SCA/1931/2005 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1931 of 2005 With SPECIAL CIVIL APPLICATION No. 12749 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ================================================= 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 ? ================================================= SNEHANJALI COOPERATIVE HOUSINGSOCIETY LTD.,THRO' ITS CHAIRMA - Petitioner(s) Versus THE STATE OF GUJARAT & 10 - Respondent(s) ================================================= Appearance : MR MAHESH BHAVSAR for the Petitioner MR DA DESAI, ASST. GOVERNMENT PLEADER for Respondent Nos.1 and 2 MR KB TRIVEDI, learned senior advocate with MR PR NANAVATI, learned advocate for Respondent Nos.3 and 4 MR AJ PATEL learned advocate for Respondent No.5 MR VIKRAM J THAKOR for Respondent Nos.6 to 11. ================================================= SCA/1931/2005 2/55 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/10/2005 ORAL COMMON JUDGMENT 1. By way of Special Civil Application No.1931 of 2005 under Article 226 of the Constitution of India, the petitioner Snehanjali Cooperative Housing Society Limited (hereinafter referred to as “the Snehanjali society) has prayed for an appropriate writ, direction and/or order for quashing and setting aside the Town Planning Scheme, Thaltej No.1 (final) in so far as it relates to original survey No.113/2. A further prayer is also made to quash and set aside the variation made in the Town Planning Scheme, Thaltej No.1 (final) vide notification dated 23- 4-2001 in exercise of powers under Section 70 of the Gujarat Town Planning and Urban Development Act and Rules 1976 (for short “the Act and Rules”) by which the scheme was varied with regard to original survey Nos.113/2 and 113/1 and final plot Nos. 68 and 67 respectively on account SCA/1931/2005 3/55 JUDGMENT of an error. It is also further prayed for an appropriate writ, direction and/or order directing the Ahmedabad Urban Development Authority (AUDA) not to disturb the possession of the petitioner from survey No.113/2 i.e. F.P. No.65, which forms the part of the Town Planning Scheme, Thaltej No.1 (final). It is also further prayed for an appropriate order directing the AUDA not to permit the development on F.P. No.68 of the said Town Planning Scheme and not to grant development permission. By way of interim relief, it is prayed to direct the AUDA not to disturb the possession of the petitioner of survey No.113/2 i.e. F.P. No.65 forming part of the Town Planning Scheme, Thaltej No.1 (final) and not to permit development on F.P. No.68 of the said scheme. 2. So far as Special Civil Application No.12749 of 2003 is concerned, the petitioner Nidhi Cooperative Housing Society Limited (hereinafter SCA/1931/2005 4/55 JUDGMENT referred to as “the Nidhi society) has prayed for an appropriate writ, direction and/or order directing the AUDA, appropriate authority under the Act to hand over the vacant and peaceful possession of the land admeasuring 4645 sq mtr of F.P. No.65 of the Town Planning Scheme, Thaltej No.1 (final) by removing unauthorized construction put up by the Snehanjali society (petitioner of Special Civil Application No.1931 of 2005). Initially, alternatively, it was prayed for an appropriate order directing the AUDA to hand over the vacant and peaceful possession of the land bearing F.P. No.68 admeasuring 4299 sq mtr, which is allotted to Snehanjali society in lieu of their original survey No.113/2 on which the Snehanjali society has put up unauthorized construction. However, at the time of hearing of these Special Civil Applications, it was submitted by the learned counsel appearing on behalf of the Nidhi society that the petitioner does not press the alternative prayer made in SCA/1931/2005 5/55 JUDGMENT para 34-A of the petition relating to direction upon AUDA to hand over the vacant and peaceful possession of the land bearing F.P. No.68 admeasuring 4299 sq mtr, which is alleged to be alloted to respondent No.2 society i.e. Snehanjali society in lieu of the said land of the petitioner society on which Snehanjali society has put up unauthorized construction and it was requested to permit the petitioner to delete the said prayer and the said permission was accordingly granted by order dated 20-1-2005. Thus, only part of para 34-A of the petition is required to be considered. 3. As common question of law and facts arise in both these petitions and they are interconnected and with regard to one common land bearing F.P. No.65, both these petitions are being disposed of by this common judgment and order. 4. The question, which has been raised in SCA/1931/2005 6/55 JUDGMENT present Special Civil Application No.1931 of 2005 is that should the construction put up by the petitioner put up illegally and unauthorizedly on the land allotted to others be protected? Another question which is to be considered by this court is whether, should AUDA, an appropriate authority under the provisions of the Act be directed to hand over the peaceful and vacant possession of the land which is alloted to the petitioner of Special Civil Application No.12749 of 2003 under the finalized Town Planning Scheme after removing unauthorized and illegal construction put up by the Snehanjali society (petitioner of Special Civil Application No.1931 of 2005)? 5. Few facts are necessary for the purpose of determination of both these Special Civil Applications. Original survey No.113/2 situated at Thaltej town admeasuring 6070 sq mtr of land, was owned by Dahyaji Motiji and others. Survey No. 113/1 admeasuring 12141 sq mtr was owned by SCA/1931/2005 7/55 JUDGMENT Smt. Minaben Mahasukhlal and others. It appears that Dahyaji Motiji and others were the owners of land bearing survey No.113/2 and Smt. Minaben Mahasukhlal and others were the owners of land bearing survey No.113/1. However, there was a mistake in the revenue records with regard to said lands prior to 1983 and in the revenue record, Dahyaji Motiji and others were shown as owners of land bearing Survey No. 113/1 and similarly Smt. Minaben Mahasukhlal and others were shown as owners of land bearing Survey No. 113/2 in the year 1983. In the year 1983 itself, the Revenue records of survey Nos.113/1 and 113/2 were corrected and vide mutation Entry No. 2778, necessary durasti (correction) was carried out and Dahyaji Motiji and others were shown as owners of land bearing Survey No. 113/2 and Smt. Minaben Mahasukhlal and others were shown as owners of land bearing Survey No. 113/1. One Rameshbhai Naranbhai and Smt. Manekben were the owners of lands bearing Revenue Survey No. 83, SCA/1931/2005 8/55 JUDGMENT 109, 110/1 and 110/2. Intention for Town Planning Scheme, Thaltej No.1 was declared covering the aforesaid lands on 28-12-1976 and the Draft Scheme came to be sanctioned by the State Government on 7-9-1978. Under the Draft Town Planning Scheme, the ownership and survey number shown as per the Record of Rights of 1983 came to be considered and therefore, at the relevant time, Dahyaji Motiji and others were considered as owners of land bearing Survey No. 113/1 and Smt. Minaben Mahasukhlal and others were considered as owners of land bearing Survey No. 113/2 and the said mistake continued. Under the sanctioned Draft Town Planning Scheme as well as Preliminary Scheme, Revenue Survey No. 113/1, admeasuring area of 6070 sq mtr was given O.P. No. 33/1 and in lieu of the same, the original land owners are alloted F.P. No.67 admeasuring 4299 sq mtr. Similarly, Survey No. 113/2, admeasuring 12141 sq mtr was given O.P. No. 33/2 and in lieu of the same, the original owners were SCA/1931/2005 9/55 JUDGMENT alloted F.P. No.68 admeasuring 8862 sq mtr. At the relevant time, when the draft scheme was sanctioned in the year 1978 and even in the preliminary Town Planning Scheme and finalized Town Planning Scheme, owners of land bearing survey No.83, 109, 110/1 and 110/2 are alloted F.P. No.34 (6704 sq mtr), F.P. No.57 (6010 sq mtr) and F.P. No.65 (20,434 sq mtr). It appears that F.P. No.65 is comprising of the land bearing survey No.113/2 also, meaning thereby, original land bearing survey No.113/2 is forming part of F.P. No.65. It appears that the petitioner of Special Civil Application No.12749 of 2003 were handed over actual and peaceful possession of F.P. Nos.34 and 57. However, only 15,789 sq mtr of F.P. No.65 was handed over to them, as with respect to remaining land, which was from the land bearing survey No.113/2, there was illegal and unauthorized construction put up by the Snehanjali society (petitioner of Special Civil Application No.1931 of 2005). It is the case of SCA/1931/2005 10/55 JUDGMENT the petitioner of Special Civil Application No.12749 of 2003 that in spite of the Town Planning Scheme has become final and they are allotted F.P. No.65 in the very original survey No., they are not handed over peaceful and vacant possession of entire F.P. No.65 and in spite of the repeated request and application, nothing further has been done in view of the various litigations by the Snehanjali society and therefore, they have preferred present Special Civil Application No.12749 of 2003 for an appropriate order directing the AUDA to hand over the peaceful and vacant possession of entire F.P. No.65 (remaining land from land bearing survey No.113/2, illegally occupied by the Snehanjali society) and to implement the finalized Town Planning Scheme. 6. It appears from the record that as stated above, initially prior to 1983, there was a mistake in the revenue records with regard to SCA/1931/2005 11/55 JUDGMENT land bearing survey Nos.113/1 and 113/2 and Dahyaji Motiji and others were shown as owners of land bearing survey No.113/1 instead of survey No.113/2 and Smt. Minaben Mahasukhlal and others were by mistake shown as the owners of the land bearing survey No.113/2 instead of 113/1 and therefore, with a view to correct the said error, an application was submitted by the power of attorney holder of the original land owners of land bearing survey No.113/2 for correcting the mistake in survey numbers on the basis of revenue records and an application was submitted for variation of the scheme to that effect by correcting the error in exercise of powers under Section 70 of the Act and as a result of the said application, the survey numbers are corrected by notification issued by the State Government dated 23-4-2001 and in lieu of survey No.113/1 admeasuring 12141 sq mtr, O.P. No.33/2, they are allotted F.P. No.67 admeasuring 8862 sq mtr and consequently in lieu of survey No.113/2 SCA/1931/2005 12/55 JUDGMENT admeasuring 6070 sq mtr of land , O.P. No.33/1, F.P. No.68 admeasuring 4419 sq mtr of land. Thus, by the aforesaid variation only survey numbers are changed and an error came to be corrected. That the petitioner Snehanjali society has also challenged the aforesaid variation vide notification dated 23-4-2001 and has prayed for to quash and set aside the said variation vide notification dated 23-4-2001. 7. Shri Bhavsar, learned advocate appearing on behalf of the petitioner Snehanjali society has submitted that with respect to land bearing original survey No.113/2, the Snehanjali society has filed Regular Civil Suit No.139 of 1990 before the learned Civil Judge (SD), Ahmedabad Rural and below Exh-5, the trial Court had granted the interim injunction restraining the AUDA from demolishing the construction existing on the land bearing survey No.113/2 and during the pendency of the said suit, the Town Planning SCA/1931/2005 13/55 JUDGMENT Scheme has become final and therefore, the Town Planning Scheme, Thaltej No.1 is bad in law and is a nullity as the Civil Suit No.139 of 1990 is pending before the civil Court and the injunction granted by the civil Court is in operation. It is also further submitted that before finalization of the Town Planning Scheme, the petitioner Snehanjali society, the bona fide purchaser of survey No.113/2 were to be given sufficient opportunity of stating their views but without hearing the said society and without considering the representation of the said society, the Town Planning Officer, State Government finalized the Town Planning Scheme and therefore, the scheme is required to be quashed and set aside as the same is against the principle of natural justice. It is also further submitted that no individual notice has been served upon the petitioner society i.e. Snehanjali society before finalizing the Town Planning Scheme as required under Section 52 read with Rule 26 of the Act and the SCA/1931/2005 14/55 JUDGMENT Rules and therefore, also the Town Planning Scheme, Thaltej No.1, which has become final, requires to be set aside as the same is null and void. It is also further submitted that the procedure as required to be followed under Section 56 with regard to disputed ownership, has not been followed and therefore, also the scheme is required to be quashed and aside. 8. Shri Bhavsar, learned advocate appearing on behalf of the petitioner – Snehanjali society has relied upon the judgment of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh and another V. Ahmedabad Municipal Corporation and others reported in 1992 Supp (1) SCC 5 in support of his submission and submitted that as the petitioner was not served with a special notice before finalization of the Town Planning Scheme and therefore, non-compliance with the requirements would vitiate the final scheme. Shri Bhavsar has also relied upon one another decision SCA/1931/2005 15/55 JUDGMENT of the Hon'ble Supreme Court in the case of Mansukhlal Jadavji Darji and another etc. V. Ahmedabad Municipal Corporation and others reported in AIR 1992 SC 752 in support of his above submission. Shri Bhavsar has also relied upon the judgment of the Division Bench of this Court in the case of Kaushikprasad Chandulal Mahadevia and anr V. the Ahmedabad Municipal Corporation and others reported in 11 GLR 993 in support of his above submission and submitted that the Town Planning Officer is bound to give sufficient opportunity of hearing to the petitioner to express his view. 9. It is further submitted that the Snehanjali society had purchased the land of land bearing survey No.113/2 by registered sale deeds with plinth level construction and therefore, the society had constructed the flats and row houses. It is submitted that the Snehanjali society is in possession of the disputed land since last more SCA/1931/2005 16/55 JUDGMENT than 18 years. 10. It is further submitted that so far as variation is concerned, proposed variation was not published in any Gujarati newspaper circulating within the jurisdiction of the appropriate authority and thus the town planning authority has not followed the mandatory requirement of the Act and the Rules of 1976. It is further submitted that earlier as per the final Town Planning Scheme, Thaltej No.1, F.P. No.67 was carved out from survey No.113/2 and F.P. No.67 was alloted to one Smt. Minaben Mahasukhlal and others in lieu of survey No.113/2 and as per the Form No.F, re-distribution and valuation statement, earlier F.P. No. 68 was carved out from survey No.113/1 and F.P. No.68 was allotted to original landlord Dahyaji Motiji and others and thereafter, the variation was made and survey No.113/1 was replaced by survey No.113/2 and survey No.113/2 was replaced by SCA/1931/2005 17/55 JUDGMENT survey No.113/1 in the form F and thus, the said variation has affected directly to the ownership rights of the petitioner qua original survey No.113/2. However, without publishing the proposed variation in any Gujarati newspaper, the scheme is varied vide aforesaid notification dated 23-4-2001 and thus, the variation is also required to be quashed and set aside. It is further submitted that the procedure, as required to be followed under Section of the Act read with Rule 35, has also not been followed. 11. It is submitted that the Snehanjali society purchased original survey No.113/2 by nine different registered sale deeds prior to finalization of the Town Planning Scheme and there are residential houses/row houses on the land bearing survey No.113/2 since many years and therefore, it is requested to grant the relief as prayed for. SCA/1931/2005 18/55 JUDGMENT 12. Special Civil Application No.1931 of 2005 filed by the Snehanjali society is opposed by AUDA, original owner of land bearing survey No.113/2 and owner of F.P. No.65 i.e. Nidhi society, who are alloted land bearing survey No.113/2 by way of forming part of the F.P. No.65 under the finalized Town Planning Scheme. Shri KB Trivedi, learned senior advocate appeared with Shri PR Nanavati, learned advocate appearing for AUDA, Shri Vikram Thakore learned advocate appeared on behalf of respondent Nos.6 to 11, original land owner of land bearing survey No.113/2 and Shri AJ Patel, learned senior advocate appeared on behalf of respondent No.5 – Nidhi society. 13. Shri KB Trivedi, learned senior advocate appearing on behalf of AUDA, appropriate authority under the Town Planning Scheme, has submitted that the intention of the Town Planning Scheme, Thaltej No.1 was declared on 28-12-1976. SCA/1931/2005 19/55 JUDGMENT Draft scheme came to be sanctioned on 7-9-1978 after following due procedure as required under the provisions of the Act. Under the draft Town Planning Scheme, the ownership and survey numbers shown as per the record of rights of 1983 came to be considered, however there was a mistake in the record of rights qua the survey numbers. Though Dahyaji Motiji and others were the owners of land bearing survey No.113/2, by mistake Smt. Minaben Mahasukhlal and others were considered as owners of the land bearing survey No. 113/2 and the said mistake continued. It is submitted that under the draft Town Planning Scheme as well as the preliminary scheme, revenue survey No. 113/1 was given O.P. No.33/1 and in lieu of the same, F.P.No.68 was alloted. Similarly, in lieu of the survey No.113/2, O.P. No.33/2, and in lieu of the same, F.P.No.67 was alloted. It is further submitted that under the draft scheme, which came to be sanctioned on 7-9-1978, original survey No.113/2 was forming part of F.P.No. 65 which is SCA/1931/2005 20/55 JUDGMENT allotted to owners of land bearing survey Nos. 110/1 and 110/2 i.e. Rameshbhai Naranbhai and others (i.e. erstwhile owners of Nidhi society) and therefore, when the land bearing survey No. 113/2 was allotted to Rameshbhai Naranbhai and others, forming part of F.P.No. 65, neither the Snehanjali society nor the original owners of land bearing survey No. 113/2 could have put up any construction, as survey No.113/2, forming part of F.P.No. 65 was belonging to Rameshbhai Naranbhai and others. That position also came to be continued even on finalization of preliminary scheme as well as finalization of Town Planning Scheme. It is further submitted that the preliminary Town Planning Scheme came to be sanctioned on 13-8-1986 and the same further came to be finalized in the year 1993. It is submitted that in spite of the fact that original survey No.113/2, forming part of F.P.No. 65 was allotted to the owners of land bearing survey Nos. 110/1 and 110/2 i.e. Rameshbhai Naranbhai and others, SCA/1931/2005 21/55 JUDGMENT initially, original owners of land bearing survey No. 113/2 and thereafter, the Snehanjali society continued to put up illegal and unauthorized construction and therefore the members, organizers and office bearers of the Snehanjali society were served with the notice dated 6-7- 1989 by the AUDA pointing out that they have continued to put up the construction illegally and unauthorizedly and they should stop putting up further construction and if the plans are sanctioned to produce the same. It is further submitted that in spite of the said notice dated 6-7-1989, the Snehanjali society continued to put up illegal construction on the land bearing survey No. 113/2, which was forming part of F.P.No. 65 and therefore, AUDA again served show cause notice dated 6-2-1990 by which the AUDA called upon the occupiers, officer bearers and organizer of the Snehanjali society to remove the illegal construction and thereafter the Snehanjali society filed Regular Civil Suit SCA/1931/2005 22/55 JUDGMENT No.139 of 1990 against the AUDA only for permanent injunction restraining the AUDA from demolishing the construction put up on land bearing survey No. 113/2 by contending inter alia that they are the owners of land bearing survey No. 113/2 and the learned trial Court granted temporary injunction below Exh-5 restraining the AUDA from removing any construction from the land bearing survey No. 113/2. It is submitted that in fact prior thereto, the draft scheme was already sanctioned in 1979 and even the preliminary Town Planning Scheme was also sanctioned on 13-8-1986. It is submitted that under the Town Planning Act, once the preliminary scheme is sanctioned, usually nothing further is required to be done except provisions for finance etc. and on sanctioning the preliminary scheme, it is virtually finalizing the Town Planning Scheme and as the interim injunction was in 1990 and prior thereto draft Town Planning Scheme as well as preliminary Town Planning Scheme were sanctioned, SCA/1931/2005 23/55 JUDGMENT it cannot be said that the Town Planning Scheme, Thaltej No.1 which has become final, is in any way illegal and/or even contrary to the ad interim injunction. It is further submitted that even there was no injunction granted by the learned trial Court not to finalize the Town Planning Scheme. 14. It is further submitted that so far as the variation of the scheme vide notification dated 23-4-2001 is concerned, the scheme is varied after following due procedure as required. It is submitted that the scheme was defective on account of an error qua survey Nos. 113/1 and 113/2 only and there was a mistake in description of the survey numbers and respective owners and therefore, an application was submitted by the power of attorney holder of original owners of original survey No.113/2 to vary the scheme and correct the error/mistake and therefore, it was proposed to the State Government for variation of SCA/1931/2005 24/55 JUDGMENT the scheme and it was requested to correct the error by variation of the scheme and the Government of Gujarat considered the said scheme to be defective on account of an error and was satisfied that the variation required in the said scheme, is not substantive and thereafter the draft variation was duly published in the Government notification and after satisfying that the necessary action for getting and affixing the copies of the Government notification dated 2-6- 2000 has been duly taken by the AUDA and as there were no objections to the draft variation received by the State Government and after consulting the AUDA, the Chief Town Planning Officer to the State Government and the Collector, Ahmedabad in the matter, the Government sanctioned the variation in the Town Planning Scheme, Thaltej No.1 (final) in exercise of powers conferred by sub section 6(b) of Section 70 of the Act and the same is in accordance with law and the provisions contained SCA/1931/2005 25/55 JUDGMENT in the Act. It is also further submitted that so far as the variation is concerned, it is with regard to survey No.113/1 and 113/2 only and there is no variation with regard to allotment of F.P.No. 67 and 68 and even it has nothing to do with F.P.No. 65 (original survey No.113/2) upon which the Snehanjali society has put up the illegal and unauthorized construction and which is required to be removed/demolished. Therefore, it is submitted that by variation, the rights of the petitioner Snehanjali society qua the land bearing survey No. 113/2 and respective final plots has not been affected and Dahyaji Motiji & Others, original owners of land bearing original survey No.113/2 continue to be allotted F.P. No.68. 15. It is further submitted by Shri Trivedi that the Snehanjali society has continued to put up illegal and unauthorized construction on the land bearing survey No. 113/2, though it was forming SCA/1931/2005 26/55 JUDGMENT part of F.P.No. 65, which was allotted to the owners of land bearing survey Nos. 110/1 and 110/2 and for which notices were issued in the year 1989 to stop illegal and unauthorized