SCA/13024/2000 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13024 of 2000 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== KIRITCHNADRA DHIRENDRAI DESAI & 4 - Petitioner(s) Versus STATE OF GUJARAT & 9 - Respondent(s) ====================================== Appearance : MR D.D VYAS, SR. COUNSEL with MR DHAVAL D. VYAS for M/S.VYAS ASSOCIATES for Petitioner(s) : 1 - 5. MRS MANISHA LAVKUMAR, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1 - 2, 10, MR PS CHAMPANERI for Respondent(s) : 3, DELETED for Respondent(s) : 4, 11, MR ASIT B JOSHI for Respondent(s) : 5, MR PRABHAKAR UPADYAY for Respondent(s) : 6, RULE SERVED for Respondent(s) : 7 - 8. None for Respondent(s) : 9, MR ND NANAVATY, SR. COUNSEL with MR RM CHHAYA for Respondent(s) : 7, 9.2.1, 9.2.2, 9.2.3, 9.2.4, 9.2.5, 9.2.6,9.2.7 ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 17/10/2008 SCA/13024/2000 2/9 JUDGMENT CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) Una Nagar Panchayat, in exercise of powers conferred on it under Section 22(1) of the Bombay Town Planning Act, 1954 (for brevity “the Act”) passed Resolution No. 235 dated 10th December, 1970, declaring its intention to make Town Planning Scheme (No.2), in respect of lands bearing revenue survey No. 537/1, 537/2, 537/3, 537/4 along with other lands. The relevant records were forwarded to the State Government. Copy of the plan and the details thereof were also made available and open for public inspection at Head Office of the local authority, as provided under Section 22(4) of the Act. Later after completing necessary formalities, Nagar Panchayat, in exercise of powers conferred under Section 23 of the Act, finalised draft Town Planning Scheme No.2, and it was accordingly published in the Gujarat Government Gazette, Part-II on 1st June, 1972. Government, in exercise of powers conferred under Section 23 of the Act sanctioned the draft Town Planning Scheme, vide it's Resolution dated 17th October, 1973, which was also published in the Government Gazette, Part IV dated 15th November, 1973. Later the draft scheme was forwarded to the Government for finalization and the Government, in exercise of powers conferred under Section 28(2) of the Act, finalized the draft scheme, which was published in the official gazette vide Notification dated 2nd September, 1976. 2. The final plot No. 185 falling under Survey No. 537/1 and 2, of the Town Planning Scheme No.2, Una Town is the subject matter of the present dispute. Above mentioned plot was reserved under the scheme for development of town centre of the Nagar Palika. Land covered under Survey No. 537/1 and 2 originally belonged to late Dharamshi SCA/13024/2000 3/9 JUDGMENT Narandas. Later, ownership vested on his descendants Chhotalal Harkhlal, Harikishandas Gulabchand and others. However, in view of reconstitution of the plots, they were given in exchange final plot Nos. 121 and 123 and possession of the plots were mutually transferred. So far as final plot No. 185 is concerned, it was vested in the Nagar Palika by final award of the Town Planning Officer and reserved to be developed as a town centre. Though final plot No. 121 and 123 was given to it's original owner, a Civil Suit No. 268 of 1976 was filed before the learned Civil Judge, Senior Division, Junagadh against Nagar Palika and the Government for a declaration of title of the said land in survey No. 537/1 and 537/2 comprising of final plot No. 185 of Town Planning Scheme No.2. Suit was however, dismissed and the ownership over final plot No. 185 was declared to be that of the Nagar Palika. 3. The Nagar Palika for the development and utilisation of the lands covered by the final Town Planning Scheme, had started digging to lay foundation for construction of the compound wall around final plot No. 185, but was noticed that few persons had encroached upon the land. Civil Suit No. 39 of 1994 was also instituted by the heirs of Karsanbhai Kalabhai before the Court of learned Civil Judge (Junior Division), Una, seeking a permanent injunction claiming possession. In the Suit, only the Chief Officer of Nagar Palika was made as the defendant. It was pointed out before the Court that the land in question was covered under the Town Planning Scheme. Suit was however, decreed on 31st March, 1995, holding that the plaintiffs be not dispossessed without following the due process of law. In order to thwart further proceedings in pursuance to the final Town Planning Scheme, yet another Civil Suit No. 47 of 1994 was filed by one Radheshyam Thavarmal against the Nagar Palika. Another Civil Suit No. 110 of 1995 was also filed against Nagar Palika by one Tidabhai Kalabhai and others in respect of part of the land SCA/13024/2000 4/9 JUDGMENT in survey No. 537/1 and 537/2, which formed part of Final Plot No. 185. Criminal case No. 1590 of 1995 was also filed by one Babubhai Karsan against respondent No. 9(2) alleging trespass over the land. 4. Jurisdiction of the Civil Courts and the Criminal Court were invoked to stall further proceedings in respect of the finalised Town Planning Scheme. Complaint was raised that the then President of Nagar Palika and Chief Officer of Nagar Palika had also sided with some of the parties, who had instituted the Civil Suits. Further, it was also pointed out that while Civil Suit No. 39 of 1994 was pending, respondents Nos. 7 and 8 herein had filed Civil Suit No. 155 of 1994 against Karsan Kalabhai, whose legal heirs had instituted Civil Suit No. 39 of 1994 on the strength of an agreement to sell dated 30th June, 1991, which was executed between respondents Nos. 7 and 8 with Kalabhai. Injunction was sought for against Kalabhai not to sell the subject matter of land in Civil Suit No. 39 of 1994 to anybody, except respondents Nos. 7 and 8 herein. It is unnecessary to dwell upon the facts of those cases which in our view was only intended to delay the implementation of Town Planning Scheme. Simultaneously, after having noticed that plot No. 185 was included in the final Town Planning Scheme No.2, heirs of Kalabhai had submitted an application on 21st May, 1995 through their Power of Attorney Holder Gordhandas Vithaldas to the Government of Gujarat for de-notifying plot No. 185 from the reservation and for allotting the said land to the applicants at the old rate on ownership basis. Government, through it's Urban Development & Housing Department, however, passed a Resolution on 19th June, 1996 as follows:- RESOLUTION Resolved that the lands bearing Survey No. 537/1 and 537/2 and Final Plot No. 185 in the Una Town Planning Scheme No.2 totally admeasuring 6288 sq.mtrs. out of which 21% that is 1302 sq.mtrs. of land is required to be kept SCA/13024/2000 5/9 JUDGMENT open for purposes of roads and etc. in respect of the remaining 4898 sq.mtrs. of land permission is hereby granted to sell out the same to the Power of Attorney Holer – Shri Gordhandas Vitthaldas Bhuptani on behalf of the legal heirs of the deceased Koli Karshanbhai Kalabhai as per proposal submitted by the Collector, Junagadh under the provisions of Section 65(2) of the Gujarat Municipalities Act, 1963 subject to the following conditions. 1. The Municipality will have to sell the said land to the party in possession of the same at the prevailing market rates. 2. The local taxes, cess, levies etc. in respect of the said lands will have to be paid by the concerned party. 3. The use of the said land shall be made for which it has been reserved, i.e. for Town Centre. By order of and in the name of the Governor of Gujarat.” 5. District Collector, Junagadh, who came to know that there was an attempt on the part of the President and the Chief Officer of the Nagar Palika to sell the land which was already included in the final Town Planning Scheme, to some interested parties alleged to be in possession, invoked powers conferred upon him under Section 258(1) of the Gujarat Municipalities Act, and stayed further proceedings. The Collector in his order dated 1.7.1996 stated as follows:- “..... Inspite of these being the facts, the news item published in the daily newspaper edition dated 29.6.1996 in the Fulchhap, Sandesh, Jayhind as well as in view of the telephonic message received from the Mamlatdar, Una that the value of the said land is over R. 1 crore, whereas the Una Municipality has initiated proceedings for selling the said land at market price of Rs. 240/- per sq.mtr. thus for a total consideration of Rs. 11,74,523/-. The said proceedings by the Una Municipality for selling the suit lands is contrary to the conditions in the Resolution dated 19.6.1996 passed by the Government Urban Development and Housing Department, which would cause difficulties for the Una Municipality, therefore the said proceedings are required to be stayed with immediate effect.” 6. The above mentioned order of stay was later confirmed by the District Collector vide order dated 17.10.1996. Order of the Collector was later on challenged before the Government by Gordhandas Vithaldas SCA/13024/2000 6/9 JUDGMENT Bhuptani, Power of Attorney Holder of deceased Koli Karsanbhai, by filing Revision Application No. 89 of 1999. Earlier, order of the Government dated 19th June, 1996 according permission to the Municipality to sell the land in question was challenged before this Court, by the fourth petitioner herein and others, by filing Special Civil Application No. 9846 of 1996, which was disposed of by a Division Bench of this Court on 24th September, 1999, expressing hope that Government would take into consideration relevant provisions of the law and take appropriate decision in the matter, since Revision Application was pending before the Government. The Special Civil Application was accordingly disposed of by this Court. 7. The Government vide it's order dated 30th March, 2000, set aside the order passed by the Collector, Junagadh and reiterated its earlier order dated 19th June, 1996 and ordered to sell the land to the party in possession, on determination of the market value of the land by the Valuation Department. 8. We are informed that Valuation Officer has now valued the property at Rs. 49,46,980/-. Learned counsel appearing for the contesting respondents submitted that they are willing to pay the amount. It is significant to note that petitioners who are vigorously challenging various proceedings earlier before this Court and before the Government were also previous office bearers of the Nagar Palika, and had approached this Court challenging various actions taken by the previous President, Chief Officer and some of the Government officials in collusion with each other, in selling the properties in question at a throw away price, after having included the same in the final Town Planning Scheme. SCA/13024/2000 7/9 JUDGMENT 9. We heard counsel for the other side at length. One of the crucial question which has come up for consideration of this Court is whether Government was justified in upsetting an approved final Town Planning Scheme under the Bombay Town Planning Act, by exercise of its power under Sec. 65(2) of the Gujarat Municipalities Act, 1963. 10. The lands in question were admittedly included in the final Town Planning Scheme, which was duly notified in the Gazette. Final Plot No. 185 was reserved for a public purpose i.e. Town Centre. Facts would clearly indicate that there was an attempt on the part of previous President and Chief Officer of the Nagar Palika and others to tinker with the scheme which was finalised, so as to favour certain interested persons stated to be in possession of the plot. Admittedly title of the land was clearly vested in the Nagar Palika, but documents were created by the interested parties to appropriate the valuable property of the Nagar Palika at a throw away price. One of the reasons which weighed with the Government in permitting the Municipality to sell this land to the interested parties was that they are poor and illiterate, but it is interesting to note that now they are willing to pay an amount of Rs. 49,46,980/- for the property. Another reason which weighed with the Government was that the parties had no notice of the publication of the Town Planning scheme, but it must be relevant to note that the entire procedure contemplated under Section 22 of the Bombay Town Planning Act was scrupulously followed by the local authority; copy of the plan was kept open for inspection of the public at all reasonable hours at the head office of the local authority; the draft scheme was published in the official gazette by following the procedure contemplated under Section 23 of the Act and after following all the procedures, and the scheme was ultimately finalised. No objection was filed against the scheme before it was finalised, and when the Nagar Palika was about to construct SCA/13024/2000 8/9 JUDGMENT compound walls to protect their property, jurisdiction of the Civil Court was invoked, followed by various inter-se disputes on the strength of agreement to sell, all that was to thwart further proceedings on the basis of the finalised Town Planning Scheme. It is curious to note that no single Resolution was passed by the Nagar Palika at any point of time authorizing the President or Chief Officer to part with the property owned by the Municipality. It was without permission of the Municipality or the Council, then President and Chief Officer who were hand in glow with the parties interested had acted, so as to sell the properties included in the final Town Planning Scheme at a throw away price. The Collector had, at one point of time, invoked his suo-motu powers under Section 258(1) of the Gujarat Municipalities Act, 1963, when he got a report from the Mamlatdar, Una that the property in question was worth more than Rs. 1 crore, which was sought to be sold at Rs. 11,74,523/-. The newspaper also highlighted those facts, but jurisdiction of the Government was invoked and the Collector was silenced. 11. We are of the view that once the Town Planning Scheme was finalised, it becomes part of the Act and has got the statutory status. Variation of the Scheme is permissible only in accordance with the provisions of the Gujarat Town Planning and Urban Development Act, and no variation can be made unless the procedure provided for variation is followed, that too by exercising powers under Section 71 of the Act. In Navinchandra Nanalal Kiklawala V. State of Gujarat – 1999 (4) GCD 2591, it has been clearly stated that it is a statutory obligation of the Nagar Palika to carry out the scheme. Once, the town planning is approved and statutory status has been conferred, the Nagar Palika has no power under Section 65 of the Gujarat Municipalities Act to sell away that property, nor the Government can empower the Nagar Palika to do SCA/13024/2000 9/9 JUDGMENT so upsetting the approved Town Planning Scheme which would amount to fraud on the Town Planning Act. 12. Further, it may be noted that even though Civil Suit No. 39 of 1994 seeking permanent injunction was decreed, while decreeing the Suit it has been clearly stated in the judgment against the Nagar Palika, that: “...... Therefore, the defendant should not be recovered the possession of the disputed property from the plaintiff's without following due process of law,....” meaning thereby by due process of law, the occupants of the property can still be dispossessed the persons who are unauthorised occupants of the land belonging to the Municipality, which has been included in the final town Planning Scheme No.2. 13. We are therefore, inclined to allow the petition and quash and set aside Government Resolution No. NLP-4595-1765-P dated 19th June, 1996 (Annexure “E”) and the order dated 30th March, 2000 (Annexure “L”) passed by the Deputy Secretary, in Revision Application No. 89/99. Nagar Palika can go ahead with Town Planning Scheme No.2 in accordance with law. If any amount has been deposited by the contesting respondents, the same should be returned to the respective parties with interest at the rate of 9% per annum. In the facts and circumstances, we are not ordering any costs. Rule is made absolute to the above extent. (K.S. Radhakrishnan, C.J.) (Akil Kureshi, J.) */Mohandas