Gujarat High Court
Dharmadev Infrastructure Pvt Ltd vs Dharmendrakumar Dahyabhai Patel on 23 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/285/2012 ORDER DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 285 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 2054 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2012
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2013
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2013
In R/LETTERS PATENT APPEAL NO. 285 of 2012
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2025
In R/LETTERS PATENT APPEAL NO. 285 of 2012
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DHARMADEV INFRASTRUCTURE PVT LTD
Versus
DHARMENDRAKUMAR DAHYABHAI PATEL & ORS.
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Appearance:
MR. MASOOM K. SHAH, MR DHRUVIN N DOSSANI(10528) for the Appellant(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 2
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1
MR. KAMAL TRIVEDI, AG WITH MR. VINAY B. VISHEN, AGP FOR RESPNONDENT
NOS. 3 AND 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 23/07/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
This intra-court appeal has been placed before us after
remittal of the matter by the Apex Court vide judgment and
order dated 14.11.2024 passed in SLP(C) Nos. 4450-4451 of
2014, which was directed against the order dated 10.04.2013
of dismissal of this appeal and the order dated 13.09.2013 of
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rejection of the review application by appellate court.
2. The SLP was directed against the judgment and order
dated 15.03.2011 passed by the learned single Judge, which
was affirmed by the judgment and order dated 10.04.2013
passed in this appeal.
3. From a perusal of the order dated 14.11.2024 passed by
the Apex Court, pertinent is to note that when the SLP came up
for argument before the Apex Court, a statement was made by
the learned Solicitor General appearing on behalf of the
Ahmedabad Urban Development Authority (AUDA) that the
learned single Judge while setting aside the development
permission granted on 01.07.2009 had not taken note of the
provisions of Section 49 of the Gujarat Town Planning and
Urban Development Act, 1976, which was crucial to the
controversy involved in the writ petition. Taking note of the
said statement, the Apex Court while setting aside the order
dated 10.04.2013 and 13.09.2013 of dismissal of the present
appeal and of the review application, has remitted the matter
back in the following manner :-
" Heard learned counsel and learned Solicitor General
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appearing for the parties.
These matters are pending before this Court since the year
2014. The petitioner before this Court had challenged the orders
passed by the Gujarat High Court dated 10.04.2013 & 13.09.2013
whereby confirming the order dated dated 15.03.2011 passed by
the learned single Judge of the high Court. Today, when these
matters were to be argued before this Court, Mr. Tushar Mehta,
learned solicitor general appearing for the Ahmedabad Urban
Development Authority-respondent No.2 has made a very fair
submission that what has not been considered either by the learned
Single Judge or the Division bench of the Gujarat High Court in
Letters Patent Appeal is Section 49 of the Gujarat Town Planning
and Urban Development Act, 1976 (hereinafter called 'the Act')
which is absolutely crucial in the matter and has in fact been relied
upon in similar matters by other judgments. Under these
circumstances, this Court may remand the matters back to the
Gujarat High Court for consideration afresh in accordance with law,
particularly after consideration of the aforesaid provision of the Act.
Mr. Mohit D. Ram, learned counsel appearing for the petitioner also
has no objection to this suggestion and has agreed to that.
Accordingly, we set aside the orders of the high Court dated
10.04.2013 & 13.09.2013 and remand the matters back to the high
Court for fresh consideration as referred above in this order.
We also make it clear that the petitioner will also implead the
State of Gujarat as party before the High Court and also other
necessary parties.
Meanwhile, the interim order(s) granted in favour of the
petitioner shall continue, till a fresh consideration is made in the
case by the Gujarat High Court, as indicated above.
The present petitions are disposed of in the above terms.
Pending applications(s), if any shall also stand disposed of."
4. Having heard the learned counsels appearing for the
parties, pertinent is to note that the writ petition namely
Special Civil Application No. 2054 of 2010 was filed by the
respondent No.1 herein namely the original owner of the plot
namely Block No. 66/B (old Survey No. 76/3) admeasuring 24
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Gunthas i.e. 2428 sq.mtrs. of village Bopal, Taluka Daskroi.
The challenge was to the development permission granted on
01.07.2009 by the AUDA in favour of the respondent No.2
before the writ court, namely the appellant herein. The main
contention of the petitioner/respondent No.1 before the writ
court was that the action of AUDA to issue development
permission in anticipation of sanction of the draft T.P. Scheme
by keeping open the right of the petitioner to challenge size,
area, location of final plot, which is likely to be allotted under
the TP Scheme, was wholly illegal. The contention of the
petitioner was that till the final plot was allotted in the T.P.
Scheme with the sanction of the preliminary T.P. Scheme by
the State Government on the proposal of the Town Planning
officer, no development permission could have been given in
favour of the proposed allottee, namely the respondent No.2
before the writ court/appellant herein.
5. We may note that the draft T.P. Scheme was sanctioned
on 07.01.2009 and there is no dispute about the fact that the
final plot carved out in the Town Planning Scheme over which
the development permission was granted on 01.07.2009, has
finally been allotted in favour of the appellant herein, namely
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the respondent No.2 before the writ court, in the preliminary
T.P. Scheme sanctioned by the State Government on
10.06.2019.
6. As regards the order of the learned single Judge dated
15.03.2011 in setting aside the development permission
granted on 1.7.2009, pertinent is to note that on a challenge to
the decision of the Division Bench in dismissing this appeal
before the Apex Court, an interim order dated 10.02.2014 has
been passed in the following manner:-
"Delay condoned.
Issue notice.
In the meantime, the construction made by the petitioner shall not
be demolished.
Mr. S.C.Patel, learned counsel, accepts notice on behalf of
respondent No.1 and seeks time for filing counter affidavit. Let
counter affidavit on behalf of the said respondent be filed within
four weeks. Rejoinder affidavit, if any, may be filed within four
weeks thereafter."
7. By another order dated 01.08.2024, the operation of the
judgment of the Division Bench dated 10.04.2013, wherein the
decision of the learned single Judge dated 15.03.2021 had
merged, has also been stayed with the following order :-
"The operation of the impugned judgment is suspended.
List the matter for hearing in the second week of December, 2024."
8. With the passage of time during the pendency of the
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Special Leave Petition before the Apex Court, admittedly
Preliminary T.P. Scheme has been sanctioned by the State
Government, wherein the final plot proposed in favour of the
appellant, over which the development work has been carried
out with the grant of development permission dated 1.7.2009,
has been allotted in favour of the appellant itself.
9. Taking note of the above facts, we are of the considered
view that the issues raised in the writ petition, subject matter
of consideration before us in the present appeal about the
action of the AUDA in granting development permission after
sanction of the draft T.P. Scheme, without allotment of final
plot in the preliminary T.P. Scheme, has become academic.
The issues pertaining to grant of development permission at
the stage of Section 49 of the Act, 1976, in favour of the
proposed allottee, are, therefore, not required to be looked
into in view of the subsequent development in this matter.
10. With the above, while setting aside the judgment and
order dated 15.03.2011 passed by the learned single Judge on
the limited observations made hereinabove, the present
appeal stands allowed.
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11. We may clarify that the limited issue, subject matter of
consideration before this Court, was about the grant of
development permission by AUDA before sanction of the
preliminary T.P. scheme. All questions of law pertaining to the
interpretation or application of Section 49 of the Act, 1976 in
such a scenario, are left open to be agitated in an appropriate
case.
12. It is further clarified that this Court has not entered into
the merits of the case and the judgment passed by the learned
single Judge in view of the subsequent developments, and the
peculiar facts and circumstances of the case noted
hereinabove.
13. All the pending Civil Applications/Misc. Civil Application
stand disposed of, accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
C.M. JOSHI
