SCA/595/2008 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.595 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ============================================================== HASMUKHBHAI BHAILALBHAI BAROT - Petitioner(s) Versus SECRETARY & 5 - Respondent(s) ========================================================= Appearance : MR RK MISHRA for Petitioner MR JASWANT K SHAH, AGP for Respondent(s) : 1,4, 5 & 6 MR RM CHHAYA for Respondent(s) : 2 - 3. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 05/02/2008 ORAL JUDGMENT 1. Rule. Mr.Jaswant K.Shah, learned Assistant Government Pleader, waives service of Rule on behalf of the SCA/595/2008 2/37 JUDGMENT respondents No.1, 4, 5 and 6. Mr.R.M.Chhaya, learned counsel, waives service of Rule on behalf of the respondents No.2 and 3. In the facts and circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and finally disposed of today. 2. The instant writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner for the following prayers: “(A)That this Hon'ble Court will be pleased to issue appropriate writ, order or direction in the nature of mandamus or certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 10.12.2007 at Annexure-I; (B) That this Hon'ble Court will be pleased to issue appropriate writ, order or direction in the nature of mandamus or certiorari or any other appropriate writ, order or direction holding and declaring that the area of petitioner's Block no.344C is 1708 square meters as per the record of District Inspector of SCA/595/2008 3/37 JUDGMENT Land Record, Gandhinagar and further be pleased to declare that the action of GUDA i showing the area of Block No.344C of Adalaj as illegal, arbitrary and the same may be declared of no consequence. (C) That this Hon'ble Court will be pleased to issue appropriate writ, order or direction in the nature of mandamus or certiorari or any other appropriate writ, order or direction directing the GUDA authorities to rectify and correct their record and to show the area of petitioner's Block No.344C is 1708 square meters as per the revenue record i.e. Village Form No.7/12 and 8A (Annexure-J and Annexure-K to the petition); (D) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to direct the respondent-authorities not to interfere with the possession of Block No.344C except by deducting 20% of the land for the infrastructural purposes of Adalaj Town Planning Scheme No.11. (E) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to restrain the respondents, their agents or servants from taking the possession of the alleged excess land admeasuring 370 square meters from the petitioner which is being part and parcel of Survey No.344C, which is now given O.P. No.38 of Adalaj Town Planning Scheme No.11 Part-A, Adalaj. (F) That this Hon'ble Court will be SCA/595/2008 4/37 JUDGMENT pleased to pass such and further order as the nature and circumstances of the case may require.” 3. The brief facts of the case, emerging from a perusal of the averments made in the writ petition as well as the documents on record are, that the petitioner is in possession of land bearing Block No.344/C of Town Planning Scheme No.11 (Part-A) Adalaj. It is the case of the petitioner that the area in possession of the petitioner is admeasuring 1708 Sq.Mtrs. The land in question i.e. Survey No.344/C has been included in the Town Planning Scheme No.11 (Part-A) Adalaj by the Gandhinagar Urban Development Authority (“GUDA” for short). In the Draft Scheme prepared and published by GUDA, which was sanctioned by the State Government under Section 48(2) of the Gujarat Town Planning and Urban Development Act (“the Act” for short) on 26.12.2005, the area of the Original Plot of the petitioner has been SCA/595/2008 5/37 JUDGMENT shown as admeasuring 1338 Sq.Mtrs. which, according to the petitioner, is not correct and should have been shown as 1708 Sq.Mtrs. According to the petitioner, since the area comprised in Block No.344/C was incorrectly mentioned as admeasuring 1338 Sq.Mtrs. instead of 1708 Sq.Mtrs., the petitioner filed Special Civil Application No.6403 of 2007. The said writ petition was disposed of as withdrawn vide order dated 1.11.2007 with a view to pursue the remedy which had already been resorted to by him. The petitioner filed a representation to the respondents for correcting the area of land in Block No.344/C from 1338 Sq.Mtrs. to 1708 Sq.Mtrs. Thereafter, the petitioner filed Miscellaneous Civil Application No.2883 of 2007 in Special Civil Application No.6403 of 2007 and Civil Application No.15736 of 2007 in Miscellaneous Civil Application No.2883 SCA/595/2008 6/37 JUDGMENT of 2007 in Special Civil Application No.6403 of 2007. Both the applications came to be disposed of vide separate orders passed by this Court (Coram: Ravi R.Tripathi, J.) dated 28.12.2007. The learned counsel for the respondent No.2 therein made a submission that the representation of the petitioner has already been decided and, if the petitioner is aggrieved by the said decision, he can file a substantive petition challenging the said decision. On this submission, the learned counsel for the petitioner had submitted that the authorities are likely to demolish the shops of the applicant which are situated on Block No.344/C. On the said submission, this Court had directed the authorities to stay their hands till 22.1.2008, before which date the petitioner was given the liberty to file a substantive petition. SCA/595/2008 7/37 JUDGMENT It is in this background that the present writ petition has been filed, challenging the order dated 10.12.2007, whereby, the representations of the petitioner and the written submissions submitted by him have been rejected by the respondent No.3. 4. An affidavit-in-reply has been filed by the respondents No.2 and 3 dated 22.1.2008. It is stated in the said reply-affidavit that GUDA declared its intention to prepare the Town Planning scheme, being TPS No.11-A, on 2.9.2004, as contemplated by Section 41 of the Act. It is stated that the land in question being Block No.344/Part was allotted Original Plot No.76 admeasuring 2490 Sq.Mtrs. and in the Draft Town Planning Scheme, it was allotted Final Plot No.76 admeasuring 1992 Sq.Mtrs. Since those lands were non-agricultural lands and, as the plans were sanctioned, SCA/595/2008 8/37 JUDGMENT deduction was tentatively contemplated to the tune of 20% in the said Scheme. The petitioner was issued an Owners' Meeting notice dated 11.8.2005 (Annexure-Q to the petition) to this effect. It is further stated in the affidavit that the said scheme was forwarded by GUDA to the State Government after following the prescribed procedure, along with objections received under Section 48(1) of the Act. The Draft Scheme was sanctioned by the State Government on 26.12.2005 and as per the sanctioned Draft Town Planning Scheme, the proposal qua the land in question belonging to the petitioner was as under: Case No. Name Block No. O.P. No. O.P. Area Sq. Mtrs F.P.No F.P. Area Sq. Mtrs % Deduc- tion 31 Barot Hasmukh bhai Bhailal bhai 344/P 344/P 76/1 76/2 1338 93 = 1431 76/1 + 76/2 1127 21.24 It is further clear from the affidavit- SCA/595/2008 9/37 JUDGMENT in-reply that the said Preliminary Scheme, was sanctioned by the State Government, exercising powers under Section 65 of the Act vide Notification dated 13.10.2006 and the Scheme came into force on 14.11.2006. Accordingly, as contemplated under Section 65(3) of the Act, the Scheme has become part of the Act. It is further stated in the affidavit that under Section 67(b) of the Act, all rights of the original plots have been reconstituted in the final plots and stand determined by the Final Plot, subject to the rights settled by the Town Planning Officer. As per the sanctioned Preliminary Town Planning Scheme, the original plot area of the petitioner admeasuring 1338 Sq.Mtrs. has been converted into Final Plot No.28 admeasuring 1127 Sq.Mtrs., after deducting 21.24% of the land. According to the averments made in the affidavit, the petitioner raised an SCA/595/2008 10/37 JUDGMENT objection regarding the area of the Original Plot only after the sanction of the Scheme and, since, as per the mandate of the statute, once the Preliminary Scheme has been sanctioned under Section 65 of the Act, an owner loses his right over the Original Plot and the right stands crystallized and settled as per the Final Plot allotted to the owner. Therefore, the contention of the petitioner that he is in possession of 1708 Sq.Mtrs. of land instead of 1338 Sq.Mtrs. is not in consonance with the statutory provisions. The allegations that the excess land admeasuring 370 Sq.Mtrs. which has been taken from 1708 Sq.Mtrs. has been given to one Shaileshbhai Patel for some extraneous considerations, has been strongly refuted by the respondents No.2 and 3 in the said reply-affidavit. It has been clarified that the said Shri Shaileshbhai Patel has been given Final SCA/595/2008 11/37 JUDGMENT Plot No.27 which has been carved out from lands including other lands, than the land being claimed by the petitioner and, as such, it is contended that there is no violation of any provision of law. It is stated that there is no material to substantiate the allegation of extraneous considerations or mala fide motive, on the record of the petition and that the allegations are wrong and baseless. 5. The petitioner has filed an affidavit- in-rejoinder to the reply-affidavit, reiterating the averments made in the petition. 6. Mr.R.K.Mishra, learned counsel for the petitioner, has made the following submissions: (i) According to the learned counsel for the petitioner, the whole of Block No.344/C admeasuring 1708 Sq.Mtrs. is in SCA/595/2008 12/37 JUDGMENT possession of the petitioner and the title of this land is also with the petitioner and, he being the owner of the land, the action of the respondents showing the Original Plot area of the petitioner as 1338 Sq.Mtrs. instead of 1708 Sq.Mtrs. is wrong and incorrect and, therefore, the order dated 10.12.2007 deserves to be quashed and set aside. (ii) It is submitted that the petitioner is in possession of the land admeasuring 1708 Sq.Mtrs. in Block No.344/C and this is evident from a perusal of the extracts of Form No.7/12, Form No.8A, Form No.4 and the measurement of the said plot of land by the District Inspector, Land Records, copies of which have been appended to the writ petition. According to the learned counsel for the petitioner, the impugned order dated 10.12.2007 of GUDA has not correctly SCA/595/2008 13/37 JUDGMENT taken into account the situation on the ground, which, according to the learned counsel for the petitioner is that Block No.344/C comprises of 1708 Sq.Mtrs. and not 1338 Sq.Mtrs. as is shown in the Preliminary Scheme which has been sanctioned by the State Government on 26.12.2005. (iii) Mr.Mishra has submitted that the said Town Planning Scheme requires to be varied by the respondents and the deduction in his plot to the extent of 20% should have been carried out as reflected in the notice under Rule 17 of the Gujarat Town Planning and Urban Development Rules, 1979 (“the Rules” for short), which is annexed as Annexure-Q to the petition, and not to the extent of 21.24%, which is the deduction actually made. (iv) Mr.Mishra has submitted that while SCA/595/2008 14/37 JUDGMENT deciding the representation of the petitioner vide order dated 10.12.2007, the Chief Executive Authority of GUDA was sitting as a quasi-judicial authority and was bound to decide the representation in accordance with law, but has failed to do so and has decided the same in a bureaucratic and administrative manner and, therefore also the said order dated 10.12.2007 deserves to be quashed and set aside. (v) The learned counsel for the petitioner has submitted that the respondents have wrongly shown the Original Plot of the petitioner as comprising of 1338 Sq.Mtrs. instead of 1708 Sq.Mtrs. in order to include 370 Sq.Mtrs. of land in the Final Plot No.27 allotted to one Shaileshbhai Babubhai Patel for some unknown, extraneous considerations. He has further submitted that the said Shaileshbhai Babubhai SCA/595/2008 15/37 JUDGMENT Patel had filed Special Civil application No.23808 of 2007 which came to be disposed of by this Court (Coram: Ravi R.Tripathi, J.) vide order dated 1.11.2007, whereby the GUDA was directed to implement the Town Planning scheme in accordance with law, as expeditiously as possible. It was in view of this direction that the said petition was permitted to be withdrawn. (vi) It is submitted by Mr.Mishra that this Court should relegate the petitioner to pursue the remedy under Section 70 of the Act since the Town Planning Scheme is defective on account of the error in the measurement of Block No.344/C. In support of his contentions, Mr.Mishra has placed reliance on the judgment of this Court in Mukundlal Trikamlal Patwa v. State of Gujarat – 2007(1) GLR 761, wherein it has been held that if the Town Planning Scheme is SCA/595/2008 16/37 JUDGMENT defective on account of error, irregularity or `informality', it is required to be varied by the authority exercising powers under Section 70 of the Act, even after the said Scheme is finalized. 7. Mr.Jaswant K.Shah, learned Assistant Government Pleader, appearing for the respondents No.1, 4, 5 and 6, has submitted that it is not the case of the petitioner that the land has not been properly measured. The intention to prepare the Town Planning Scheme was formulated in September 2004 and, after the said date, the petitioner cannot claim more than 1338 Sq.Mtrs. in Block No.344/C. Mr.Shah has drawn the attention of this Court to the affidavit-in-reply filed on behalf of the Deputy Collector, Gandhinagar, in Special Civil SCA/595/2008 17/37 JUDGMENT Application No.6403 of 2007, which is annexed as Annexure-II to the reply filed by the respondents No.2 and 3. He submitted that the petitioner was the owner of the land bearing Block No.344, which originally admeasured 11635 Sq.Mtrs. In the year 1982, land admeasuring 9145 Sq.Mtrs. out of Block No.344 (comprising 11635 Sq.Mtrs.) was acquired by the competent authority for the purpose of construction of road. In view of the said acquisition, the land admeasuring 2490 Sq.Mtrs. remained in the ownership of the petitioner out of the total land admeasuring 11635 Sq.Mtrs. Mr.Shah has emphasized that in view of the order passed by the Special Land Acquisition Officer dated 5.3.1983 in LAQ No.6/12, the District Inspector of Land Records, Ahmedabad, had made the necessary correction in the land records. The position after the acquisition of the land as above was SCA/595/2008 18/37 JUDGMENT that the petitioner was holding land bearing Block No.344 admeasuring 11635 Sq.Mtrs. out of which land admeasuring 9145 Sq.Mtrs. was acquired and, therefore, ultimately, the petitioner was left with land admeasuring 2490 Sq.Mtrs. Mr.Shah has submitted that the land admeasuring 2490 Sq.Mtrs. of Block No.344 came to be divided into three parts, i.e. Block No.344/A admeasuring 1037 Sq.Mtrs., Block No.344/B admeasuring 115 Sq.Mtrs. and Block No.344/C admeasuring 1338 Sq.Mtrs. which is the subject matter of the present petition. In the light of the above, it is submitted by the learned Assistant Government Pleader that the petitioner may be in possession of the land admeasuring 1708 Sq.Mtrs., but legally, the petitioner is the owner of land admeasuring 1338 Sq.Mtrs. only and, therefore, the order dated 10.12.2007 being legal, valid and correct, does not SCA/595/2008 19/37 JUDGMENT deserve to be interfered with by this Court. It is, therefore, prayed that the petition be dismissed. 8. Mr.R.M.Chhaya, learned counsel for the respondents Nos.2 and 3, in addition to the averments made in the affidavit-in- reply filed by the said respondents, has drawn the attention of the Court to the Scheme of the Act, and has submitted that the intention to prepare the Town Planning scheme was published on 2.9.2004, as provided under Section 41 of the Act. Thereafter, the owners' meeting, as contemplated by Rule 17 of the Rules, took place on 11.8.2005, wherein a tentative proposal was put forward for discussion and a tentative deduction of 20% was proposed. Thereafter, the Draft Scheme came to be sanctioned by the State Government on 26.12.2005. The Preliminary Scheme was submitted by the Town Planning Officer SCA/595/2008 20/37 JUDGMENT to the State Government on 10.7.2006 and the same was sanctioned by the State Government on 13.10.2006, and it came into force on 14.11.2006. According to Mr.Chhaya, it is only when the first notice under Section 68 of the Act for implementation of the Scheme was given by the GUDA to the petitioner on 5.12.2006 that the petitioner made an application dated 5.12.2006 to the Mamlatdar for the first time, to the effect that the area of the Original Plot should be considered as 1708 Sq.Mtrs. and not 1338 Sq.Mtrs. According to the learned counsel for the respondents Nos.2 and 3, the petitioner had himself submitted a map showing the revised plan for a proposed convenience shopping center in Block No.344/C which has been approved by the competent authority on 16.11.2004. The said map is annexed as Annexure-III to the reply SCA/595/2008 21/37 JUDGMENT filed by the respondents No.2 and 3, and, in the said map, the plot area of Block No.344/Part has been clearly shown as 1338 Sq.Mtrs. It is therefore submitted by the learned counsel for the respondents No.2 and 3 that the petitioner was very much in the knowledge of the fact that the plot area of Block No.344/C was 1338 Sq.Mtrs. and not 1708 Sq.Mtrs. It is not disputed that the revised plan submitted by the petitioner was sanctioned on 16.11.2004, i.e. after the intention to prepare the Town Planning Scheme was published. Mr.Chhaya further submits that the Scheme of the Act is such that there is a provision to file objections at various stages, but, at no point of time had the petitioner filed objections before the Town Planning Officer, as contemplated by the provisions of Section 46 of the Act, which pertains to SCA/595/2008 22/37 JUDGMENT disputed claim to the ownership of land. According to Mr.Chhaya, it was only after the notice of implementation of the scheme as contemplated by Section 68 of the Act was served upon the petitioner that the petitioner approached this Court. Mr.Chhaya has submitted that once the Town Planning scheme is sanctioned by the State Government, it becomes part of the Act and cannot be challenged. Mr.R.M.Chhaya has submitted a letter dated 23.1.2008 of the Collector, Gandhinagar, addressed to the Chief Executive Authority, GUDA, informing him that it has now been decided that the Entry No.11133 is being looked into by way of initiating suo-motu revision proceedings. A copy of the said communication is taken on the record of SCA/595/2008 23/37 JUDGMENT the petition. Mr.Chhaya has emphasized that the disputed entry being relied upon by the petitioner is not yet finalized and, therefore, the claim of the petitioner over 1708 Sq.Mtrs. of Original Plot of Block No.344/Paiki (344/C) cannot be accepted. It has been urged by Mr.Chhaya that even otherwise, the Entries in the revenue records are made for fiscal purposes and do not confer title. Mr.Chhaya has also submitted a certified copy of the Village Form No.6, pertaining to Mutation Entry No.10747 dated 13.2.2007, whereby, after correction being carried out, the area of Block No.344/C has been shown to be 1338 Sq.Mtrs. The same is also taken on the record of the case. Distinguishing the judgments cited by Mr.R.K.Mishra, Mr.Chhaya has submitted that both the said judgments referred to by the learned counsel for the SCA/595/2008 24/37 JUDGMENT petitioner, turn upon the facts as obtaining in each case and are not applicable to the facts of the present case. In support of his contentions, Mr.Chhaya has placed reliance upon the decisions, namely Chhaganbhai Motibhai Bhoi & Anr. v. Anand Area Development Authority & Anr. - 1989(2) GLR 913, Shilpa Park Co.Op. Housing Society Ltd. v. Surat Urban Development Authority & Ors. - 1996(2) GLR 707. and N.Nanalal Kiklawala and another v. State of Gujarat and others - (2005)12 SCC 649. To sum up, Mr.Chhaya has supported the order dated 10.12.2007 of the Chief Executive Authority, GUDA, and has prayed that the writ petition be dismissed, and the respondents be permitted to implement the Town Planning Scheme. SCA/595/2008 25/37 JUDGMENT 9. I have heard the learned counsel for the respective parties at length and in great detail and have gone through the averments made in the petition as well as the documents annexed thereto. 10. The first submission of Mr.R.K.Mishra, learned counsel for the petitioner, to the effect that this Court should hold that the petitioner is the owner in possession of the land admeasuring 1708 Sq.Mtrs. in Block No.344/C instead of 1338 Sq.Mtrs. and that the Final Plot of the petitioner should admeasure accordingly, cannot be accepted. It is evident from the documents on record that the Preliminary Scheme under Section 65 of the Act came into force with effect from 14.11.2006. Section 65(3) of the Act reads as under: “65(3) On and after the date fixed in such notification, the Preliminary scheme or the final scheme, as the case may be, shall have effect as if it were SCA/595/2008 26/37 JUDGMENT enacted in this Act.” A bare reading of this provision makes it clear that the Preliminary Scheme, therefore, has now attained statutory status. This position of law has been enunciated by the Division Bench of this Court in Chhaganbhai Motibhai Bhoi & Anr. v. Anand Area Development Authority & Anr. (supra). Further, it is evident that till the Preliminary Scheme came into force, the area of the land under reference of Block No.344/P i.e. Survey No.344/C was admeasuring1338 Sq.Mtrs. In lieu of this Original Plot, a Final Plot was given to the petitioner, while deducting 21.24% from 1338 Sq.Mtrs. This Court cannot go into the factum whether, or not, the petitioner is in possession of land more than 1338 Sq.Mtrs., in a petition filed under Article 226 of the Constitution of India. This Court will also not go into the factum of ownership or title of the land in question, in the SCA/595/2008 27/37 JUDGMENT present proceedings. Even if the averments of the petitioner that he is in possession of 1708 Sq.Mtrs. of land are taken at the face value, it cannot be said that there is any infirmity in the order of the respondent No.3 dated 10.12.2007 to the effect that the Original Plot i.e. Block No.344/C of the petitioner is admeasuring 1338 Sq.Mtrs., since the Preliminary Scheme has been sanctioned and has now become a part of the statute. The petitioner can always resort to appropriate proceedings before the appropriate forum and this Court cannot go into the disputed questions of fact. If the petitioner had any dispute regarding this position, it was open to him to take recourse to appropriate proceedings under the relevant provisions of the Act. Further, Section 67(b) of the Act mandates that on the day on which the Preliminary Scheme comes into force, all rights in the SCA/595/2008 28/37 JUDGMENT Original Plots which have been re- constituted into Final Plots shall stand determined and the Final Plot shall become subject to the rights settled by the Town Planning Officer. The provisions of this Section make it clear that after the Preliminary Scheme comes into force, all lands shall vest free from all encumbrances in the appropriate authority. In view of the settled position of law, as well as the provisions of the statute, the contention of the learned counsel for the petitioner that the measurement of the area of Block No.344/C should be changed from 1338