Bhagchandbhai Mulchandbhai ... vs State Of Gujarat
2022 Latest Caselaw 9360 Guj

    C/SCA/11658/2017                                 CAV JUDGMENT DATED: 21/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11658 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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

1 Whether Reporters of Local Papers may be allowed No 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 ?

========================================================== BHAGCHANDBHAI MULCHANDBHAI KHATRI Versus STATE OF GUJARAT & 3 other(s) ========================================================== Appearance:

MR. SHALIN MEHTA, SR. ADVOCATE WITH ADITI S RAOL(8128) for the Petitioner(s) No. 1.1,1.2,1.3 MR JITENDRA M PATEL(620) for the Petitioner(s) No. 1 MR. MEET THAKKAR, AGP for the Respondent(s) No. 1 MR JINESH H KAPADIA(5601) for the Respondent(s) No. 10,11,12,13,14,15,16,5,6,7,8,9 MR MEHUL H RATHOD(701) for the Respondent(s) No. 3 MR NIRAV K PADHIYAR(5678) for the Respondent(s) No. 10,11,12,13,14,15,16,5,6,7,8,9 MS NILAM N CHAUHAN(6635) for the Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No. 1,2,4 ========================================================== CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

Date : 21/10/2022 CAV JUDGMENT

1. By way of present petition under Article 226 of the

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Constitution of India, the petitioners have prayed for the following reliefs:

"5. The petitioner is having no other adequate remedy, approaches to Your Lordships and prays that a writ of mandamus or a writ of certiorari and/ or any other appropriate writ, order or direction may kindly be issued under Article 226 of the Constitution of India:

A. To quash and set aside the Resolution No. 296 dated 30.1.2017 passed by the Deesa Nagar Palika (respondent No.3) in its General Board Meeting (Annexure A) and further restrain the Nagar Palika from taking such action contrary to the sanctioned draft development plan of the State Government as per Notification dated 7.1.2016 (Annexure-H); B. Be pleased to direct the Collector, Banaskantha to reconsider his application for aforesaid land bearing Survey Nos. 103 and 104 for non-agricultural residential use as all the Authorities below have recommended to sanction such plan and pass necessary order after giving opportunity of hearing to the petitioner;

C. Be pleased to pass such other and further orders as may be deemed fit in the interest of justice;

D. Be pleased to quash and set aside the order dated 15.01.2018 passed by the Collector, Banaskantha rejecting the revised plan for Survey No. 103 paiki, Seat No.14, City Survey No. 4898 admeasuring 3280 sq.mt and Survey No. 104 paiki, Seat No.22, City Survey No. 4899 admeasuring 4056 sq. Mt for residential purpose at Annexure - 01 and 02;

6. Pending the final hearing and disposal of this petition, YOUR LORDSHIPS may be pleased to-

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(a) to stay the execution, operation and implementation of the Resolution No. 296 dated 30.1.2017 passed by the Deesa Nagar Palika (respondent No.3) in its General Board Meeting (Annexure-A);

(b) Be pleased to direct the Collector to take decision in the Application of the petitioner for sanctioning the land for Non- agricultural residential use for the land bearing Survey Nos. 103 and 104 situated within the territorial limits of Deesa Nagar Palika as early as possible within the stipulated time and after giving an opportunity of being heard to the petitioner.

(c) Be pleased to pass such other and further orders as may be deemed fit proper n the interest of justice and in the facts of the case;

(d) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation, implementation and execution of the order dated 15.01.2018 passed by the Collector, Banaskantha rejecting the revised plan for Survey No. 103 paiki, Seat No.14, City Survey No. 4898 admeasuring 3280 sq.mt and Survey No. 104 paiki, Seat No.22, City Survey No. 4899 admeasuring 4056 sq. Mt for residential purpose at Annexure - 01 and 02 and direct the Collector, Banaskantha to sanction the revise development plan of the petitioner for aforesaid lands."

2. The Brief facts of the present case, as emerged from the petition, are as under:

2.1 The petitioner is the owner and occupier of the land bearing Survey No. 103-P, admeasuring 3280 sq. Mtr and 104-P admeasuring 4056 sq. Mtrs which have been respectively given City Survey Nos. 4898 and 4899. It is contended that

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the other lands from the said Survey Numbers have already been converted into Non-agricultural use and most of the lands have been sold to various persons. According to the petitioner, on 24.4.1994, the State Government published the Draft Scheme in which 30 mtrs equivalent to 100 feet wide road was shown in the Draft Plan in the year 1994, which passes through the land of the petitioner and other i.e. Survey Nos. 102, 103, 104, 106 and 141 situated within the territorial limits of Deesa Nagar Palika.

2.2 It is contended that against the said action on the part of the respondent- Authority, the petitioner along with other had filed Special Civil Application No. 7065 of 1994 before this Court and vide order dated 18.11.2010, this Court allowed the said petition and quashed and set aside the Notification dated 25.4.1994 issued by the State Government. According to the petitioner, earlier respondent No.3 i.e. Deesa Nagar Palika vide Resolution dated 18.10.1988 have also objected for the said proposed wide road of 30 mtrs passing through the land of the petitioners and others. It is also contended that Nagar Palika has also addressed a letter to the Chief Town Planner asking to delete the proposed road from the suit land with a view to comply with the order of the Hon'ble High Court. It is contended that therefore the Town Planning Officer vide letter dated 26.6.2012 submitted the proposal to the State Government for deletion of the said road from the Draft

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Scheme.

2.3 Thereafter, the Town Planning Officer vide letter dated 26.6.2012 invited objections and suggestions against the Draft revised Development Plan under Section 13(1) of the Gujarat Town Planning & Urban Development Act, 1976. That, thereafter, by Notification dated 30.3.2013, the State Government proposed the revised development plan under Section 13(1) of the Act and in the said proposal, no road was shown passing through the land bearing Survey Nos. 103-P and 104-P, which belong to the petitioner.

2.4 That, thereafter under Section 16 of the Act, the State Government has issued Notification dated 31.7.2015 for modification inviting objections against the said proposed modification and in the said notified plan at Sr. No.5, it was clearly mentioned that "15 meter wide existing road marked as "D-D1" passing through the Revenue Survey Nos. 103 and 104 of village Deesa shall be deleted and the land then released shall be designated in relevant zone under Section 12(2)(a) of the Act as shown in the accompanying plan."It is contended that this was done in order to comply with the order of this Court and proposed road has been deleted.

2.5 It is contended that while exercising the power conferred under Section 17(1) (c) of the Act, the State Government

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sanctioned the Draft Development Plan with modification and for that purpose, it has issued Notification dated 17.1.2016 wherein, 30 mtrs wide road, which was earlier notified in the Notification dated 25.4.1994, was deleted and there was no proposed road shown passing through the aforesaid land of the petitioner in the revised Development Plan.

2.6 It is also contended by the petitioner that one Rameshkumar Kasturji Sundesha and others filed Regular Civil Suit No. 123 of 2016 in the Court of learned Principal Senior Civil Judge, Deesa against the petitioner and Deesa Nagar Palika claiming the relief that the petitioner and the Deesa Nagar Palika be prevented in utilizing or using 30 mtrs wide road passing through the aforesaid land bearing Survey No. 104. That in the said Suit, the Nagar Palika had filed written statement - Exh-25 wherein it has been admitted that the proposed road passing through the Survey Nos. 103 and 104, which was shown in the earlier Development Plan dated 25.4.1994, was deleted by this High Court and the said Notification dated 25.4.1994 was quashed and set-aside by this Court.

2.7 According to the petitioner, however, thereafter all of a sudden the Nagar Palika has changed its lawyer and changed its stand taken earlier in the aforesaid written Statement and produced Resolution No. 296 dated

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30.1.2017 passed by the Nagar Palika in its General Board Meeting, before the Court vide document marked as 56/1 in which it is stated that the Nagar Palika has taken "U" turn and resolved that originally 30 mtrs i.e. 100 feet Draft town planning road from the aforesaid land is required to be maintained and it is in the interest of general public of Deesa and, therefore, the Nagar Palika has decided to sent the proposal to the State Government to sanction the said 30 mtrs i.e. 100 feet wide road in the Draft Scheme passing through the land of the petitioner and others.

2.8 It is also contended that thereafter ultimately Civil Court passed an order below Exh-5 on 14.3.2017 partly allowing the said Application to the effect that during the pendency of the Suit, unless and until the defendant No.1 i.e. the present petitioner obtain necessary permission from the Authority for raising any construction on the Suit land (de- served land of D.P. Road of Survey No. 104 of Deesa) shall maintain status-quo of the suit land. According to the petitioner, against the said order he has preferred the Appeal before the Additional District Court, Banaskantha @ Deesa, which is still pending.

2.9 It is contended by the Petitioner that as per earlier order of this Court in SCA No. 7065/1994, the petitioner had filed application before the Collector dated 8.2.2015 and 19.2.2016 for aforesaid two pieces of land of Survey Nos.

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103 and 104 for sanctioning the lay out plan for residential purpose. It is contended that all the authorities, including the Nagar Palika, have opined in favour of the petitioner and requested for sanctioning the lay out for residential purpose. It is contended that, however, the Collector, [email protected] Palanpur is not proceeding further and not deciding the Application for sanctioning the Plan for non- agricultural residential purpose.

2.10 In view of the aforesaid facts, the petitioner has initially sought for the prayer challenging Resolution dated 30.1.2017 passed by the Nagar Palika bearing No. 296 and also non-action on the part of Collector, in not proceedings with the application of the petitioner. However, during the pendency of the petition, as Collector has decided the matter against the petitioner, by way of amendment, the petitioner has sought for further prayer, challenging the order of the Collector, rejecting the application and for direction to the Collector, [email protected] Palanpur to sanction the revised Development Plan of the petitioner for the aforesaid land.

3. Respondent No.3 i.e. Deesa Municipality has filed its reply at Page-147, and has contended that by passing the impugned Resolution No. 296 dated 30.1.2017, the Municipality has neither acted illegally nor has violated any of the right of the petitioner. It is contended that in view of

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the demand by the respondents of the Ward No.2 and the Councillors, the issue of keeping 30 feet wide road into the revised Development Plan was taken for consideration in the General Body Meeting dated 30.1.2017 of the Municipality and the General Body of the Municipality has resolved to submit proposal to the Government to keep 30 mtrs vide disputed road in the revised plan. It is also contended that the municipality has already submitted the said proposal to the State Government on 2.2.2018 for keeping the disputed road in the revised Development Plan.

3.1 It is also contended that so far as Civil Suit No.123/2016 is concern, it was filed by one Rameshkumar Kasturji Sundesha and others wherein the Municipality and the present petitioners are defendant however the plaintiffs of that Suit are not made party in the present petition. It has prayed to dismiss the petition.

4. Affidavit-in-reply on behalf of Respondent No. 2 has been filed at Page-222 wherein it is contended that the Office of the Collector by its Order dated 19.7.1988 granted the non- agricultural permission in Revenue Survey No. 104 for 17043 sq. Mtrs of land for residential purpose and granted NA permission in Revenue Survey No.103, for 26304 sq. Mtrs land on 26.3.1993 for residential purpose. It is contended that the question of grant of revised Development Plan in Revenue Survey Nos. 103 and 104

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came to be rejected on 15.1.2018 and thereafter the petitioner has preferred the present application for permission. It is contended that the question of DP Road is within the domain of Deesa Nagar Palika.

4.1 It is further contended that this Court vide its order dated 9.12.2020 passed in the present matter, directed the Collector to decide the NA application filed by the petitioner after affording proper opportunity of hearing to the parties. It is contended that the concerned Authority with whom resolution of the municipality is pending, was also directed to decide the question of road after affording opportunity to the parties and to pass reasoned order as early as possible within 6 months from the date of receipt of this order. It is contended that pursuant to the said order, the Office of the Collector, Banaskantha has after affording opportunity of being heard and considering the written reply dated 18.1.2021, passed the order dated 10.2.2021 and has ultimately filed the application of the petitioner as it does not come within the domain of the Collector and it is within the power of other authority. It is also contended that pursuant to the Circular dated 8.5.2018, passed by the Revenue department, procedure for NA permission has been simplified and as per this Circular, in case of urban areas, the power is granted to the concerned Nagar Palika to approve the plan and to accord sanction. It is contended that the office of the Collector,

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[email protected] Palanpur has already accord NA permission and now for revised NA permission, it is within the domain of the Deesa Nagar Palika. On all these grounds, it is requested to dismiss the petition.

5. The Affidavit-in-reply on behalf of p[rivate respondents has been filed by one Mr. Govindbhai Madhavlal Thakkar (page-

236) wherein it has been contended that the Nagar Palika has proposed the road in question by impugned resolution and the Nagar Palika has already sent the proposal to the State Government which is pending before the State Government for its consideration and, therefore, the petition itself is not maintainable at this stage. It is also contended that the petitioner has alternative efficacious remedy available under Section 258 of the Gujarat Municipalities Act, 1963/ Section 6B of the Gujarat Town Planning & Urban Development Act, 1976. On this ground also, the petition is not maintainable. It is also contended that so far as amended remedy is concerned, the efficacious remedy in the form of necessary action under Section 5 (c) of the Gujarat Land Revenue Code is available to the petitioner and, therefore, on this ground also, the petition deserves to be dismissed.

5.1 It is contended that the answering deponents are occupiers of the Plots of the Survey Nos. 103, 104, 106 and surrounding Survey Numbers and they are using the road

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passing through the Survey Nos. 103 and 104 since last many years. It is contended that original petitioner has moved an application for revised NA permission for Survey Nos. 103 and 104 so that he can sell the road land of Survey Nos. 103 & 104, which have been shown as road in the earlier lay out plan. It is contended that since large number of persons are using the road passing through Survey Nos. 103 and 104 since last many years, several representations have been made. It is also contended that due to passage of time, population as well as number of vehicles have been increased in Deesa City and the road in question is connecting the main area of the Deesa City and connecting the essential places. That members of 13 Societies at land Survey Nos. 103 and 104 and surroundings of the said survey Number had made representations against the deletion of road in question. It is also contended that on that basis the Nagar Palika has already passed the impugned Resolution and proposed the road in question from the aforesaid lands.

5.2 It is also contended that the petitioner while getting NA permission for Survey No. 103 in the year 1993, had himself declared by giving application that road is to be kept as public road. It is also contended that one of the answering deponent s has also filed Civil Suit and the same is pending for adjudication. It is also contended that thousands of people are using the road for their daily transport and the

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petitioner being original owner of the land have sold the land by plotting the same to different persons under the guise of open road, and now for making money, the petitioner wants to make construction on the road land. On these grounds, the petitioner prays to dismiss the petition.

6. It appears from the record that the petitioner has filed rejoinder affidavit at page-154 against the affidavit-in-reply filed on behalf of respondent No.3 only. He has reiterated the facts narrated by the petitioner and has stated that earlier the DP road was deleted and the said land has been categorized as residential area. Regarding the order passed by the trial Court as to maintaining status-quo, it is contended that against that order, the deceased petitioner has filed Misc. Appeal No. 7/18 before the District Court wherein the District Court has allowed the said Appeal and quashed and set aside the order of the trial Court for maintaining status-quo regarding the same. It is also contended that against the order of the District Court, the Plaintiffs have filed Special Civil Application No. 1735 /2019 before this court which also came to be dismissed by this Court vide order dated 30.1.2019. It is prayed to allow the present petition.

7. Heard Mr. Shalin Mehta, learned Senior Counsel with Ms. Aditi Raol, learned advocate for the petitioner, Mr. Meet Thakkar, learned AGP for the respondent Nos. 1,2 and 4 and

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Mr. Mehul Rathod, learned advocate for the respondent No.3 and Mr. Jinesh Kapadiya, learned advocate for the respondent Nos. 5 to 16 at length. Perused the material placed on record and the decisions cited at bar.

8. Mr. Shalin Mehta, learned Senior Counsel for the petitioner has reiterated the same facts which are narrated in the Memo of the Petition as well as in affidavit-in-reply filed on behalf of the petitioner. Mr. Mehta for the petitioner has submitted that earlier road was proposed from various Survey Numbers, including present one, which came to be challenged before Court wherein this Court has already cancelled the Resolution. He has submitted that the order of this judgment has already been implemented and even earlier the Nagar Palika dropped the road in question and thus, the earlier proposed road has been cancelled and the order of this Court has become final. He has submitted that the order of this Court cancelling the Notification of proposed road have not been challenged by anybody.

8.1 Mr. Mehta has also referred to the Notification dated 31.7.2015 wherein it has been specifically submitted that proposed road has been deleted between "D-D1". He has submitted that this has become final by Notification dated 7.1.2016. He has further submitted that since there was deletion of the road, the petitioner herein has applied for revised Development plan for residential purpose.

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8.2 Mr. Shalin Mehta, learned Senior Counsel has submitted that earlier Nagar Palika has agreed for deletion of the road and now vide impugned Notification No. 296 dated 30.1.2017, has proposed the road in the land of the petitioner and has forwarded it to the Government. Mr. Mehta has submitted that this action of the Nagar Palika is dehors the powers of the Nagar Palika and for such action, Nagar Palika wants to nullify the order and judgment of this Court. He has submitted that since Nagar Palika has already accorded its consent for deletion of the road, now only the State Government has power to revise the final development plan. He has submitted that the impugned resolution of the Nagar Palika is inconsistent with the Draft Plan dated 7.1.2016. He has submitted that even procedure under Section 19 of the Town Planning Act has not been followed for variation of the Scheme. He has submitted that impugned resolution of Nagar Palika is only for certain parties and it is nothing but colourable exercise of power.

8.3 Mr. Shalin Mehta, learned Senior Counsel has submitted that there is a Civil Suit filed by the private respondents and the same has been contested by the Nagar Palika and yet Nagar Palika has passed impugned Resolution. Mr. Mehta has also submitted that when the road was deleted by this Court and no road was proposed from the land of the petitioner, it is incumbent on the part of the concerned

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authority to sanction the revised plan for NA permission for residential purpose for the land in question, which belongs to the petitioner. He has submitted that the application moved by the petitioner before the learned Collector, has not been filed on the ground that it does not fall within the domain of Collector and it is for the concerned competent authority to decide the same. He has submitted that since no procedure under Town Planning Act for revision of the Plan has been followed by the concerned authority, and the exercise of power by the Nagar Palika in passing the impugned resolution is colourable exercise of power the same deserves to be quashed and set aside and the competent authority needs to be directed to sanction the revised NA plan for residential purpose for the land in question with regard to the petitioner. He has also referred to the provisions of Sections 13, 14, 16, 17, 19 and 20 of the Town Planning Act, 1976. He has prayed to allow the present petition. Mr. Shalin Mehta has relied upon the following decisions in support of his submissions:

1. Kolhapur Municipal Corporation and Others v. Vasant Mahadev Patil (Dead) Through Legal Representatives and Others, reported in (2022) 5 SCC 758, wherein Paras-33 to 39, read as under:

"33. Thus, as per the law laid down by this Court in the aforesaid three decisions, if the land reserved under the draft Development Plan/Development Plan is not acquired

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within a period of ten years form the date of final Development Plan and thereafter after expiry of ten years, the landowners serve a purchase notice and thereafter within a period of one year, no steps are taken to acquire the land, the reservation/allocation is deemed to have lapsed and the land stand released from such reservation/ allocation. As held above, declaration under Section 6 of the Act of 1894 can be said to be taking steps as contemplated under Section 127 of the MRTP Act. After the enactment of the Act of 2013, the declaration under Section 6 of the Act of 1894 is now to be read and/or is substituted by declaration under Section 19 of the Act of 2013.

34. Therefore, if within a period of one year from the date of receipt of purchase notice as per Section 127, a declaration under Section 19 of the Act, 2013 is not issued and the land is not acquired, the reservation/allocation under the Development Plan is deemed to have lapsed and the land is released from such reservation/allocation.

35.Applying the law laid down by this Court in the aforesaid decisions to the present case, the first Development Plan under which the original writ petitioners' land was reserved for public purposes was in the year 1976. Thereafter the second amended Development Plan was published on 18.12.1999 and came to be implemented from 01.02.2000, under which also the land of the original writ petitioners was reserved for public purposes. But the same had not been acquired for ten years despite the respondents - original writ petitioners having issued a purchase notice dated 02.01.2012 under Section 127 of the MRTP Act for

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acquisition of the reserved area. A mere Resolution being passed by the General Body of the Corporation to acquire the land and sending a letter to the Collector to acquire the land, without any further steps being taken under the Land Acquisition Act, namely no declaration under section 6 thereof being issued within a period of one year from the receipt of the said purchase notice, would result in the reservation as deemed to have lapsed.

36. In the present case, the High Court has issued a writ of Mandamus directing the Corporation to issue a declaration under Section 19 of the Act of 2013 mainly on the ground that the General Body of the Corporation had passed a Resolution dated 18.02.2012 resolving that the land in question is required to be acquired and the same is needed for the purpose for which it has been reserved. However, in our view, mere passing of a Resolution and/or making a budgetary provision for payment of the compensation in the budget cannot be said to be taking steps as contemplated under section 127 of the MRTP Act.

37. Therefore, once the reservation of land under the Development Plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of Mandamus could have been issued by the High Court directing the Corporation to still acquire the land and to issue a declaration under Section 19 of the Act of 2013 (as in the meantime, the Land Acquisition Act, 1894 has been repealed and Act of 2013 has been enacted). Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come.

38. Now, so far as the observation made by the High Court

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that after the reservation is deemed to have lapsed, it has not been notified in the Official Gazette as required under Section 127(2) of the MRTP Act is concerned, we observe that notification in the Official Gazette is only a consequential act and it has nothing to do with the actual lapsing of reservation by operation of law as the reservation is deemed to have lapsed under Section 127(1). Thereafter issuance of the notification of lapse of the reservation of land is only a procedural act and non- issuance of such a notification in the Official Gazette with respect to lapse of the reservation, allocation or designation would not affect the lapse of the reservation under Section 127(1) of the MRTP Act.

39. Therefore, as such once the reservation with respect to the land in question was deemed to have lapsed as observed hereinabove, no further writ of mandamus could have been issued by the High Court to acquire the land and thereafter pay the compensation to the landowners, as on the lapse of the reservation, the land in question is free from reservation and the landowners can use it as if there is no reservation, however, subject to provisions of the MRTP Act."

2. N. Nanalal Kiklawala and Another v. State of Gujarat, reported in (2005) 12 SCC 649, wherein it is observed in Para-5 as under:

"5. Before the High Court the Nagarpalika took the stand that it had applied for variation of the schemes. In view of the provisions contained in Section 71 of the Act,

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the direction as given by learned Single Judge could not have been given. Learned Single Judge had observed that mere possibility of variation in town planning scheme by subsequent scheme does not authorize the Nagarpalika to avoid implementation of scheme. The High Court accepted the plea of the Nagarpalika that when proposal for variation is pending the direction should not have been given. It was observed that the parties were to act in accordance with the scheme, if any scheme emerges as a consequence of the variation of the sanctioned scheme. Opportunity was given to the aggrieved party to question correctness of the scheme before the appropriate forum."

3. Bhavnagar University v. Palitana Sugar Mill (P) Ltd.

And Others, reported in (2003) 2 SCC 111;

9. Mr. Meet Thakkar, learned AGP has submitted that in view of the Government Resolution of 2018, now the power has been vested with the local authorities to sanction NA which may be revised or original. He has, while referring to the affidavit of Deputy Collector, at Page-222, submitted that since granting of such NA permission in respect to urban land is vested with other competent authority, domain to sanction such NA is not within Collector and, therefore, in the present case, the Collector has already filed the Application as per its order, which has been referred to in the affidavit-in-reply by the Deputy Collector. He has submitted that since question of road is within the domain of the concerned Nagar Palika, the Collector cannot take

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any decision in respect thereof. He has submitted that the resolution has been passed by the Municipality for the proposed road in question and it has sent the resolution to the Government, which is pending before the Government. He has further submitted that the impugned Resolution is passed by the Municipality under the provisions of Gujarat Municipalities Act and, therefore, if any grievance is there, then the petitioner can take necessary recourse under the provisions of Gujarat Municipalities Act and without approaching the concerned authority, which is efficacious alternative remedy, the petitioner cannot insist for redressal of his grievance by filing petition under Article 226 of the Constitution of India. He has also submitted that since there is efficacious alternative remedy available to the petitioner, the petition may be dismissed.

10. Mr. Mehul Rathod, learned advocate for the Municipality has submitted that there is no prayer for approval of the revised plan sought for against the Nagar Palika. He has submitted that this Court has initially set-aside the Notification of the Government in respect of road in question. He has submitted that however, considering the public representation and the necessity, now the Nagar Palika has proposed road from the land in question. He has submitted that under the provisions of Town Planning Act, any final Scheme can be revised or necessary variation can be made by the competent authority. He has submitted that

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for variation in the Scheme, it has to be initiated by the Nagar Palika and the State Government cannot ipso facto initiate action for variation in the Scheme. He has also submitted that by the order of this Court, the right of the concerned authority of initiating variation of Scheme in future is not restricted. Mr. Rathod has also referred to the affidavit filed by respondent No.3 as well as the Deputy Collector and has submitted that in view of the power vested in with the Nagar Palika, the Nagar Palika has also proposed variation of the old Scheme and the proposed road for the land in question and it has send it to the government, which is pending before the Government. He has also submitted that the Collector has already filed the application of the petitioner for revised NA for the residential purpose on the ground that now the authority is vested with concerned Urban Authority. Mr. Rathod has submitted that however, the petitioner has not made any prayer against the Municipality for permission of such NA revision plan for residential purpose. He has submitted that considering the facts of the present case, the petition may be dismissed.

11. Mr. Kapadia, learned advocate for the private respondents has, while referring to the material placed on record, submitted that the petitioner himself has initially sought for NA permission in 1993 for residential plots and at that time he has left out portion of the road as vacant and in that NA

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application, the petitioner has shown the road in question in his own land. He has also submitted that in that view of the matter, the road was to be kept open in the land in question. He has also submitted that even there is other road existing between Survey Nos. 103 and 104. He has submitted that earlier petition was field under Section 20(2) of the Town Planning Act. He has submitted that due to passage of time, there is a need of revisitation of the reservation. He has submitted that considering the necessity of the people in the vicinity, they have made representation to the Municipality for the road in question and on the basis of that representation, the Municipality has passed the impugned resolution and proposed for variation in the Development Plan for the proposed road. He has submitted that the action on the part of the Municipality is within its domain and it is pending before the Government. He has also submitted that the impugned resolution passed by the Municipality is under the provision of the Gujarat Municipalities Act and, therefore, if the petitioner has any grievance against such Resolution, then he can take the recourse under Section 258 of the Gujarat Municipalities Act and there is effective and efficacious remedy available to him. Mr. Kapadia has also submitted that even under Section 6(b) of the Town Planning Act, there is alternative remedy available to the petitioner. He has submitted that without recourse to that alternative remedy available to the petitioner, the present petition is not maintainable and

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deserves to be dismissed.

12. Mr. Kapadia has also referred to the earlier declaration of petitioner filed in NA permission in the year 1993. He has submitted that the revised NA now has been rejected by hte Collector on the basis of the Government Resolution and, therefore, even if any right of the petitioner is prejudiced, then he can challenge it before the Government by way of revision and in that case also there is alternative remedy available to the petitioner. He has submitted that the challenge in the petitioner is premature. He has placed reliance under provisions of Section 5, 6 and 12 of the Town Planning Act. He has also submitted that in present case, the suit is pending on the same fact in the competent Court and as there are disputed questions of facts involved, the petition under Article 226 of the Constitution of India may not be entertained and be dismissed. He has relied upon the decision in the case of Assistant Commissioner of Sales Tax and Others v. Commercial Steel Limited, reported in 2021 SCC Online SC 884 , wherein in Para-11, it has been observed as under:

"11. The respondent had as statutory remedy under Section

107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:

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(i) a breach of fundamental rights;

(ii) a violation of the principles of natural justice;

(iii) an excess of jurisdiction; or

(iv) a challenge to the vires of the statute or delegated legislation."

13. In rejoinder, Mr. Shalin Mehta, learned Senior Counsel for the petitioner has submitted that in the impugned Resolution by the Municipality, there is no mention of any words of variation. He has submitted that no variation has taken place and mere proposal of variation does not mean that final scheme be stopped. He has also submitted that since the Collector has passed the Order pending the petition and the order of the Collector has been challenged by way of amendment, now there is no question of any availability of any alternative remedy. He has submitted that when there is clear breach of fundamental rights of the petitioner, the availability of efficacious alternative efficacious remedy is not a ground for rejection of the writ- petition under Article 226 of the Constitution of India. He has also submitted that this is simply a question of passing of Resolution and proposed road, which was earlier came to be cancelled by this Court, and therefore, there is no need of any detailed inquiry and there is no disputed question of facts involved in this matter. He has submitted that revised NA permission is required to be granted first. Mr. Mehta has submitted that considering the factual aspect of this case and the fact that earlier twice the proposed road has been

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deleted and there is no mention of any variation in the final plan, exercise of power by the Municipality in passing the impugned Resolution is dehors the Act and it is a colourable exercise of power. He has submitted that even if the Resolution is pending before the State Government, in view of the earlier decision of this Court, the present petition be allowed and to direct the concerned Authority to sanction the revised NA permission to the petitioner for residential purpose.

14. Having considered the submissions made on behalf of both the sides coupled with the materials placed on record and the decisions cited at bar, it is crystal clear that earlier the Coordinate Bench of this High Court vide Order dated 18.11.2010 passed in SCA No. 7065/1994 has quashed and set-aside the Notification dated 25.5.1994 so far as it impliedly proposes and/ or sanctions and/ or approves the proposed road passing through land bearing revenue survey Nos. 102, 103, 104, 106 and 141 of the petitioners thereof. Thus, the road proposed from these Survey Numbers in 1994 came to be quashed by this Court. A copy of the judgment is placed at Page-47 to 57. It appears from the order that as there was shifting of bus-stand outside the City on the National Highway, it was submitted that there was no need for proposed road. It also appears from the material that vide communication dated 21.5.2012 of the Deesa Nagar Palika, it was informed to the Town Planning

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Officer regarding the order passed by this Court in the aforesaid Petition. It also appears from the Notification dated 31.7.2015 (paper-book page-72) that the Government proposed the modified Development Plan under Section 17 of the Act and in Item No. 5 thereof of deletion of 15 mtrs wide existing road marked as "D-D1" passing through Revenue Survey No. 103 and 104 of the village Deesa and the land thus released, to be designated for relevant Zone. It also appears from the Notification dated 7.1.2016 wherein also the same fact is reflected.

14.1 it also appears from the documents produced in this matter relating to the Civil Suit filed by the private Respondent Rameshkumar Kasturji Sundesha before the Civil Court at Deesa being Regular Civil Suit No. 123 of 2016 that the Deesa Nagar Palika at the relevant time has filed written statement Exh-25 wherein it has specifically stated that as per the order of this Court, a proposed 30 mtrs road was deleted and it was shown as residential place. It is also averred therein by the Nagar Palika that the representation has been received against the Notification dated 31.7.2015 by the Nagar Palika from the people of the residents and it has been sent to the Government by the Nagar Palika.

15. Now, it is undisputed fact that by the impugned Resolution, the Nagar Palika has proposed the road from the land in question of the petitioner and said Resolution has been

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sent to the Government for implementation. It is undisputed fact that the said proposal is still pending with the Government. It is also admitted that the petitioner had earlier applied for NA permission for revised residential purpose for the land in question to the Collector and the Collector has filed the same on the ground that in view of the Government decisions, now the said power of granting NA permission is vested in the concerned Authority and the Collector has no domain over the subject matter.

16. Now, considering this admitted facts, it is clear that as per the provisions of Gujarat Town Planning & Urban Development Act, 1976, under Section 5, the Government is authorized to constitute a authority for area development. Under Section 6, the State Government may instead of constituting Area Development Authority, has power to designate a local authority as Area Development Authority. In view of this provision, in the present case, there is no dispute as to facts that Deesa Municipality has been declared as Area Development Authority.

17. As per Section 12 of the Act, provisions regarding the contention regarding the Draft Development Plan has been made, wherein various categories have been shown which includes that proposal could be made for designation of area for any purpose like road, Highways, Parkways, water- supply, drainage, etc., Section 13 of the Act provides for

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publication of the Draft Development Plan. As per this section, it is incumbent on the part of the authority concerned to public in Official Gazette, along with a Notice in a prescribed manner, inviting suggestion or objections, from any person with respect to the Development Plan within a period of 2 months from the date of its publication. As per Section 14, suggestions for objections received by the authority has to be considered by the concerned Authority. In view of Section 16 of the Act, after publication of a Draft Plan, and considering the objections and suggestions thereof, the concerned authority or the Officer concerned, has to submit a Draft Development Plan to the State Government for its sanction. Section 17 is regarding power of the State Government to sanction Draft Development Plan. Under Section 19, variation of final Development Plan is permissible.

18. At this juncture, it is worthwhile to reproduce Section 19 of the Act, which reads as under:

"19:Variation of final development plan :- (1) If on a proposal from an area development authority in that behalf or otherwise, the State Government is of opinion that it is necessary in the public interest to make any variation in the final development plan (hereinafter referred to as variation), it shall publish in the Official Gazette,

(a) the variation proposed in the final development plan,

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(b) the amendment, if any, in the regulations, and

(c) the approximate cost, if any, involved in the acquisition of land, which by virtue of the variation would be reserved for a public purpose,

alongwith a notice, inviting a suggestions or objections from any person with respect to the variation within a period of two month from the date of publication of the variation.

(2) After considering the suggestions or objections, if any, received under sub-section (1) within the period specified therein and after consulting the area development authority in a case where the variation is not proposed by that authority, the State Government may, by notification, sanction the variation with or without modifications, as it may consider fit to do and such variation shall come into force on such date as may be specified in the notification. (3)

(3) From the date of coming into force of the variation, the provisions of this Act shall apply to such variation, as they apply to a final development plan.

(4) If any person who is affected by such variation has incurred any expenditure in complying with the final development plan as it existed before such variation, such person shall be entitled to received compensation, -

(i) where the variation is made on the proposal of an area development authority, from that authority, and

(ii) in any other case, from the State Government, if such expenditure is rendered abortive by reason of the variation of the plan."

19. In view of the aforesaid provisions under Section 19, variation in final Development Plan is permissible. At his

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juncture, it is also worthwhile to refer to Section 70 and 71 of the Gujarat Town Planning & Urban Development Act, 1976, which read as under:

"70. Power to vary scheme on ground of error, irregularity or informality -

(1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme.

(2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial the State Government shall publish a draft of such variation in the prescribed manner.

(3) The draft variation published under sub-section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of sub- section (3) of Section 40, the draft variation shall also contain such other particulars as may be prescribed.

(4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours.

(5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to

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the State Government through the Collector and send a copy thereof to the appropriate authority.

(6) After receiving the objections under sub-section (5), the State Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification -

(a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the State Government, or

(b) make the variation with or without modification, or

(c) refuse to make the variation.

(7) From the date of the notification making the variation, with or without modification, such variation shall take effect as it were incorporated in the scheme."

Section 70-A. Variation of Town Planning Scheme for land allotted for public purpose.- If at any time after the final town planning scheme comes into force, the appropriate authority is of the opinion that the purpose for which any land is allotted in such scheme under any of the paragraphs (ii) and (iii) of sub- clause (a) of clause (jj) of sub-section (3) of Section 40 requires to be changed to any other purpose specified in any of the said paragraphs, the appropriate authority may make such change after following the procedure relating to amendment of regulations, specified in Section 72 as if such changes were an amendment of regulations.

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Section 71. Notwithstanding anything contained in Section 70, a town planning scheme at any time be varied by a subsequent scheme made, published and sanctioned in accordance with the provisions of this Act."

20. Considering the provisions of Town Planning Act, 1976, it is crystal clear power has been vested with the State Government of variation of any Development Plan even if it is once made final. There is no restrictions over the power of the Government in regard to making variation in the final Scheme.

21. Learned advocate Mr. Kapadia for the private respondents has placed reliance on Section 6(B) of the Town Planning Act for his submission that alternative remedy is available under this Section and the petitioner has to apply to the Collector for suspension of the resolution in question. It is worthwhile to reproduce Section 6(B) of the Act, which runs as under:

"6-B. Powers of Collector to suspend execution of order, etc. Of appropriate authority:- (1) A copy of every order, resolution or decision of the appropriate authority (other than the Urban Development Authority) shall be sent to the Collector of the district.

"(2) If, in the opinion of the Collector, the execution of any order, resolution or decision of an appropriate authority or the doing of anything which is about to be done or is being done by or on

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behalf of an appropriate authority is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of an appropriate authority is already commenced or completed, direct an appropriate authority to restore the position in which it was before the commencement of such work.

(3) When the Collector makes any order under this section, he shall forthwith forward to any appropriate authority affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government alongwith copies of such order and statement.

(4) Against the order made by the Collector under sub- section (2), the appropriate authority or any person affected thereby may prefer an appeal to the State Government withint thirty days from the date on which it receives a copy of the order. The State Government may on such appeal rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify:

Provided that the order shall not be revised, modified or confirmed by the State Government without giving the appropriate authority or, as the case may be, person affected thereby reasonable opportunity of showing cause against the order."

22. In view of the aforesaid provision, it is clear that the Authority vested with the Collector on the basis of the copy

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of the resolution or order send by the authority to him, power under Section 6(b) to the Collector is suo-motu power. It does not give any right to the private party to approach the Collector for suspension or execution of such order of the appropriate Authority. Therefore, the submissions made on behalf of private respondents regarding the alternative remedy under Section 6(b) of the Town Planning Act is not acceptable.

23. One of the submissions on behalf of respondent is also regarding the availability of the alternative remedy under the provisions of the Municipalities Act for challenging the Resolution in question before the concerned Authority. It is pertinent to note that by the impugned resolution, the Municipality is not entitled to ipso-facto implement the said Resolution. The Resolution in question is only a step necessary for getting sanction of revised Development Plan under the provisions of the Town Planning Act, 1976 from the Government. Thus, ultimately the Government could decide as to whether the proposed revised Development Plan is sanctioned or not under the provisions of Town Planning Act , 1976, the decision of the Government would be under the Town Planning Act, 1976 and not under the Gujarat Municipalities Act and, therefore, the submission regarding the availability of the alternative remedy under the provisions of Municipalities Act is also not tenable.

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24. Now, considering the facts of this case, in the earlier litigation this Court has quashed and set aside the Notification of 1994 proposing the road from the land of the various Survey Numbers, which included the land of the petitioner. But, there was no restrictions placed upon the Government to the effect that the Government shall not make any further variation in the final plan. As observed earlier, under Sections 70 and 71 of the Town Planning Act, 1976, the Government can always make any necessary change, variation and revise Development Scheme of the area. When there is a statutory provisions empowering the Government to vary the earlier final plan, the Court cannot restrict the statutory power of the Government. It is for the Government to decide as to whether, there is necessity for the public at large to make variation in the earlier final plan or not. It may not be necessary to make any provisions of road, etc., in past. However, at the same time, it cannot be said that same facts and circumstances will remain unchanged. Change is the rule of nature. The entire nature is changing moment by moment. Nothing is static. Therefore, if there is some necessity exists for the public good, it is always for the concerned Authority, having statutory power under the concerned statutory, to make necessary arrangement or changes in the earlier development plan, which might be finalized in distance past. If the concerned authority proposes such variation, then a individual cannot object to it, as ultimately the

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interest of the public at large has to be achieved and in doing so, if right of some one is subverged, then it cannot be said to be an encroachment upon the right of that person.

25. Now, considering the facts of the present case, the question is still pending before the State Government and it is for the State Government to decide as to whether the proposed road be provided in a Plan or not. Further, when learned Collector has already filed the application of the petitioner on the ground that in view of the Policy of the Government, power to sanction revised NA is lying with the Urban Authority, the petitioner has to approach the concerned authority. Now, admittedly, in this case, the petitioner has not approached the concerned local urban authority for sanction of revised plan, even after order passed by the Collector concerned.

26. In view of the aforesaid facts and circumstances of the case, this Court is of the considered opinion that since the matter is pending with the Government, the petition deserves to be dismissed at this stage with a liberty to the petitioner to approach the appropriate authority in case adverse order is passed against the petitioner.

27. In view of the above, the present petition stands dismissed.

Liberty is reserved to the petitioner to take appropriate

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legal action before appropriate forum, if any adverse order is passed by the Government in respect to the impugned Resolution as passed by Deesa Municipality .

No order as to costs. Direct Service is permitted.

(DR. A. P. THAKER, J) SAJ GEORGE