loss,
that too at the instance of the Society, petitioners and
Authorities. They are entitled to get their rights legally,
however, since it is the petition by the petitioners, the
role of this Court is very limited qua the observations
made in favour of the respondents No.7 to 10 at this
stage. Inspite of these facts, it must be noted that the
contention of the petitioner regarding the document
showing relinquishment of right over the land in
question by Balvant Jetha as well as other documents,
sounds attractive. The conduct of said Balvant Jetha is
also not appreciable, since the said documents are signed
by Balvant Jetha only, which is rebutted by the learned
advocate for respondents no.7 to 10 and therefore, that
contention of the petitioner is not acceptable in eyes of
law and tilts the balance against the petitioners.
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
12.6 During the entire picture of the present case,
no one has though about the interest of the public at
large. The purpose of the T.P.Scheme is not to disturb
any person or not to target any person, but it is for the
interest of the public at large. In such a case, the
interest of the public at large should give always top
priority. When the interest of the public at large is
staring us, the personal interest should always be
ignored. There are catena of decisions on this line which
we all are aware and therefore not discussed here. In
the present case, this Court has observed very minutely
the demeanor of the all the parties. This Court finds
that there is less bona fide, more mischief on the part
of all the parties before this Court. However, since it is
not the issue before this Court, I am restraining myself
from observing anything against anyone at this stage, in
this petition. Therefore, in any circumstances, the
T.P.Scheme must be implemented which is final, as it
has become part of the Act since long.
13. It is relevant to refer to some of the
judgments cited at the bar for ready reference :- (i) 2008
(4) SCC 127 - General Manager, Haryana Roadways
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
versus Jai Bhagwan, (ii) 2016 93) GLR 2645 -
Ramanbhai Hargovindbhai Limbachiya versus State of
Gujarat and (iii) 2008 (12) SCC 401 - Babulal
Badriprasad Verma versus Surat Municipal Corporation
at this stage. Further, keeping in mind view laid down
in these decisions as well as also keeping in mind the
ratio laid down by this Court in the case of Snehanjali
Cooperative Housing Society Limited (supra) , confirmed
by the Hon'ble Apex Court, wherein the ratio laid down
by the Hon'ble Apex Court in the case of Advance
Builders Pvt. Ltd. (supra) was kept in mind, as cited by
learned advocate for the petitioner as well as learned
advocate for Respondent No.7, which is squarely
applicable to the facts of the present case and tilts the
balance against the petitioners and in favour of
Respondent No.7. There are other decisions which
support the case of the Government / Corporation and
the private respondents herein. There is no dispute with
regard to the law enunciated by the Hon'ble Supreme
Court of India which are cited by the learned advocate
for the petitioners, but they are not helpful to the
petitioners in these facts noted above.
C/SCA/15348/2016 CAV JUDGMENT DATED: 12/10/2022
14. It is also fruitful to refer to the judgment
cited by the learned advocate for the petitioners for the
purpose of exercising the powers under Article 226 of the
Constitution of India in the case of Hari krishna Mandir
Trust versus State of Maharashtra reported (2020) 9
SCC 356 (Head Note - G & H), which is as under :
"G. Constitution of India - Art.226 - Writs -
Mandamus - When must be issued - Mandamus is
issued in case public authority fails to exercise power
or discretion or exercises the same mala fide or
erroneously - Direction that ought to have been issued
by authority concerned - When may be issued by
Court itself - Principles summarised - Mandamus is
to enforce a legal duty - It must be shown that such
duty exists towards the applicant - Once the same is
established, High Court is duty-bound to issue writ of
mandamus.
H. Constitution of India - Art.226 - Maintainability
of writ petition - Questions of act - Discretionary
jurisdiction of High Court - High Court does have
jurisdiction to try both issues of fact and law -
Exercise of the jurisdiction under Art.226 is, it is true,
discretionary, but the discretion must be exercise on
sound judicial principles."
Therefore, in view of above discussion, this is
not a fit case to exercise the powers under Article 226
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of the Constitution of India and this petition therefore
needs to be dismissed.
15. In my conclusion, this Court is of the view
that the petitioners could not establish their legal rights
and also could not prove breach of any fundamental or
constitutional rights if they are having. On the contrary,
from the record it transpires that pursuant to the
finalisation of the T.P. Scheme, the Final Plot No.42
which is allotted to respondents Nos.7 and 8, the
implementation of the T.P.Scheme could not be proceeded
further, due to the obstruction created by the petitioners.
Therefore also, the petitioners are not entitled to get any
benefit / relief from this Court as prayed for in the
petition, as no case is made out to establish any
arbitrary or illegal action by the respondent Authorities.
There is no reason for this Court to exercise the powers
under Article 226 / 227 of the Constitution of India in
favour of the petitioners, more particularly, for granting
writ of mandamus in such peculiar situation. Therefore,
the present petition is found meritless and deserves to
be dismissed.
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16. There cannot be any dispute with regard to
the law enunciated in the decisions of the Hon'ble Apex
Court as well as other Hon'ble Courts relied upon by the
learned advocate for the petitioners, however, it cannot
be helpful to the petitioners any further in view of the
facts and circumstances of the present case. The present
case does not fall within the purview of these decisions
with such facts. Therefore, the present petition deserves
to be dismissed.
17. For the reasons recorded above, the following
order is passed.
17.1 The present petition is dismissed, with no
order as to costs.
17.2 It is expected that the Surat Municipal
Corporation, Surat shall implement the Town Planning
Scheme No.16 (Kapodara), Surat by performing its
statutory duty, in its true spirit, in the interest of public
at large.
17.3 It would also be expected that all the parties
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will cooperate the process of implementation of the Town
Planning Scheme No.16 (Kapodara), Surat.
18. In view of disposal of main petition above,
both the civil applications would not survive and are
disposed of accordingly.
19. Since this Court has protected the petitioners
while admitting the present petition, as the petitioners
are residing at the land in question since long, propriety
demands in the peculiar circumstances of the case that
interim relief granted by this Court should be extended
further. Accordingly, the interim relief granted by this
Court is extended for a further period of three months
from today.
Sd/-
(SANDEEP N. BHATT,J)
M.H. DAVE
