Gujarat High Court
Nilkant Park Vibhag-1 Co.Op. Housing ... vs State Of Gujarat on 2 July, 2025
NEUTRAL CITATION
C/SCA/2193/2001 JUDGMENT DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2193 of 2001
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2007
In
R/SPECIAL CIVIL APPLICATION NO. 2193 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
NO
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NILKANT PARK VIBHAG-1 CO.OP. HOUSING SOCIETY LTD. & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
ABATED for the Petitioner(s) No. 6
ADVOCATE NAME DELETED for the Petitioner(s) No. 9
PETITION/APPEAL WITHDRAWN/DISMISSED for the Petitioner(s) No. 8
MR G. M. JOSHI, SENIOR ADVOCATE with
MR VYOM H SHAH(9387) for the Petitioner(s) No.
1,10,11,12,13,14,15,2,3,4,5,7
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1 & 3
MR GAURAV CHUDASAMA(5660) for the Respondent(s) No. 6
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 2
MR RR MARSHALL(445) for the Respondent(s) No.
10,11,12,13,14,4,5,7,8,9
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CORAM: HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 02/07/2025
ORAL JUDGMENT
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1. This petition is filed challenging notification dated
12.07.2011 (Annexure-R10, Page No. 93), in relation to Final
Plot No. 19 qua the variation made in the petitioner's property
in the sanctioned Town Planning Scheme No. 16 (Kapodara
Surat).
2. The facts in brief as referred in the petition are as under:
-
The petitioners herein are owners and occupiers of the
residential Society situated at Block No. 20 Kapodara which is
forming part of Town Planning Scheme No. 16 (Kapodara
Surat). It is case of the petitioners that they are occupiers of
Final Plot No. 19 which is known as Nilkant Park Vibhag 1. It
is case of the petitioners that respondent Nos. 2 and 3 upon
variation of scheme shifted the 9 meters wide Town Planning
Road, under provisions of Section 71 r/w Section 41 of the
Gujarat Town Planning and Urban Development Act, 1976 (for
short 'the TP Act, 1976'). The action taken to vary the scheme
was with a malafide intention and in breach of principles of
natural justice and hence the same deserves to be quashed and
set aside.
2.1 It is further case of the petitioners that the petitioners
are owners and occupiers of land bearing Survey No. 18/1
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Final Plot No. 19 of Town Planning Scheme No. 16 (Kapodara
Surat). Earlier to ownership of the petitioners, the erstwhile
owner proposed to allot the land in question and the petitioner
Society decided to construct dwelling unit. The permission as
required under Section 29 of the TP Act, 1976 was sought. The
respondent - Corporation upon application of the petitioners
granted development permission by order dated 05.08.1989 and
accordingly the houses / dwelling units were constructed. The
petitioners are using the said premises since years.
2.2 It is case of the petitioners that while finalizing the Town
Planning Scheme No. 16 (Kapodara Surat) 9-meter road was
carved out from the land belonging to the original owner of
the petitioner Society and 12-meter town planning road was
also finalized on north side of the Society and accordingly the
final town planning scheme was sanctioned by State
Government on 16.12.1998. In other words, it is case of the
petitioners that earlier the State Government had sanctioned
the Town Planning Scheme No. 16 (Kapodara Surat) on
16.12.1998 having 9 meters and 12 meters road as shown in
the part plan. The said plan, the petitioners have annexed at
Annexure-A (Page No. 13).
2.3 It is further case of the petitioners that however, on
account of certain influences, variation in the scheme was
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proposed and pursuant to which a notice was issued in the
newspaper proposing variation. Objections were invited and the
petitioners objected to the same. It is main concern of the
petitioners that on account of variation which propose to shift
the 9-meter road from its part plan sanctioned on 16.12.1998,
the petitioners' houses are practically on the road side whereas
on the other side of the road there is a huge margin and there
would not be any effective purpose in shifting the road causing
sheer prejudice to the petitioners, leading the petitioners to file
this petition.
3. Heard learned Senior Advocate Mr. G. M. Joshi assisted
by learned advocate Mr. Vyom Shah for the petitioners,
learned Assistant Government Pleader Ms. Suman Motla for
respondent No. 1, learned advocate Mr. Kaushal Pandya for
respondent No. 2 - Corporation, learned advocate Mr. Gaurav
Chudasma for respondent No. 6 and learned advocate Mr. R.
R. Marshal for respondent Nos. 4, 5 and 7 to 14.
4. Learned Senior Advocate Mr. G. M. Joshi for the
petitioners' inviting attention of this Court to the map at
Annexure-A, Page No. 13 submitted that as can be seen from
the map that the petitioners are owners and occupiers of the
subject society and earlier there was 9-meter road abutting to
the other part of Society, however, without there being any
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reason the road has been shifted near to the petitioners'
residences. Since, the said variation was without any purpose
and just to favour some private individuals the petitioners
raised their grievances by raising their objections. However,
the said objections were not considered in its true perspective
and therefore the variation proposed deserves to be quashed
and set aside. Moreover, for the earlier objections raised,
learned Senior Advocate for the petitioners relied upon
Annexure-C (Page No. 15).
4.1 Learned Senior Advocate further submitted that as can be
seen from the affidavit of respondent - Corporation dated
12.12.2017, that without any valid reason the special
relaxation in margin area has been provided to Final Plot No.
19B and 19C to make the plot as a buildable plot. Learned
Senior Advocate submitted that this shows the malafide
intention on the part of respondent - Corporation that Final
Plot No. 19A, 19B and 19C admeasuring 8262 sq. mtrs., 751
sq. mtrs. and 238 sq. mtrs. respectively (in total 9215 sq.
mtrs.) allotted in lieu of Original Plot No. 19A admeasuring
9263 sq. mtrs. and Final Plot Nos. 19B and 19C. Therefore,
without any cause, the variation was done providing relaxation
to the other parties. Learned Senior Advocate further submitted
that so far as Plot Nos. 19B and 19C are concerned, no
evidence has been produced by respondent - Corporation to
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justify that there exists a structure and to save that structure
the variation has been proposed and thereafter sanctioned by
the State Government. Learned Senior Advocate therefore
submitted that since the variation is without any valid reason
causing prejudice to the petitioners and with a malafide
intention the same deserves to be quashed and set aside.
4.2 In relation to the procedure followed, learned Senior
Advocate submitted that earlier the petitioners were not heard
and after the order of this Court they have been provided an
opportunity of hearing and thereafter a decision dated
29.03.2008 was taken by the Town Planning Officer. However,
the order dated 29.03.2008 is erroneous because the variation
was sanctioned by the State Government and hence it is the
State Government who ought to have passed the order and
since the same is not done the variation deserves to be
quashed and set aside. In a nutshell, learned Senior Advocate
submitted that the proposed variation sanctioned by the State
Government vide notification is without any valid ground
deserves to be quashed and set aside.
5. Opposing the petition, learned advocate Mr. Kaushal
Pandya for respondent - Corporation invited attention of this
Court to various affidavits filed submitting that earlier vide
affidavit dated 02.05.2001 (Page No. 29), it was pointed out
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that the petitioners raised objections at various stages. The
variation was done after following the procedure as
contemplated under the provisions of the TP Act, 1976.
Referring to Paragraph No. 6 of the affidavit learned advocate
submitted that the intention was declared by the Corporation
to make scheme under Section 41(1) of the TP Act, 1976 and
accordingly a resolution was passed by the Town Planning
Committee on 26.5.2000 as Town Planning Scheme No. 16
(Kapodara Surat) (first variation). The said proposal was
published in a daily newspaper and accordingly a meeting was
held on 26.09.2000 for the purpose of giving understanding
about the proposal to the interested persons. Accordingly, a
Draft Town Planning Scheme was prepared under Section 41 of
the TP Act, 1976 and published in the Government Gazette on
25.02.2001. Publication of the Draft Town Planning Scheme
was also done in the newspaper on 27.02.2001. Upon
publication, since the Town Planning Scheme was required to
be sent to State Government for its sanction within a period of
90 days and the same could not be done on account of interim
relief granted by this Court. As per the proposed variation the
sifting of 9-meter Town Planning Road was part of the said
variation to which the petitioners were at liberty to raise the
objections.
5.1 Learned advocate further submitted that upon procedure
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being followed as stated hereinabove a resolution dated
27.02.1997 was passed by the Town Planning Committee
proposing shifting of 9-meter town planning road. Upon
proposal, the petitioner Society along with other affected
societies raised their objections and after consideration of the
objections of all affected persons the Town Planning Committee
vide Resolution No. 12 of 1999 dated 08.02.1999 resolved to
implement the earlier resolution dated 27.02.1997 and decided
to vary the scheme. Therefore, the contention raised that the
variation was taken without providing any opportunity of
hearing and in breach of principles of natural justice is
contrary to the facts on record. Moreover, as referred in the
affidavit, the decision to vary the scheme as per the resolution
dated 27.02.1997 was taken after visit by the Town Planning
Committee at the place and after personal visit it was
ascertained that the shifting of road would not cause any
damage particularly to the existing structures of the petitioner
Society.
5.2 Learned advocate further submitted that the contention
raised with regard to the malafide intention to favour some
third party is also misplaced because as stated in the affidavit
in Paragraph No. 9, upon variation a small strip has been
shifted and on account of area remained of less than 12 meters
there is no question of construction of shopping center because
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the shopping center requires additional space and the margin
as per the GDCR. Therefore, the allegations are beyond the
facts. Learned advocate Mr. Pandya therefore submitted that
the decision to vary the scheme vide resolution dated
27.02.1997 was after following the due procedure and
considering that no damage would cause to any of the affected
person.
5.3 Learned advocate Mr. Pandya further pointed out that
upon filing of affidavit by the respondent - Corporation, this
Court under order dated 03.08.2021 vacated the interim relief
by passing the following order: -
"Heard the Learned Advocate on Interim
Relief granted earlier is vacated. It is
however, clarified that the petitioner shall be
at liberty to lodge their objection against eh
proposed variation in the Town Planning
Scheme. The respondent Authority shall be at
liberty to proceed further with the proposed
variation notified under the impugned
notification. However, the proposed variation
if finally approved, shall not be implemented
without the express permission of this
Court."
5.4 Upon vacation of interim relief by this Court, the
Corporation initiated action for sending the proposal to the
State Government for sanctioning of variation. Learned
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advocate submitted that the affidavit of the State also supports
the case of respondent - Corporation that the proposal was
sent to the State Government after following due procedure.
Referring to the affidavit filed by the State Government,
learned advocate submitted that the said affidavit in
paragraphs 9 to 13 (page 59 to 65) refers to the procedure
followed by the Corporation.
5.5 Learned advocate Mr. Kaushal Pandya also relied upon
decision dated 29.03.2008 to submit that the said decision
records the procedure as well as the opportunity of hearing
provided to the petitioners and their objections considered.
From the tenure of the decision, it is evident that every
objection and the prejudice caused to the petitioners have been
considered. However, noticing that shifting of road is not
causing any damage or demolition to the petitioner's houses,
conscious decision was taken by the Corporation, sanctioned by
the State Government to vary the scheme. Learned advocate
submitted that since the scope of interference of this Court in
the sanction scheme being minimal no interference is required
at this stage, when the scheme is sanctioned by the State
Government after duly considering the objections of the
stakeholders.
5.6 In support of his submissions, learned advocate Mr.
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Pandya for respondent - Corporation relied upon the following
decisions: -
● In the case of M. M. P. Charitable Trust Thr Its
Managing Trustee v.s. State of Gujarat Through Secretary
reported in 2005 (4) GLR 3340 to submit that when the
expert body has taken a decision to vary the scheme for the
public purpose unless and until malafides being proved,
interference of this Court is minimal.
● In the case of Municipal Corporation for Greater Bombay
v.s. Advance Builders (India) Pvt. Limited reported in 1971
3 SCC 381 to submit that it is the statutory duty of the
Corporation to implement the scheme in its entirety and as
expeditiously as possible. (10, 12 and 13)
● In the case of Kashiberi wd./o Pitambar Devchand and
Another v.s. State of Gujarat and Another reported in 1989
2 GLH 246 to submit that once the preliminary scheme is
finalized by the State Government after consideration of the
objections, the scope of writ petition under Article 226 is
very minimal.
6. Learned Assistant Government Pleader Ms. Suman Motla
for respondent - State also relied upon the affidavits dated
24.09.2013 and 12.12.2017 (Page No. 58) to submit that the
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said affidavits state that the procedure under the provisions of
the TP Act, 1976 has been followed. The variation in the
Preliminary Town Planning Scheme was made after inviting
objections and the objections of the petitioners have been
specifically considered. The State as authority has considered
that no prejudice has been caused to the petitioners and it is
stated in the brief history of the Scheme that a decision has
been taken to sanction the scheme under notification dated
12.07.2011. Learned AGP further relied upon Form -F to
submit that against the original plot, final plot has been
allotted to the original owners of the land and thus there is no
illegal action as alleged in the petition and therefore the
petition deserves to be dismissed.
7. Considered the submissions and the documents on record.
From the submissions canvased on behalf of the petitioners and
the documents on record it is noticed that the petitioners have
preferred this petition mainly on two grounds:
a) That prior to sanctioning of variation in the Preliminary
Town Planning Scheme vide notification dated 12.07.2011
(Page No. 93) the procedure contemplated under the provisions
of the TP Act, 1976 was not followed because the petitioner's
objections were considered in its true perspective.
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b) Action taken to vary the Scheme is with malafide
intention to favour some third party.
8. Upon revisitation of facts, it is noticed that earlier the
Town Planning Scheme was proposed having 9-meter road
from the middle of Nilkant Park Society, which is subject
matter of present proceedings. It is noticed that the petitioners
are residents of Nilkant Park Society and on the other side of
the road also there is some portion of Nilkant Park Society.
Earlier 9-meter road was passing from the middle, and thus
this 9-meter road in admittedly internal road of the Petitioners'
Society. However, on account of some portion, which is likely
to be demolished on development of 9-meter road which is
evident from the affidavit filed by Surat Municipal Corporation
dated 02.05.2001, the proposal to shift the 9 meters road was
made by the Town Planning Committee vide resolution No. 8
of 1997 dated 27.02.1997. The decision to vary the Town
Planning Scheme was taken as the Town Planning Scheme No.
16 (Kapodara Surat) was not finally sanctioned by the State
Government. Accordingly, a resolution dated 11.06.1997 was
passed to implement the proposed variation and in turn the
objections from all concerned including the petitioner Society
were invited. Thereafter, upon consideration of objections a
Town Planning Committee vide resolution No. 12 of 1999
dated 08.02.1999 resolved to implement its resolution dated
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27.02.1997, which proposes variation by shifting of 9 meters
town planning road. From the affidavits, it is noticed that the
decision to implement the resolution dated 27.02.1997 was
taken after having personal visit of the site by the Town
Planning Committee. Upon personal visit it was considered by
the Town Planning Committee that on account of variation and
shifting of Town Planning Road on the western side of the plot
the existing construction are not affected.
9. Moreover, the apprehension of the petitioners that
variation was done to construct the shopping center is found
misplaced, because the open land was having area of less than
12 meters and therefore it was not possible to construct the
shopping center. In view of the said affidavit, in the opinion
of this Court that the contention raised on behalf of the
respondent that it was decided to accept variation as proposed
by resolution dated 27.02.1997, is for the public purposes
appears to be correct. Moreover, this Court cannot lose of
sight that though the petitioners were aware about the
resolutions dated 27.02.1997 and 08.02.1999, the same were
not challenged. From the affidavit it is also noticed that the
common plot of the petitioners is also not getting affected.
Moreover, no contrary documents except the oral submissions
have been canvased to submit that the common plot or other
constructions of the petitioners is getting affected by the
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variation of the Town Planning Scheme. Further, from the
affidavit of the State it is also noticed that the decision to vary
the scheme was taken after following the due procedure which
has been enumerated in the affidavits which has been referred
earlier. Even the State Government in its affidavit has stated
that the procedure has been followed by the respondent -
Corporation before sending proposal for variation. Moreover,
the decision dated 29.03.2008, had considered the objections of
the petitioners and it is recorded that shifting has caused no
prejudice to the petitioners as averred in the petition.
10. In view of above stated facts and the documents referred,
if the decisions are considered, in the decision in the case of
M. M. P. Charitable Trust Thr Its Managing Trustee v.s. State
of Gujarat Through Secretary reported in 2005 (4) GLR 3340, it
is held as under:-
"6. Xxxxxxxxxxxx
It is required to be noted that it is ultimately for
the Town Planning Authorities who are the best
persons having technical knowledge to propose a
road in the scheme and it is not for the Court to
decide as to where the road should be proposed
in the Town Planning Scheme. This Court is not
sitting as an appellate authority against the said
decision taken by an expert body under the
Town Planning Act.
11. Therefore, the contention raised that it is the expert
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body (Town Planning Committee) to decide the variation or
otherwise of the Town Planning Road for public purpose merit
acceptance.
12. Further in the decision in the case of Municipal
Corporation For Greater Bombay v.s. Advance Builders (India)
Pvt. Limited reported in 1971 3 SCC 381 while explaining the
plenary powers of the respondent - Corporation, it is held as
under: -
"12. It is clear, therefore, on a consideration of
the provisions of the Bombay Town Planning
Act, 1954 and especially the sections of that Act
referred to above, that the Corporation is
exclusively entrusted with the duty of framing
and implementation of the Planning Scheme and,
to that end, has been invested with almost
plenary powers. Since development and planning
is primarily for the benefit of the public, the,
Corporation is under an obligation to perform its
duty in accordance with the provisions of the
Act. It has, been long held that, where a statute
imposes a duty the performance or non-
performance of which is not a matter of
discretion, a mandamus may be granted ordering
that to be done which the statute requires to be
done"
12.1 In one more decision relied upon by respondent -
Corporation in the case of Kashiberi wd./o Pitambar Devchand
and Another v.s. State of Gujarat and Another reported in
1989 2 GLH 246, the Hon'ble Court held that in a finalised
town planning scheme, the scope of writ petition under A.226
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of the Constitution of India is very minimal.
13. Therefore, the submission canvased on behalf of
respondent - Corporation that when the Scheme was proposed
by the Municipal Corporation after following the due procedure
and which has been sanctioned by the State Government under
notification dated 12.07.2011, the interference of this Court is
minimal in a writ petition under Article 226 of the
Constitution of India.
14. In view of above, in the opinion of this Court the
petition fails on both the grounds canvased, that the variation
was proposed by Surat Municipal Corporation without
following due procedure as contemplated under the provisions
of the TP Act, 1976 and therefore the sanctioning of the
Scheme vide notification dated 12.07.2011 deserves to be
quashed and set aside and in absence of any proof of
malafides against the Corporation which is a statutory
authority in the opinion of this Court, the petition does not
merit acceptance and the same deserves to be dismissed and is
hereby dismissed. Notice is discharged.
15. In view of disposal of the present petition, the earlier
order dated 03.08.2001 asking the Corporation to take express
permission of this Court for implementation the Scheme is not
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required and the Corporation is hereby permitted to implement
the Scheme in its entirety.
16. In view of disposal of the main matter, connected Civil
Application would not survive and is disposed of accordingly.
sd/-
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
