IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6805 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- PURSHOTTAM COOP HOUSING SOCIETY LTD (PART II) Versus SURAT MUNICIPAL CORPORATION -------------------------------------------------------------- Appearance: MR YM THAKKAR for Petitioner No. 1 MR PRASHANT G DESAI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE KUNDAN SINGH Date of decision:-11/02/2002 C.A.V. JUDGEMENT 1. By means of this petition, the petitioner has sought a direction to the respondent - Surat Municipal Corporation (hereinafter referred to as "respondent" for the sake of brevity and convenience) to hand over the peaceful and vacant possession of the land in question admeasuring 3166 sq. mtrs. of final plot no. 36 of the Draft Town Planning Scheme No.. 36 (Althan) and to grant development permission in toto as prayed for in the application dated 9-2-2000 and to quash and set aside the action of the respondent - Corporation of continuing their possession over the land in question as illegal, arbitrary, null and void and against the provisions of the Gujarat Town Planning & Urban Development Act, 1976 (hereinafter referred to "the Act" for short). 2. The petitioner is a registered cooperative society and has purchased the land bearing surveys No. 77, 79/1/P (at present block no. 96) situated at village Althan in the year 1981 at the auction held by the competent authority and pursuant to the auction sale, name of the petitioner was mutated in the village forms No. 6 and 7-12. The Althan Gram Panchayat passed the resolution No. 7 dated 24-9-1991 granting permission to the petitioner to develop the said land as per the building plans prepared and submitted by the petitioner. The draft development plans prepared by the Surat Urban Development Authority (for short "SUDA") was sanctioned on 31-1-1986 by the State Government and it came into force on 3-3-1986. The land in question was earmarked in the draft development plan for the purpose of education more particular for South Gujarat University. In the said final development plan, it is stated that under the provisions of Section 20 (1) of the Act the appropriate development authority or any other authority for whose purpose the land is designated in the final development plan for any purpose specified in clause (b), (d), (f), (k) or clause (n) or (o) of Subsection 2 of Section 12 of the Act, may acquire the land either by the agreement or under the provisions of the Land Acquisition Act. Section 20 (2) contemplates that if the land referred to in Sub-section 2 is not acquired, by the agreement within a period of 10 years, from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice, the land is not required, or no steps are commenced for its acquisition, designation of the land as aforesaid shall be deemed to have lapsed. In the present case, the said land was not acquired by the authority concerned within stipulated period of 10 years from 3-3-1986 to 3-3-1996. Meanwhile, the limits of the respondent Corporation was extended and the area comprising old village Althan came to be included in the limits of the respondent Corporation. On expiry of 10 years, SUDA sought to revise the existing final development plan u/s 21 of the Act. After following the procedure, the revised draft development plan u/s 9 of the Act, SUDA had not designated the said land for any purpose, as specified in clause (b), (d) (k) and (n) of Subsection 2 of Section 12. Thus, in the revised draft development, the said land is stood dereserved and deleted from the reservation. Thereafter, SUDA published draft development plan on 3-3-1996 in the official gazette. After the revised draft development plan was published in the official gazette on 29-2-1996. The respondent Corporation declared on 23-7-1997 its intention to frame town planning scheme in respect of the land situated in village Althan. By passing the resolution in consultation with the Chief Town Planning Officer as required u/s 41 of the Act. The revised draft development plan was submitted on 26-8-1997 to the State Government u/s 16 of the Act by SUDA after complying with the provisions of Section 13 and 15 of the Act. The said development plan was published in the official gazette and the land in question was earmarked for residential zone. Hence, there was no question of any reservation over the land in question for public purpose. The respondent Corporation published the proposed draft town planning scheme on 16-6-1998 along with the plans showing the area that it proposes to include in the scheme. The land in question was not reserved for any public purpose in the proposed draft town planning scheme. The petitioner was asked by the respondent Corporation to surrender 3166 sq. mtrs. of land from the land bearing Survey No. 96/P of final plot no. 36 under the guise that the land in question is for reservation. Hence, the petitioner had to surrender unwillingly the land in question without claiming any compensation on 6-10-1998. As the land in question was not under any reservation in the draft development plan submitted to the Government or the draft development plan submitted to the Government or draft town planning scheme no. 36, prepared by the respondent Corporation, the petitioner submitted the building plans prepared by the Architect and made an application on 26-2-1999 to the respondent Corporation seeking permission to develop the said land comprising the reconstituted final plot no. 36 and to put up the construction thereon in accordance with the building plans submitted along with the application. The petitioner also paid scrutiny fee along with the application sum of Rs.17,500/- on 26-2-1999 and also paid sum of 15,000/- by way of deposit for the road blocking. The State Government already granted exemption u/s 20 (1) of the Urban Land Ceiling Act on 23-3-1999 for construction of the residential blocks over the land bearing Block No.96/P original Surveys No. 77 an 79/1 admeasuring 27519 sq. mtrs. The Town Planning Committee passed the resolution No. 43 of 1999 on 12-7-99 resolving to remove reservation from the land bearing Block No. 96/P from the draft town planning scheme no. 36. The draft town planning scheme was submitted to the State Government on 15-7-1999 for its sanction u/s 48 (i) of the Act. The reservation over the land in question was removed vide resolution no. 43 of 1999 and that the town planning scheme did not contain any reservation of the land in question. The Town Planning Committee of the respondent Corporation moved another resolution No. 53 of 1999 on 6-8-1999 resolving to keep the reservation over the land in question and cancelled the deletion of the reservation suggested by the resolution no. 43 of 1999. The Commissioner of the respondent Corporation submitted on 13-8-1999 to the State Government the aforesaid decision of the Town Planning Committee and requested to redesignate the land admeasuring 3166 sq. mtrs. from the land in question for the purpose R-2 District Centre. The State Government while exercising the power u/s 122 (1) of the Act, issued circular on 4-11-1999 providing for sanction of the development permission for the lands which were included in the draft town planning scheme from which the reservation stood deleted and the draft town planning scheme was prepared incorporating the land deleted from the reservation in the revised approved development plan. Hence, the petitioner is entitled to obtain development permission from the respondent Corporation. The State Government while in exercise of the powers u/s 48 (2) of the Act issued notification on 4-12-1999 sanctioning the draft town planning submitted by the respondent Corporation and it was mentioned that while finalising the draft town planning scheme, the Town Planning Officer shall consider the area of block no. 96/P as per the revenue record like 7-12 joint measurement sheet no. 4 etc. in light of the Scheme sanctioned u/s 20 (1) of the ULC Act. As such, the land in dispute was dereserved. The petitioner upon the publication of the aforesaid notification dated 4-12-1999 submitted the plans for obtaining development permission from the respondent Corporation, wherein the land in question was divided into three parts including the land in question, as no reservation was imposed over the land in question in the draft town planning scheme sanctioned by the State Government, the possession of the land handed over to the respondent Corporation by the petitioner was required to be returned back. The petitioner approached this Court by way of filing Special Civil Application No. 1009 and 1010 of 2000 for a direction to the respondent Corporation to grant development permission. The respondent was directed to consider the application of the petitioner on merits and in accordance with the Rules and Regulation of the respondent Corporation and decide the same within four weeks from the date of the order dated 16-8-2000. The plan submitted by the petitioner on 26-12-1999 was not found in consonance with the boundaries and the measurement of the final plan approved by the Town Planning Officer and hence the petitioner submitted revised plan as advised by the Town Planning Officer on 9-2-2000. In the revised plan, the land bearing Block No. 96/P was divided into two parts and was demarcated as per the advice of the Town Planning Officer. The Town Planning Officer vide his opinion dated 11-2-2000 approved the plan of the petitioner and lay out plan submitted by the petitioner being in consonance with the draft town planning scheme, sanctioned by the State Government. As per the order dated 16-8-2000 of this Court, the petitioner requested the respondent Corporation on 29-8-2000 to issue development permission as applied by it vide the application dated 9-2-2000. The State Government vide its notification dated 4-12-1999 directed the Town Planning Officer to consider the order passed by the Government u/s 20 (1) of the ULC Act in the connection with the land in question. The respondent Corporation insisted that the petitioner should show 3166 sq. mtrs. of land as reserved for R-2 District Centre and accordingly directed the petitioner to modify the plans submitted the petitioner as the respondent Corporation has proposed reservation for R-2 District Centre. Though there was no reservation as per the Circular dated 4-11-1999, the notification dated 4-12-1999 and the opinion of the Town Planning Officer dated 11-2-2000 the respondent Corporation insisted for omission of piece of land admeasuring 3166 sq. mtrs. of land from the plans submitted by the petitioner. Despite the High Court's order to decide the application of the petitioner within four weeks from the date of the order, the respondent Corporation has not passed any order on its application and was insisting that the plans of the petitioner can be sanctioned only if the petitioner omits the land admeasuring 3166 sq. mtrs. of land from the plan submitted by him. The petitioner made the application on 9-11-2000 to the respondent Corporation to pass appropriate order as per the High Court's order. The petitioner had sent two notices dated 20-11-2000 to the Commissioner of the respondent Corporation and the Town Development Officer for granting development permission at the earliest. Under the pressure of the respondent Corporation, the petitioner had to omit the portion of the land of 3166 sq. mtrs. on 15-12-2000, as the petitioner wanted to make construction at the earliest. Then, the respondent Corporation granted the development permission on 15-12-2000 and sanctioned the plan excluding the land admeasuring 3166 sq. mtrs. The petitioner after receipt of the development permission from the respondent Corporation sent a representation dated 26-12-2000 requesting the respondent Corporation to hand over the possession of the land in question admeasuring 3166 sq. mtrs. of block No. 96, to the petitioner. The petitioner again sent a reminder on 22-2-2001 and the State Government in response of the petitioner's representation dated 18-9-2000, instructed the respondent Corporation to follow the contents of the notification dated 4-12-1999 sanctioning the draft town planning scheme which does not have any reservation of any nature over the land in question. As such, retention of the land in question by the respondent Corporation is illegal and hence the present petition. 3. The affidavit-in-reply has been filed by the Town Development Officer, wherein it is stated that the petitioner is estopped from taking plea that the respondent Corporation is not considering or granting the construction permission in question. The respondent Corporation has granted the development permission on 15-12-2000 pursuant to the directions of this Court given vide order dated 16-8-2000. At no time, the petitioner made any grievance either before this Court or before the respondent Corporation. The plan submitted by the petitioner was sanctioned by the respondent Corporation considering the fact that the petitioner has voluntarily handed over the possession of the land in question which the land in question has been kept under reservation for District Centre vide resolution No. 53 of 1999 of the Town Planning Committee. The Town Planning Committee had recommended earlier to dereserve the said land by its resolution no. 43 of 1999 dated 12-7-1999. By the resolution No. 53 of 1999 dated 6-8-1999 the Town Planning Committee made partial change in its earlier resolution no. 43 of 1999 to continue the said reservation and authorised the Municipal Commissioner to deal with the matter with the State Government and the State Government is to reserve the said land in question for R-2 of the District Centre. All the proceedings are pending before the Town Planning Officer and still no decision has been taken and the town planning scheme has not yet been finalized. The Town Planning Officer requested the respondent Corporation not to grant any development permission and the respondent Corporation required the land for the purpose of District Centre. Hence, it is not in the interest of the respondent Corporation to grant development permission as requested by the petitioner. As per the provisions of Section 40 of the Act, the appropriate authority can deduct upto 50% of the original land which is under the town planning scheme and only 30% of the land was deducted under the Town Planning Scheme. As per the Draft Town Planning Scheme published on 4-12-1999, the petitioner voluntarily handed over the possession of the said land in the public interest by his written consent. The respondent Corporation has sanctioned the plan and has only deducted 25% of the land considering the proposal of draft town planning scheme. Hence, the petitioner again cannot plead at this stage. As per the order of the ULC authority, the petitioner was required to construct "Gala" type of duplex units. On the contrary, the petitioner submitted plans for apartment type which was against and contrary to the order passed u/s 20 of the ULC Act. The petitioner cannot take the benefit of the said order as he has voluntarily agreed not to take benefit of the order u/s 20 of the ULC Act. At present, the land in question is in possession of the respondent Corporation and that land has been fenced. As per the policy of the State Government every plot holder has to forego 30% of the land for the public benefits. 4. Rejoinder affidavit has also been filed by the petitioner beside the other averments, it is asserted that earlier petition filed by the petitioner before this Court for a direction to sanction the plans which have been put up on 9-2-2000 which includes the entire final plot no. 36 including the area of 3166 sq. mtrs. which was sanctioned on 11-2-2000 by the Town Planning Officer. This Court directed the respondent Corporation to consider the plans submitted on 9-2-2000 which includes 3166 sq. mtrs. of land. As soon as the draft town planning scheme was published for R-2 District Centre. The petitioner being a law abiding citizen though it was not required to surrender the land till the draft town planning scheme is sanctioned u/s 65 (3) of the Act, bonafidely gave possession at the time when the intention was declared not even the draft town planning scheme was finalized but as soon as the draft town planning scheme was sanctioned by the State Government and the land was not shown under reservation. Immediately, the possession was sought for the entire final plot no. 36. The possession of the land in question was sought and sanction of the plan was also requested for and there is no rule that till the draft town planning scheme is finalised no development permission can be granted and number of development permissions have been granted. 5. The respondent Corporation has filed further affidavit wherein it is stated that the respondent Corporation has declared its intention to make town planning scheme on 23-9-1997. Thereafter, public meeting was called for on 16-6-1998. The plans were prepared and the scheme was made. The reservation was placed in the original plot No. 35 as R-2. the said reservation was placed on the main road and there was deduction of 30% of land at that time. Thereafter, on 6-10-1998, the petitioner gave a letter to the respondent Corporation that if 25% of the land is deducted out of the total area, they are ready to give possession to the respondent Corporation. On representation made, the reservation was changed while preparing the draft town planning scheme shifted the reservation from the road side to the rear portion of the plot and reduced area to 3166 sq. mtrs. and the petitioner has given the possession of the plot on 6-10-1998. Now, the petitioner again cannot plead against its own conduct that the intention to take back the plot and to make construction on it since it is not in reservation in the draft development scheme, as alleged. The draft town planning scheme was submitted to the State Government on 6-8-1999 to reserve the part of final plot for R-2 District Centre. As per the draft town planning scheme and as per the resolution dated 6-8-1999 after deducting 3166 sq. mtrs. for R-2 District Centre and some other area is deducted for the road purpose. Therefore, the petitioner has got clear 21769 sq. mtrs. of land which is buildable and for portion of the said area. The respondent Corporation has passed the resolution during pendency of draft town planning scheme for sanction to keep the plot admeasuring 3166 sq. mtrs. in reservation. That was also sent to the State Government. That the resolution was submitted to the Town Planning Officer and the Town Planning Officer is required to take decision u/s 52 of the Act. At the time of preparing the preliminary scheme as regards the final plot no. 36 "paiki". Till the Town Planning Officer decided the matter, no plan can be sanctioned in respect of final plot no. 36 "paiki" admeasuring 3166 sq. mtrs.. In that respect, the respondent Corporation passed the resolution No. 53 of 1999 on 6-8-1999. Even the Town Planning Officer after the draft town planning scheme, has power to reserve or dereserve the land. Hence, that power cannot be curtailed as submitted by the petitioner. The plan submitted by the petitioner was sanctioned on 15-12-2000 pursuant to the order of this Court. Thereafter, the petitioner produced the plan for commercial complex in the same final plot on 26-2-1999. In that plan, the reservation was shown. The plan submitted by the petitioner on 11-9-2000 has been rejected on 17-10-2001 and there is no plan which can be permitted to be sanctioned by the respondent Corporation in respect of the land admeasuring 3166 sq. mtrs. or any other part of final plot. No plans were produced for construction of land 3166 sq. mtrs. out of 21769 sq. mtrs. of land. Even in that plan, reservation for R-2 District Centre was shown. The Town Planning Officer has written a letter to the respondent Corporation not to sanction any plan in respect of the area town planning scheme for development. The preliminary scheme is under finalisation and asked the Corporation not to sanction the plan. The earlier petition filed by the petitioner, this Court has finally decided and the petitioner has also given the possession to the respondent Corporation and the Corporation is in possession of that part of final plot. The letter dated 6-8-2001 placed before this Court, the Court is misled and the Town Planning Officer has not sanctioned any plan on 11-2-2000. The Town Planning Officer was not made party in that petition before this Court. As per the plans submitted on 9-2-2000, the petitioner has not shown any construction on the reserved land and the same was sanctioned by the respondent Corporation on 15-12-2000. Payment of scrutiny fee does not give any right that the plans will be sanctioned. The plans are to be sanctioned by the respondent Corporation and the ULC permission is always looked into. 6. Heard the learned counsel for the parties and perused the relevant material on record. 7. The petitioner is a registered cooperative society and the petitioner has purchased the land bearing Survey No. 77, 79/1/5 (block No. 96) admeasuring 27519 situated at village Althan, Tal. Choryasi, District Surat. In the draft town planning scheme this area was reduced to 23296 sq. mtrs. and when the draft town planning scheme was sanctioned. At that time, it was further reduced to 21769 sq. mtrs. SUDA approved the draft development plan and the land in question was reserved for the educational purpose particularly for South Gujarat University. In the draft development plan which came into force on 3-3-1986, the land in question was reserved for educational purpose. SUDA revised the draft development plan and the land reserved for the educational purpose was deleted in the said revised plan on 3-3-1996. The respondent Corporation published and declared its intention to frame the town planning scheme in the Government Official Gazette in respect of the land situated in village Althan on 23-7-1997. The petitioner was compelled by the respondent Corporation to hand over the possession of the land in dispute admeasuring 3166 sq. mtrs. from the block no. 96/P under the guise of the propose reservation for R-2 District Centre and the petitioner handed over the possession of the said land on 6-2-1998. The petitioner submitted his application to the authority concerned for development permission of Block No. 96/P. 8. In the present case, the controversy centres round the question regarding the retention of the aforesaid land in dispute admeasuring 3166 sq. mtrs by the respondent Corporation and the development permission of the petitioner on the same land. According to the learned counsel for the petitioner the appropriate authority passed the resolution on 12-7-1999 being resolution no. 43 of 1999 whereby the appropriate authority resolved that no reservation is to be shown in respect of the disputed land admeasuring 3166 sq. mtrs. (hereinafter referred to as land in question) for any purpose and appropriate authority forwarded the draft development scheme u/s 48 (1) of the Act to the State Government for its approval on 15-7-1999 without showing any reservation of the land in question. Within a period of one month on 6-8-1999 the appropriate authority passed the resolution No. 53 of 1999 wherein the State Government was requested to show reservation of the land in question while sanctioning the draft