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Manubhai Raichandbhai Shah v/s Nadiad Municipal Corporation & Others

    Letters Patent Appeal No. 1314 of 2016 & Special Civil Application No. 9370 of 2001

    Decided On, 12 March 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE VINEET KOTHARI & THE HONOURABLE MR. JUSTICE BIREN VAISHNAV

    For the Appearing Parties: J.F. Mehta, Soaham Joshi, Mehulsharad Shah, Advocates.



Judgment Text

Vineet Kothari, J.

1. Present Intra Court Appeal is directed against the order dated 21.9.2016 of the learned Single Judge dismissing Special Civil Application No.9370 of 2001 -Manubhai Raichandbhai Shah vs. Nadiad Municipal Corporation and others. The grievance of the Petitioner / Appellant is that the Town Planning Scheme finalised by the Respondent State Government on 19.5.1999 has not been varied as per the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (the Act) even though the Appellant had not only applied for the same but objected to the Draft Preliminary Scheme and therefore, the construction as raised of three Bungalows by the Appellant, who appear to be belonging to the same family, deserved to be protected and one of their vacant lands marked as Plot No.185/3 as per the Map produced by the Appellant cannot be given away for public purpose by Respondent Nadiad Municipal Corporation to another person one Jitendrabhai whose plot in the adjacent area over Plot No.318 (Shopping Centre) was being taken over for the public purpose by Nadiad Municipal Corporation in the Town Planning Scheme as finalised by the State.

2. The case seems to have little chequered history in the sense that on the land in question in Nadiad, the Appellants appear to have raised construction of three Bungalows even without the Plans duly approved by the Respondent Nadiad Municipal Corporation, even though the case set up by the Appellant is that they had applied with the Plans to the Respondent Corporation but they did not approve the same in time and though they gave some instructions to the Appellants for modifying their Plan, which the Appellant did, under the provisions of the Act for deemed approval of the maps, they proceeded to construct their three Bungalows on the said land in question leaving portion marked as Plot No.185/3 as vacant.

3. The dispute from the side of the Respondent Nadiad Municipal Corporation and State appears to be two fold viz. (i) public road in one of the Bungalows of the Appellants is required to be widened to the width of 6 mtrs. instead of present 3 mtrs. and according to the Respondent, the Appellants have encroached and constructed their boundary wall and the size of the final plot allotted to them under the Town Planning Scheme notified in 1995 there was only 3 mtrs. of road in front of their three Bungalows; and (ii) Unless, the common plot No.185/3 is handed over by the Appellants in terms of the Final Town Planning Scheme, the said Plot No.185/3 cannot be allotted to the third party Jitendrabhai, whose plot adjacent to Shopping Centre (Plot No.318) is taken from said Jitendrabhai and thus, the development of the said area to this extent is stuck in this litigation.

4. Mr. Mehul Sharad Shah, learned counsel for the Respondent Nadiad Municipal Corporation pointed out that the Respondent Corporation had to file a civil suit against the present Appellants in 1985 viz. Civil Suit No.117 of 1985 -Nadiad Municipal Corporation vs. Manubhai Raichand Shah which was decreed in its favour and even First Appeal filed by the present Appellants was dismissed by the First Appellate Court, against which a Second Appeal filed by Appellants being Second Appeal No.214 of 2013 is pending in this Court. Mr.Mehul Sharad Shah, learned counsel also pointed out that not only the Appellant raised the construction encroaching the land which vested in the State Government as per the provisions of the Act but taking shelter of the present litigation, the Town Planning Scheme notified by the State, which becomes part of the enactment itself, has been stalled by the Appellants. He submitted that objections with regard to the non-compliance with the Article 243ZD etc. of the Constitution of India are not even applicable to the facts of the present case as the Town Planning Scheme in question has been notified by the State Government after the following due procedure prescribed under the Act and therefore, the said objection of the Appellant cannot be now pressed into service. He drew attention to the Court towards two Affidavits filed by the Town Planning Authority before the learned Single Judge of this Court in this regard.

5. Mr. Soaham Joshi, learned Assistant Government Pleader supported the contentions raised by learned counsel for the Nadiad Municipal Corporation.

6. We have heard learned counsel at length and perused the record including map and site photographs produced by the Appellant himself and the provisions of the Act also.

7. The Town Planning Act of 1976 contains the various provisions relating to the framing of the Schemes for town development and the procedure to be adopted for the said purposes is given in Sections 40 to 76 in Chapter 5 of the said enactment. The relevant provisions for the controversy in hand are Section 48A which the vesting of the land in appropriate authority where the Draft Scheme has been notified by the State Government under Section 48(2) of the Act and Section 49 of the Act provides for restriction on use and development of the land after declaration of a scheme and on or after the date on which a Draft Scheme is published under Section 41 of the Act, no person shall within the area included in the Scheme carry out any development. Sub-section (2) of Section 49 further provides that no person shall be entitled to any compensation in respect of any damage, loss or injury resulting from any action taken by the appropriate authority under Section 70(1) of the Act. Section 52 discusses the provisions relating to Preliminary and Final Scheme and Section 65 of the Act provides that the Preliminary Scheme or Final Scheme shall have the effect as it were enacted in this Act. Section 66 of the Act provides for withdrawal of the scheme by the State Government where it is considered necessary or expedient to do so. Section 67(a) of the Act again provides that all the lands required by Appropriate Authority shall unless it is otherwise determined by any such Scheme vests absolutely in the appropriate authority free from all encumbrances. Section 68 provides for power of Appropriate Authority to summarily evict any person in occupation. Section 70 makes a provision for varying the scheme only on the ground of error, irregularity or informality upon which the Appropriate Authority may apply in writing to the State Government for the variation of the scheme.

8. Upon a harmonious reading of the aforesaid provisions of the Chapter 5 in conspectus thereof indicates the binding character of the Scheme, which takes care of the objections of the persons concerned at the initial stages, when the Draft Schemes are notified by the State Government. The argument raised by the Appellant that the Respondent Municipal Corporation in its initial stages viz. vide Minutes dated 26.9.1989 had decided to make variation in Town Planning Scheme No.3 and Final Plot No.186/2 belonging to the Appellant was included in the varied scheme on compassionate ground was not finally so given effect to by the State Government in the Preliminary Scheme or even Final Scheme and the objections raised by the Appellant were not considered. Learned counsel for the Appellant Mr. J.F. Mehta also emphasised that three Bungalows constructed by the Appellants were on the dead end of the Road and therefore, the Road in question in front of their houses or Bungalows could not be said to be public road and therefore, the widening of the same from 3 mtrs. width to 6 mtrs. width was not at all necessary as there was no ingress or outgress of any public members on that Road except the family members of the Appellant only. He also submitted that no public purpose was served or could be served by the Appellants including part of their original Plot No.186/2 and later on marked as Plot No.185/3 as common plot as the same was only to be allotted or intended to be allotted to a third party Jitendrabhai and therefore, the Final Scheme notified on 19.5.1999 deserved to be varied allowing the construction of the Appellants' Bungalows to stand as it is.

9. Mr. J.F. Mehta, learned counsel for the Appellants also contended that no notice under Section 52 was served upon the Appellant. This was factually controverted by the learned Assistant Government Pleader by pointing out the Affidavit of Mr.R.S. Gandhi, Senior Town Planner filed in this Court in 2002 in which the said Senior Town Planner has stated as under:

"As per the provision of the Act Petitioner had been invited to submit their representation, objection, suggestion on the proposals of Draft T.P. Scheme, Tentative Reconstitution, preliminary T.P. Scheme final T.P.S. Petitioner's were served individual notices Dated 1.10.1983, 2.5.1984, 9.9.95, 15.4.1988 & 20.2.1989. The xerox copies are enclosed herewith under the provision of section 52 of the Act & Rule 26 of the Rules, Petitioner was given ample opportunity to submit their representation before Town Planning Officer. Nadiad are Dev. Authority i.e. Nadiad Municipality planning Committee resolved vide its Resolution No.63 dated 26.12.1989 to consider the issue by preparing the varied Town Planning Scheme No.3."

Copy of these notices were also annexed with this Affidavit. Therefore, there is no merit in the said contention of the Appellants.

10. These contentions were vehemently opposed by learned counsel for the Respondents and they submitted that not only the Public Road in question deserved to be widened to 6 mtrs. as per the Final Scheme but it could not be claimed by the Appellants that the members of public road had no right of way or ingress or outgress on the said public road which they had partly encroached to leave only 3 mtrs. width of the road. They also refuted the right of the Appellants to retain common plot No.185/3 admeasuring 454 sq.mtrs. as unless the same is allotted to Jitendrabhai whose land over the Plot No.318 (Shopping Centre) developed by Nadiad Municipal Corporation is vacated, the public purpose would not be served. They further contended that Final Scheme notified by the State on 9.5.1999 cannot be varied or altered to suit the personal conveniences of the land holders, especially those like the present Appellants who had encroached the part of the public land and had even constructed their Bungalows without proper approval of the Plans by the Competent Authority, so much so that even Nadiad Municipal Corporation had to file a suit for declaration and injunction against these Appellants in 1985 to prevent any construction on the said plot of land without the approval of the maps by the concerned authority and having lost in two round of litigations in that civil suit, the Appellant is now in the aforesaid Second Appeal before this Court and have also raised the construction in question.

11. We had heard this matter on 9.3.2021 and Mr. Dhaval Dave, learned Senior Counsel appeared with Mr. J.F. Mehta, learned counsel for the Appellant and we had passed the following order on 9.3.2021 and then kept the matter for today:

"1. We have heard both the learned counsel and perused the Map and the latest Affidavit of the Petitioner-Appellant Mr.Manubhai Raichandbhai Shah dated 18.02.2021 and perused the site photographs also. We are prima facie of the opinion that had the matter been settled in terms of the Court Order dated 30.09.2019 amicably, in which, the Court gave a very reasonable suggestion to both the sides, the things would have settled by now but it seems that the Petitioner-Appellant has given a Representation in pursuance to the said Order dated 30.09.2019 not in tune with the Town Planning Scheme notified and were not willing to hand over the vacant possession of the plot No.185/3 (Common Plot) to the Nadiad Municipal Corporation, which was intended to be allotted to one Jitendrabhai whose present site a smaller strip type plot as shown in map behind the Shopping Centre on Plot No.318 shown in the Map could have been utilised for other public purposes.

2. The Town Planning Scheme also envisages the widening of the Road from the present 3 meters width to 6 meters width in front of the three bungalows constructed by the Petitioner-Appellants and which also, in our opinion, is a genuine requirement of the Town Planning Scheme notified by the State. The variation in the scheme therefore at the instance of the present Petitioner-Appellant does not seem to be possible or desirable.

3. There is one Second Appeal filed by the present Petitioner-Appellant also, which is pending before the learned Single Judge being Second Appeal No.214 of 2013 which was also noticed by the Coordinate Bench in the order dated 30.09.2019.

4. Mr.Dhaval Dave, learned Senior Counsel appearing for the Petitioner-Appellant prays for short accommodation to take instructions from the Petitioner-Appellant whether his client would immediately hand over the vacant possession of the Plot No.185/3 to the Respondent Corporation or not and also permit the Respondent to widen the Road upto 6 meters width as envisaged in the Town Planning Scheme or not, failing which the Court may be constrained to pass adverse orders against the Petitioner-Appellant including the demolition of the property of the Petitioner-Appellant which is said to be constructed without any plans approved, to the extent required by the Municipal Corporation.

5. Time prayed for is allowed. Put up on 12.3.2021 on top of the list."

12. Today, Mr.Dhaval Dave, learned Senior Counsel has not appeared in the matter and Mr. J.F. Mehta, learned counsel has argued on behalf of the Appellants and had submitted before us initially that the Appellants are not agreeable to the aforesaid suggestion in the said order dated 9.3.2021, therefore, he may be allowed to address the Court on the merits of the case, which the Court permitted and he made submissions on behalf of the Appellant.

13. Having heard learned counsel for the parties, we are satisfied that there is no merit in the present Appeal and the same deserves to be dismissed. The Appellant does not seem to have come to the Court with bona fides or with clean hands and have sought to merely take advantage of the length of litigation or the period of time spent in the litigation right from day one. The framing of the Town Planning Scheme under provisions of the Act is prerogative as well as the obligation of the State Government for the purpose and the sound and proper development of the town and the Nadiad Municipal Corporation hardly has any determinative role in the process except to implement the Final Scheme as notified by the State Government. In this view of the matter, the initial Resolution relied upon by the Appellants of 26.12.1989 that the Town Municipality agreed with them to vary the Scheme in respect of Plot No.186/2 is of little consequence.

14. The Appellants cannot insist upon varying the Preliminary Scheme as well as Final Scheme under the Act on the basis of such Resolution of Municipality at all. The Appellants also seem to have constructed these three Bungalows or Houses of the land of the original Plot No.186/2 without any approval of Plan of the Municipal Corporation or by the Town Planning Authority. The said construction appears to be undertaken way back in 1984-85 even before Application was made for the purpose of such approval and that is why the Municipal Corporation had to file a civil suit in the Trial Court viz. Civil Suit No.117 of 1985 which was decreed in favour of the Municipality. Even the First Appeal filed by the Appellant failed and Second Appeal is said to be filed by the Appellant viz. Second Appeal No.264 of 2013 which is now pending before the learned Single Judge of this Court.

15. Be that as it may, we do not find any merit in the objections raised by the Appellants. The legal contention raised about applicability of Article 243ZD etc. has no application to the facts of the present case as the same applies only if the Scheme in question is framed by the concerned Municipality. The said Provisions in the Constitution of India in Chapter 9A only deal with the Municipalities and has no application to the Town Planning Schemes notified under provisions of the 1976 Act. There is no dispute or at least a valid challenge before us about the procedure followed under provisions of the Act.

16. Apparently, the Appellant seems to have constructed their three houses with impunity in the teeth of litigation initiated by Nadiad Municipal Corporation and even without obtaining prior approval of their construction plan. Much after that, putting a bold face that road in front of their Houses is not required to be widened 6 mtrs. as notified in the Final Scheme or that Common Plot No.185/3 to be deducted from their original Plot No.186/2 under the Final Scheme cannot be given away to other person, i.e. Jitendrabhai, are absolutely unsustainable contentions. It is not at all for the Appellants to contend that since the Road in question is not a thorough fare or a public road as such and therefore, 3 mtrs. width of the road in front of their houses is enough, cannot be a ground to vary the Final Scheme as envisaged under Section 70 of the Act, for which the Appellant has no role to play and it is only for the

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Appropriate Authority viz. Municipal Corporation who can do so if it is satisfied that there is an error, irregularity or informality in the Preliminary or Final Scheme as notified by the State Government. None of such error, irregularity or informality has been established, much less to be recommended by Nadiad Municipal Corporation of the State Government for such variation in the Final Scheme already notified which became part of the Act itself and thus an Act of State Legislation. On the other hand, the said Nadiad Municipal Corporation is in litigation on the other hand with the present Appellant. 17. Therefore, we are constrained to observe that the present Appellants have no equity, much less legal foundation to ask for any variation in the Final Scheme notified by the State Government under the Act. On the contrary, the facts brought on record before us clearly show their reticent attitude and noncompliance with the provisions of law and the Final Scheme notified by the State Government to the hilt, without any justification. Therefore, we do not find any ground to interfere with the order passed by the learned Single Judge dismissing the writ petition filed by the Appellant and we dismiss the same without any order as to costs. 18. We direct the Respondents -Nadiad Municipal Corporation and the State Authorities to ensure the full compliance with the Final Scheme notified by the State Government within a period of Eight Weeks from today and by completing process of taking Possession of Common Plot already vested with State namely, Plot No.185/3, allotment to Jitendrabhai, widening of Public Road to 6 mtrs. width and report the same by way of an Affidavit of the concerned authority from the side of the Respondents. The said Compliance Report may be placed in Chambers for perusal. 19. With the aforesaid observations, the present Letters Patent Appeal is dismissed. No costs.
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