Judgment

Arijit Pasayat, J.—Challenge in this appeal is to the legality of the judgment rendered by a Division Bench of the Gujarat High Court in a Letters Patent Appeal which was filed by Dahod Nagarpalika (in short ‘Nagarpalika’), the respondent No. 2 in this appeal. In the Letters Patent Appeal challenge was to the judgment rendered by a learned Single Judge in a writ petition filed by the present appellant for a direction to implement and execute a scheme sanctioned under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (in short the ‘Act’).

2. The learned Single Judge had directed to implement the Town Planning Scheme in question in accordance with the provisions of the Act and the Gujarat Town Planning and Urban Development Rules, 1979 (in short the ‘Rules’). A time limit for carrying out the directions was fixed and the last date was indicated to be 30th June, 1999. The Division Bench allowed the appeal and set aside the judgment rendered by learned Single Judge.

3. The factual position in a nutshell is as follows:

Several parties are involved in the dispute. They are Navinchandra Nanalal Kikawala and another, the tenant Pachubhai Matrubhai Pathak, another tenant Hasanjibhai K. Bhewala and a trust, known as “Abdulhassain Rasulbhai Kagawala Trust”, and Dahod Nagarpalika. The dispute centered around the town planning scheme, which was sanctioned on June 2, 1977 and was published on April 30, 1981. The dispute relates to the original plots of Kiklawalas and the Kagalwala Trust and the final plots were reconstituted from the original plots. The land belonging to Kiklawalas was bearing Revenue Survey No. 3/E. Later on, at the time of City Survey Settlement, the same was numbered as City Survey No. 453/E. The above-said land was admeasuring 2156 sq. mtrs. The Kagalwala Trust had the original plot, which was registered as Revenue Survey No. 2/A and was admeasuring about 2059 sq. mtrs. According to the scheme, which became final, the original plots, both of Kiklawalas and Kagalawala Trust came to be reconstituted. Some portion of the land belonging to the Kagalwala Trust was to be given to Kiklawalas, and a portion of the land of Kiklawalas was required to be hived off and was to be utilized for the purposes of garden and open air theatre. By this process, a reconstituted final plot, bearing No. 19, was to be given to Kiklawalas to admeasure about 1670.25 sq. mtrs. Final Plot No. 20 was to go to Kagalwala Trust admeasuring 1142 sq. mtrs. The land being given to Kiklawalas from the Kagalwala Trust had construction and tenant also. In the same way, some portion of the land, which Kiklawalas would get under the reconstituted plot, was also having tenants of their own.

4. Therefore, the main petition registered as Special Civil Application No. 9468 of 1996 was filed by Kiklawalas, praying for a writ of mandamus for the implementation and execution of the sanctioned scheme. Two other petitions, viz., Special Civil Application No. 7895 of 1997 and Special Civil Application No. 2462 of 1998 were filed by the tenant and the Kagalwala Trust. By a common judgment, the three Writ petitions were disposed of. The main petition was allowed and the Dahod Nagarpalika was directed to implement the town planning scheme in question. It was held that this should be done in accordance with the provisions contained in the Act and the rules framed thereunder. The further directions were that action was to be taken “at the earliest possible time without any further loss of time and in no case later than 30th June, 1999”. The other two petitions were dismissed. These orders were challenged before the Division Bench.

5. Before the High Court the Nagarpalika took the stand that it had applied for variation of the schemes. In view of the provisions contained in Section 71 of the Act, the direction as given by learned Single Judge could not have been given. Learned Single Judge had observed that mere possibility of variation in town pl