Gujarat High Court
M/S Heaven Corporation vs State Of Gujarat on 10 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8210 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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M/S HEAVEN CORPORATION
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HARSHIT TOLIA, LD. SENIOR. ADVOCATE WITH MR MJ MEHTA
(5797) for the Petitioner(s) No. 1
MR NIRAD D BUCH (4000) for the Petitioner(s) No. 1
MR SAURABH J MEHTA (2170) for the Petitioner(s) No. 1
MRS. BHAVINI N. BUCH (5403) for the Petitioner(s) No. 1
MR KAUSHAL D PANDYA (2905) for the Respondent(s) No. 2,3,4
MR ROHAN RAVAL, LD.AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 10/02/2025
ORAL JUDGMENT
1. Rule. Learned advocate Mr.Kaushal Pandya waives service
of notice of Rule on behalf of respondent Nos.2 to 4 and
learned Assistant Government Pleader Mr.Rohan Raval waives
service of notice of Rule on behalf of respondent No.1.
2. This petition is taken for hearing as priority was sought
by learned advocate for the petitioner. At the outset, learned
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advocate Mr. Kaushal Pandya for respondent- corporation
requested that in view of pendency of Special Civil Application
No.4526 of 2022, this petition may be heard along with that
matter because in Special Civil Application No.4526 of 2022,
the respondent corporation has filed its reply and they are
opposing variation sought by the petitioner therein. The
request made by learned advocate for the Corporation was
resisted by learned senior advocate Mr. Tolia, for the petitioner
submitting that even otherwise also, the impugned order dated
25.04.2024 is erroneous and deserves to be quashed and set-
aside. Further, there is no connection between two petitions.
Considering the submissions of Learned Senior Advocate for the
petitioner, with the consent of learned advocate for the
respective parties, the matter is taken up for final hearing.
3. The petition is filed with the following prayers:
"[A] The Hon'ble Court pleased to admit and allow this petition;
[B] The Hon'ble Court may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
quashing and setting aside the impugned communication
dated 25/04/2024 (AT ANNEXURE.A), and further be pleased
to command the Respondent No. 2 to grant permission to
the petitioner develop the land in question forthwith in
terms of the layout plan;
[C] Pending admission hearing and final disposal of this petition,
the Hon'ble Court to be pleased to restrain the respondent,
their agents, servants, representatives, employees, officers
from taking any coercive measure against development of the
land as per the layout plan in respect of the land in question
and be pleased to restrain them from taking any coercive
measures in relation to the notice dated 06/05/2024 at
ANNEEXURE.A;
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[D] The Hon'ble Court be pleased to grant such other and further
relief as may be deemed fit in the interest of justice;"
4. Brief facts, referred in the petition, are as under:
4.1 The petitioner is owner of 3301 sq.mtrs. of land out of
total 7176 sq.mtrs. of land bearing Final Plot No.10, in Town
Planning Scheme No.38 (Variav), (the land admeasuring 3301
sq.mtrs. hereinafter referred to as "the land in question").
4.2 It is case of the petitioner that the petitioner purchased
the land in question by registered sale deed dated 31.03.2023
bearing registration No.11420, from its original owner. Thus,
ownership of land in question by the petitioner is not in
dispute. Pursuant to its ownership, the petitioner preferred an
application seeking development permission and the same was
denied by an order dated 25.04.2024. Aggrieved by denial of
development permission, this petition is filed.
5. Heard learned Senior Advocate Mr. Harshit Tolia assisted
by learned advocate Mr. M.J.Mehta for the petitioner, learned
Assistant Government Pleader Mr.Rohan Raval for respondent
No.1 and learned advocate Mr.Kaushal Pandya for respondent
No.2 to 4.
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6. Learned Senior Advocate Mr.Harshit Tolia for the
petitioner submitted that order dated 25.04.2024 at Annexure
"A" is erroneous because undisputedly the petitioner is lawful
owner of 3301 sq.mtrs. of land by registered sale deed in his
favour. Pursuant to its ownership, the petitioner preferred an
application seeking development permission and the same was
denied. The rejection of development permission is contrary to
provisions of Law. Moreover, Validation Certificate dated
25.10.2023 is in favour of original owner of the land, wherein
total area of 7176 sq.mtrs. is referred. Out of 7176 sq.mtrs.,
the petitioner had purchased 3301 sq.mtrs. of land and
therefore, ownership of the petitioner for 3301 sq.mtrs. of land
is not in dispute. Accordingly, the petitioner preferred an
application only for development of 3301 sq.mtrs. of land and
therefore, rejection by an order dated 25.04.2024 relying upon
the pendency of some other petition (SCA No.4526 of 2022)
where petitioner is not concerned, is of no consequence.
6.1 Learned Senior Advocate further submitted that out of
total 7176 sq.mtrs. of land, only portion of land is having
encroachment of residential premises. The encroachers have
preferred Special Civil Application No.4526 of 2022, wherein
this Court has granted status quo qua the construction already
existing on that area. This aspect has been clearly referred in
the Validation Certificate dated 25.10.2023. Therefore, rejection
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of development permission on 3301 sq.mtrs. of land being
illegal, deserves to be quashed and set aside.
6.2 Moreover, no law permits denial of development
permission, that too based on pendency of other proceedings.
Further, in SCA 4526 of 2022, the petitioners therein have
sought for variation in the Final Town Planning Scheme, where
scope of interference is very minimal. Therefore, rejection of
development permission by order dated 25.04.2024 being
erroneous, deserves to be quashed and set aside.
6.3 Further, pursuant to the application preferred by the
petitioner seeking development permission, undertaking as
required was filed and therefore also, ground of pendency of
petition is no more a good ground and hence, application of
the petitioner seeking development permission needs to be
allowed.
6.4 Learned Senior Advocate submitted that, the Town
Planning Scheme being a regulatory statute, rejection based on
the said statute being contrary to the petitioner's right to
property, deserves to be quashed and set aside. In support,
Learned Senior Advocate relied upon decision of the Hon'ble
Supreme Court in the case of T. Vijayalakshmi and others V/s.
Town Planning Member and another reported in (2006) 8 SCC
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502, wherein it is held as under:
"13. Town Planning legislations are regulatory in nature. The right
to property of a person would include a right to construct a
building. Such a right, however, can be restricted by reason of a
legislation. In terms of the provisions of the Karnataka Town and
Country Planning Act, a comprehensive development plan was
prepared. It indisputably is still in force. Whether the amendments
to the said comprehensive development plan as proposed by the
Authority would ultimately be accepted by the State or a not is
uncertain. It is yet to apply its mind. Amendments to a
development plan must conform to the provisions of the Act. As
noticed hereinbefore, the State has called for objection from the
citizens. Ecological balance no doubt is required to be maintained
and the courts while interpreting a statute should bestow serious
consideration in this behalf, but ecological aspects, it is trite, are
ordinarily a part of the town planning legislation. If in the
legislation itself or in the statute governing the field, ecological
aspects have not been taken into consideration keeping in view the
future need, the State and the Authority must take the blame
therefor. We must assume that these aspects of the matter were
taken into consideration by the Authority and the State. But the
rights of the parties cannot be intermeddled with so long as an
appropriate amendment in the legislation is not brought into force.
14. Nobody questioned the validity of the existing law. The High
Court has not held that the existing laws are ultra vires. It merely
proceeded on the assumption that the law which may be brought
into the statute-book would be more eco-friendly.
15. The law in this behalf is explicit. Right of a person to
construct residential houses in the residential area is a valuable
right. The said right can only be regulated in terms of a regulatory
statute but unless there exists a clear provision the same cannot be
taken away. It is also a trite law that the building plans are
required to be dealt with in terms of the existing law.
Determination of such a question cannot be postponed far less
taken away. Doctrine of legitimate expectation in a case of this
nature would have a role to play."
6.5 Reliance was also placed on the decision in the case of
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B.K. Ravichandra and others V/s. Union of India and others
reported in (2021) 14 SCC 703, wherein it is held as under:- :
"30. Other judgments of this court have also highlighted the importance
of the right under Article 300-A, in the context of regulatory laws and
enactments, which do not directly result in expropriation or acquisition,
but rather, in an oblique and indirect fashion, block the right to
enjoyment of properties, underlining that the essential theme of Article
300-A is unauthorized deprivation, which would result in an indefinite
suspension of the right to property. The court stressed that the law (of
development or town planning, of any other such enactment) should be
explicit about the nature and effect of the deprivation, expressing the
intention to do so. Therefore, in T. Vijayalakshmi v. Town Planning
Member, this court observed that:
"13. Town Planning legislations are regulatory in nature. The right
to property of a person would include a right to construct a
building. Such a right, however, can be restricted by reason of a
legislation. In terms of the provisions of the Karnataka Town and
Country Planning Act, a comprehensive development plan was
prepared. It indisputably is still in force. Whether the amendments
to the said comprehensive development plan as proposed by the
Authority would ultimately be accepted by the State or a not is
uncertain. It is yet to apply its mind. Amendments to a
development plan must conform to the provisions of the Act. As
noticed hereinbefore, the State has called for objection from the
citizens. Ecological balance no doubt is required to be maintained
and the courts while interpreting a statute should bestow serious
consideration in this behalf, but ecological aspects, it is trite, are
ordinarily a part of the town planning legislation. If in the
legislation itself or in the statute governing the field, ecological
aspects have not been taken into consideration keeping in view the
future need, the State and the Authority must take the blame
therefor. We must assume that these aspects of the matter were
taken into consideration by the Authority and the State. But the
rights of the parties cannot be intermeddled with so long as an
appropriate amendment in the legislation is not brought into force.
* * *
15. The law in this behalf is explicit. Right of a person to
construct residential houses in the residential area is a valuable
right. The said right can only be regulated in terms of a regulatory
statute but unless there exists a clear provision the same cannot be
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taken away..." (emphasis supplied)
This court has also recognized that regulatory laws, which have the
effect of impacting the right to property, should be strictly
construed."
7. Opposing the petition, learned advocate Mr. Kaushal
Pandya submitted that it is not in dispute that the petitioner is
owner of land in question admeasuring 3301 sq.mtrs. From
"Form-F", it is evident that against original plot No.10, having
area of 11049 sq.mtrs., the owner was allotted 7176 sq.mtrs.
as final plot. Out of this 7176 sq. mtrs. of land, which was
allotted to original owner (pursuant to finalization of Town
Planning Scheme), the petitioner purchased 3301 sq.mtrs. of
land during pendency of Special Civil Application No.4526 of
2022.
8. Further, pursuant to finalization of Town Planning
Scheme No.38 (Variav), occupiers of small portion of land have
preferred petition bearing Special Civil Application No.4526 of
2022 on the ground that they are in possession of the subject
premises and having their residential premises since many
years and therefore, State Government may be directed to
make variation in the Town Planning Scheme. In the said
petition, this court has issued Notice and granted status quo to
be maintained by both the parties. Therefore, considering the
order passed by this court in Special Civil Application No.4526
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of 2022 dated 01.03.2022, the validation certificate was issued
in favour of original owner of Final Plot No.10 having 7176
sq.mtrs. of land wherein, 287 sq.mtrs. of land was not
considered and validation certificate was issued for 6889
sq.mtrs. (7176 sq.mtrs - 287 sq.mtrs). Thus, the validation
certificate was issued for 6889 sq. mtrs. of total area of Final
Plot No.10 to the original owner.
9. Further, undisputedly the petitioner after having
knowledge of order of this court dated 01.03.2022 in Special
Civil Application No.4526 of 2022 has purchased a land of
3301 sq.mtrs. from 6889 sq.mtrs. by registered sale deed dated
31.03.2023. Thus, the petitioner was aware about pendency of
litigation and status quo granted by this Court.
10. Learned Advocate for corporation further submitted that
since the application seeking development permission was
required to be considered for total area of land and in this
case, total area of land being 6889 sq.mtrs., in absence of any
sub-plotting, it would be difficult for the corporation to give
development permission only for 3301 sq.mtrs. of land and
therefore, the same was denied by an order dated 25.04.2024.
Thus, there being no illegality, the present petition deserves to
be rejected.
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11. Considered the submissions. Upon revisitation of facts, it
is noticed that pursuant to finalization of Town Planning
Scheme No.38 (Variav), Final Plot No.10 and Form-F was
issued in favour of original owner. Form-K (Page-93) refers to
survey No.2/2/2 of total 11049 sq.mtrs. of land wherein,
against original plot of 11049 sq.mtrs. of land, original owner
was allotted 7176 sq.mtrs. of land. Since the original plot was
having construction by some of the occupiers having their
residential accommodation, they preferred Special Civil
Application No.4526 of 2022 seeking variation in the Town
Planning Scheme. It is their case in Special Civil Application
No.4526 of 2022 that since they are residing in some portion
of 7176 sq.mtrs. of land, the State may be directed to have
variation in the Scheme, wherein, this Court has issued Notice
and granted status quo. This aspect is once again more evident
from the Validation Certificate dated 25.10.2023 (Page-73),
which is issued in favour of original land owner. It is true that
Validation Certificate is to be issued for the subject land,
however, it cannot be ignored that the said Validation
Certificate records total area of land of 7176 sq.mtrs. and
considering the pendency of Special Civil Application No.4526
of 2022 and status quo granted by this court for the
construction on land for 287 sq. mtrs, the authority issued
Validation Certificate for 6889 sq.mtrs. of land. The said
Validation Certificate also records the pendency of the present
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petition at Clause-5. This court also noticed that during
pendency of this petition and after having come to know about
the status quo granted, the present petitioner purchased 3301
sq.mtrs. of land, out of 6889 sq.mtrs. Therefore, in the opinion
of this Court, the petitioner was aware about pendency of the
present petition and status quo granted by this court.
12. Moreover, the Validation Certificate dated 25.10.2023
refers to ownership of total area of 7176 sq.mtrs. by two
owners i.e. original owner as well as the present petitioner.
Therefore, the submission on behalf of corporation that in
absence of sub-plotting, the entire area is to be considered for
development, merits acceptance.
13. Noticing the above facts, in the opinion of this Court, if
the development permission denied by respondent corporation
by order dated 25.04.2024 is quashed and set aside and if the
application of the petitioner is directed to be considered, it
would affect the outcome of Special Civil Application No.4526
of 2022, wherein this Court has issued Notice and directed
status quo and is currently pending further adjudication.
14. In relation to decision relied upon by learned advocate
for the petitioner in the case of T. Vijayalakshmi and others
(supra), it is noticed that there is no dispute that the Town
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Planning regulations are regulatory in nature and the right to
property of person would include right to construct the
building. Moreover, there is only denial of development
permission "at this stage". The order dated 25.04.2024 refers
that in view of pendency of Special Civil Application No.4526
of 2022, at this stage, the application cannot be considered
and therefore, reliance placed on the above decision, in the
opinion of this Court is erroneous.
15. In the case of B.K.Ravichandra and others (supra), this
court noticed that right under Article 300A of the Constitution
of India is an important right. However, the same is not
applicable to the facts of the present case since the
development permission is denied "at this stage". Therefore, in
the opinion of this court, the said decision would not come to
the aid of the Petitioner.
16. Further, in Special Civil Application No.4526 of 2022,
original owner has preferred an application to join them as
party respondent and that application was allowed by joining
them as party. Original owner thereafter sold 3301 sq.mtrs. of
land to the present petitioner and admittedly, they are aware
about the pending proceedings.
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17. Therefore, in the opinion of this court, the order dated
25.04.2024 which was passed considering the entirety of facts,
particularly ownership of land by two parties, this court does
not find any error in the order dated 25.04.2024 and therefore,
the present petition is rejected. Rule discharged. No order as
to cost.
sd/-
(MAUNA M. BHATT,J)
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