Gujarat High Court

Shri Laxmi Developer vs State Of Gujarat on 24 June, 2025

                                                                                                                  NEUTRAL CITATION




                             C/SCA/6079/2025                                     JUDGMENT DATED: 24/06/2025

                                                                                                                  undefined




                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 6079 of 2025


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MRS. JUSTICE MAUNA M. BHATT                              sd/-

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

                                       Approved for Reporting                   Yes           No
                                                                                YES
                        ==========================================================
                                                           SHRI LAXMI DEVELOPER
                                                                   Versus
                                                         STATE OF GUJARAT & ORS.
                        ==========================================================
                        Appearance:
                        MR.D K.PUJ(3836) for the Petitioner(s) No. 1
                        MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
                        MR KAUSHAL D PANDYA (2905) for the Respondent(s) No. 2,3
                        ==========================================================

                             CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                                             Date: 24/06/2025

                                                             ORAL JUDGMENT

1. Rule. Learned Assistant Government Pleader Mr. Sahil Trivedi waives service of notice of Rule for respondent No. 1 and learned advocate Mr. Kaushal Pandya waives service of notice of Rule on behalf of respondent Nos. 2 and 3.

2. This petition is filed with a prayer to quash and set aside the notice/order dated 01.04.2025 (Annexure-A, Page No. 18), passed by respondent No. 3, whereby, the development

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

permission sought by the petitioners is kept in abeyance on the ground of pendency of Special Civil Application No. 1944 of 2024.

3. The brief facts referred in the petition are as under: -

The petitioner is a registered partnership firm who purchased the land bearing Revenue Survey / Block No. 199/5+6, forming part of TP Scheme No. 49 (Katargam), Final Plot No. 292 admeasuring around 1957 sq. meters of non- agricultural land by registered sale deed bearing registration No. 20289 of 2023 dated 12.06.2023 (hereinafter referred to as 'subject land'). The said land was purchased by the petitioner and thus the ownership of the subject land with the petitioners is not in dispute. It is case of the petitioners that prior to their purchase, Preliminary Town Planning Scheme No. 49 (Katargam) was sanctioned by the State Government under Section 69 of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the TP Act, 1976') vide notification dated 03.06.2023. Therefore, the subject land forming part of the Act is not in dispute. Further, upon sanctioning of Town Planning Scheme No. 49 (Katargam), against Original Plot No. 281, the owners were allotted Final Plot No. 291, 292 and 293. It is further case of the petitioners that against original plot of 10017 sq.metrs.; Final Plot Nos. 291, 292 and 293 with area of 7012 sq. meters, were allotted and thus the owners of Original Plot No. 218 had given their deductions prior to allotment of their respective Final Plots. It is case of the petitioners that though the petitioners are owner of Final Plot No. 292, a small portion of Original Plot No.

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

58 / Survey No. 92/2, is forming part of Final Plot No. 292. In other words, Final Plot No. 292 which is in ownership of the petitioner, contain small portion (95.41 sq. meters )of Original Plot No. 58 / Survey No. 92/2 for which the Special Civil Application No. 1944 of 2024 is pending adjudication before this Court.

3.1 It is further case of the petitioners that keeping in mind that a small portion of petitioners Final Plot No.292 (95.41 sq. meters) is forming part of Original Plot No. 58, the petitioners sought development permission excluding the disputed land (95.41 sq. meters) showing that land as not in possession with the petitioners at this stage. However, since the development permission was not decided and kept in abeyance vide order dated 01.04.2025, this petition is filed.

4. Heard learned advocate Mr. D. K. Puj for the petitioners and learned Assistant Government Pleader Mr. Sahil Trivedi for respondent No. 1 and learned advocate Mr. Kaushal Pandya for respondent Nos. 2 and 3.

5. Learned advocate Mr. Puj for the petitioners submitted that the order dated 01.04.2025 is bad in law because the sanctioning of Preliminary Town Planning Scheme No. 49 (Katargam) by notification dated 03.06.2023 is not in dispute.

Pursuant to the sanctioning of Preliminary Town Planning Scheme No. 49 (Katargam) the allotment of Final Plot No. 292 to the erstwhile owner against his Original Plot No. 218 is also not in dispute. Learned advocate by placing reliance on Form No. F submitted that since the predecessors in title of the land

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

were considered for allotment of Final Plot against their Original Plot, deduction was accordingly done which is evident from Form No. F. Against Original Plot of 10017 sq. meters Final Plot allotted is of 7012 sq. meters where Final plot no.292 is part of that 7012 sq. meters. However, since portion of Final Plot No. 292 is disputed, the petitioners applied for development permission excluding that small portion, despite that the development permission is denied which erroneous and contrary to law.

5.1 Learned advocate submitted that as per Sub Section 4 of Section 29 of the TP Act, 1976, the application, if any, preferred under Section 27 of the TP Act, 1976 shall have to be decided within a stipulated time period. If the authority fails to communicate order to the applicant within a period of 3 months from the date of receipt of the application, such permission shall be deemed to have been granted on expiry of the period of 3 months. Therefore, under no provision of the T.P.Act 1976, and the Rules framed thereunder the authority can order not to decide the application which has been done in the present case. Learned advocate therefore submitted that the present petition deserves to be allowed.

5.2 Moreover, as per Section 67 and 68 of the TP Act, 1976, once the Town Planning Scheme is sanctioned by the State Government, the same is required to be implemented by the respondent - Corporation. The respondent - Corporation being the implementing authority, the order passed dated 01.04.2025 is contrary to the provisions of the TP Act, 1976 deserves to be quashed and set aside.

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

5.3 Learned advocate for the petitioner further submitted that in this case pendency of petition and an order of status-quo would not have any bearing on the development application preferred by the petitioners since the petitioner has applied for development permission excluding the area which is subject matter of Special Civil Application No. 1944 of 2024. Further, an owner of the land ordinarily would be entitled to use or develop the land for the purpose unless there exists certain regulation in the statute of statutory rules.

5.4 Learned advocate for the petitioners relied upon the following decisions: -

 In the case of Chairman, Indore Vikas Pradhikaran v.s Pune Industrial Coke & Chemicals Ltd. reported in (2007) 8 SCC 705;

 In the case of Ganesh Sahakari Grahak Mandli Ltd. v.s Collector decided by this Court on 06.12.1999 in Special Civil Application No. 8114 of 1999;

 In the case of T. Vijayalakshmi and Others v.s Town Planning Member and Another reported in (2006) 8 SCC 502;

5.5 Moreover, the petitioners are ready to file and undertaking which he has stated on oath in the memo of petition that the petitioners would not develop and keep vacant the portion of land bearing Survey No. 292 for which

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

the petition is pending and referred in the order dated 01.04.2025.

6. Opposing the petition, learned advocate Mr. Kaushal Pandya for respondent Nos. 2 and 3 - Corporation submitted that pendency of Special Civil Application No. 1944 of 2024 is not in dispute. In the said petition, this Court has already granted status quo and if any development application is considered and granted, it may create multiplicity of proceedings. Learned advocate further submitted that the order dated 01.04.2025 is not the rejection order by which the petitioners ought to have been aggrieved. Keeping in mind the pendency of the petition, the authority has acted respecting the status quo granted by this Court in Special Civil Application No. 1944 of 2024. Therefore, the request made at this stage to quash and set aside the order and to grant the development permission may not be considered at this stage. Learned advocate therefore submitted that the present petition does not require consideration.

7. Considered the submissions and the decisions on record. Upon revisitation of facts, it is noticed that allotment of Final Plot No. 292 which they have purchased through registered sale deed is not in dispute. Further, in this case, the Preliminary Town Planning Scheme No. 49 (Katargam) is sanctioned vide notification dated 03.06.2023 by the State Government under Section 65 of the TP Act, 1976 and therefore the said Town Planning Scheme has become part of the Act. It is true that the Corporation being the implementing authority is required to implement the Town Planning Scheme

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

under Section 67 r/w Section 68 of the Act, 1976 as expeditiously as possible which has been done in this case by giving Final Plots against the Original Plots.

8. Section 29 of the TP Act, 1976 refers to grant or refuse of permission. Sub Section 4 of Section 29 of the TP Act, 1976 reads as under: -

"Section 29. (1) On receipt of an application under section 27 or section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge 3 [ and scrutiny fees,] if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing-

(i) grant the permission with or without any condition; or

(ii) grant the permission, subject to any general or special orders made by the State Government in this behalf; or

(iii) refuse to grant the permission.

(2)Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal.

(3)Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.

(4)If the appropriate authority fails to

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.

(5) If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of section 27 or section 28 or of any permission granted under sub-section (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any such use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use.

(6)Any expenses incurred by the appropriate authority under sub-section (5) shall be a sum due to the appropriate authority under this Act from the person in default."

8.1 Therefore under Section 29 of the TP Act, 1976, the authority is duty bound to decide the application seeking development permission, either accepting it or rejecting it, within the time prescribed. Further, there is no provision under which the application is declined to be decided, or can be put in abeyance.

8.2 Moreover, Section 65(4) of the TP Act, 1976 provides for power of Government to sanction or refuse to sanction, the scheme and the effect of such sanction wherein Sub Section 4

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

reads as under: -

"Section 65:- XXXX

(4) The appropriate authority shall, after the preliminary scheme is sanctioned by the State Government under sub-section (2), complete the execution of such scheme within a period of two years from the date of the sanction of such scheme, failing which the State Government may take such actions against appropriate authority as it deems fit."

Therefore, the corporation being implementing authority is duty bound to implement the preliminary scheme once sanctioned by the State Government.

9. Now in relation to the ground taken into consideration by passing the order dated 01.04.2025 it is noticed that the authority considered the pendency of Special Civil Application No. 1944 of 2024 wherein status quo has been granted by this Court. However, in the opinion of this Court, if the development permission is sought excluding the disputed land for which the Special Civil Application No. 1944 of 2024 is pending then it would not cause any prejudice to the petitioners of SCA 1944 of 2024.

10. Moreover, in the decisions of Chairman, Indore Vikas Pradhikaran v.s Pune Industrial Coke & Chemicals Ltd. reported in (2007) 8 SCC 705, it is held as under: -

56. Property, while ceasing to be a fundamental

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.

Interpretation of the Act :

57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or a statutory rule. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right of property of the owner of such land.

Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable one. [See Balram Kumwat v. Union of India & Ors. (2003) 7 SCC 628; Krishi Utpadan Mandi Samiti & Ors. v. Pilibhit Pantnagar Beej Ltd. & Anr. (2004) 1 SCC 391; and Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. (2004) 2 SCC 747]. The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation."

11. In the decision of T. Vijayalakshmi and Others v.s Town Planning Member and Another reported in (2006) 8 SCC 502, the Hon'ble Supreme Court in relation to right to develop the property has 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.

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

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 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, is 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 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 state book would be more eco-friendly.

15. The law in this behalf is explicit. Right

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

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."

12. In the decision of Ganesh Sahakari Grahak Mandli Ltd. v.s Collector decided by this Court on 06.12.1999 in Special Civil Application No. 8114 of 1999, this Court in relation to grant of non-agricultural use permission as held as under:-

"Looking to the undisputed facts stated hereinabove, it appears that the concerned authority has erred in law by rejecting the application dated 12.8.99 submitted by the petitioner for converting the land in question into non-agricultural land.

In the circumstances, the impugned order dated 1/4.10.1999 is quashed and set aside and respondent No. 1 is directed to consider the application dated 12.8.99 submitted by the petitioner afresh without considering the fact with regard to pendency of the civil suit referred to hereinabove."

13. Moreover, the statement made on behalf of the petition as also averred in the petition that the petitioners are ready to file an undertaking before the concern authority that if Surat

NEUTRAL CITATION

C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025

undefined

Municipal Corporation considers the application of the petitioners seeking development permission subject to outcome of Special Civil Application No. 1944 of 2024, they do not have any objection.

14. In view of aforestated reasons, following order is passed:-

14.1 The order dated 01.04.2025 is quashed and set aside.

14.2 The petitioners are directed to file an undertaking before respondent - Corporation that they do not have any objections if the Surat Municipal Corporation considers the application seeking development permission subject to outcome of Special Civil Application No. 1944 of 2024.

14.3 Once such undertaking is filed application of the petitioners dated 16.02.2024 seeking development permission (excluding the disputed land having 95.41 sq. meters) shall be decided as expeditiously as possible in accordance with law.