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Gujarat High Court
Judgename :J.B.MEHTA, P.D.DESAI
MURTUJAKHAN JORAVARKHAN BABI - Appellant
Versus
MUNICIPAL CORPORATION AHMEDABAD - Respondent
S.C.A. 1829 of 1971
Decided On : 09/16/1974
Constitution of India – Articles, 14, 19 and 31 – Bombay Town Planning Act 1915 – Section 9, 10, 11, 12 and 13 – Land Acquisition Act 1894 – Section 53 and 54 –Bombay Town Planning Rules 1955 – Rule 27 – Petitioner is owner of final Plot No. 51 of Town Planning Scheme said plot admeasures about – Notified Area Committee of Kankaria was the local authority for the Maninagar area within the meaning of sec. 9 of Bombay Town Planning Act 1915 to as Old Act – Notified Area Committee declared its intention to frame a Town Planning Scheme and a draft planning scheme was accordingly prepared in due course. In said draft scheme the land of the petitioner vas reserved for post office and it was directed that land shall remain vacant in possession of owner for fifteen years and that no superstructure shall be erected thereon during said period - Final Town Planning Scheme No. IV was thereafter duly prepared and by a notification sanction was accorded to same with effect from scheme subsequently came to be known as the Principal Scheme and will be referred as such in course of this judgment – Under Principal Scheme also plot in question was reserved for fifteen years for post office and a direction was given that the land shall remain vacant in possession of owner and no superstructure shall be erected thereon during the period of reservation – Held, Redistribution and Valuation Statement was produced at hearing only in support of this averment statement is a part of the final varied scheme and is therefore a public document – In fact it is in nature of a legislative enactment in sense that it takes effect as if it were enacted in Act – Therefore no objection can possibly be taken to its production at the hearing or to a reference being made to it. We have held while construing the word allotment that it means that the land has been assigned as an owner to postal authorities and consequently there has been a reconstitution of the plot. In these circumstances even if a wrong provision of law is referred to in the affidavit filed on behalf of respondents it cannot preclude them or the Court from arriving at the right conclusion on the basis of the statutory language – Law is not required to be pleaded and even if a wrong provision of law is pleaded it would always be open to a party litigant to correct the mistake and to advert to the right provision of law at hearing of cause therefore not impressed by the argument that there is any change of front on the part of the respondents on the question of determination of title of petitioner to land in question – At any rate change if any is not of such a nature as would prejudice petitioner is also no question of granting further time to petitioner to meet case –Petition is dismissed.
( 1 ) THE petitioner is the owner of final Plot No. 51 of Town Planning Scheme No. IV (Varied) of Maninagar (Manipur) at Ahmedabad. The said plot admeasures about 2662 sq. yds. In the year 1924 the Notified Area Committee of Kankaria was the local authority for the Maninagar area within the meaning of sec. 9 of the Bombay Town Planning Act 1915 (hereinafter referred to as the Old Act ). The Notified Area Committee declared its intention to frame a Town Planning Scheme in the year 1924 and a draft planning scheme was accordingly prepared in due course. In the said draft scheme the land of the petitioner vas reserved for post office and it was directed that the land shall remain vacant in possession of the owner for fifteen years and that no superstructure shall be erected thereon during the said period - The Final Town Planning Scheme No. IV (Manipur) was thereafter duly prepared and by a notification dated April 27 1931 sanction was accorded to the same with effect from July 1 1931 This scheme subsequently came to be known as the Principal Scheme and will be referred as such in the course of this judgment. Under the Principal Scheme also the plot in question was reserved for fifteen years for post office and a direction was given that the land shall remain vacant in possession of the owner and no superstructure shall be erected thereon during the period of reservation.
( 2 ) ON July 13 1939 a Government Notification was issued in exercise of the power conferred by sec. 45a of the Old Act under which the properties and rights of the Notified Area Committee in the Principal Scheme were vested in the then Municipal Borough of Ahmedabad with effect from February 1 1939 On November 15 1944 the Committee of Management of the Municipal Borough of Ahmedabad passed a resolution declaring its intention to vary the Principal Scheme and a notification to that effect was duly published in the Government Gazette on November 302 1944 (Annexure A ). Clauses 4 and 5 of the said notification indicated that it was inter alia proposed to acquire final Plot No. 51 which was originally reserved for a public purpose and to allot additional Plots for public purposes where no such provision was made in the Principal Scheme. By a notification dated December 21 1946 published in the Government Gazette dated December 27 1945 the Government accorded sanction to the variation of the Principal Scheme under sub-sec (6) of sec. 9 of the Old Act (Annexure B ). On December 16 1946 the draft varied scheme was prepared and it was published in the Government Gazette dated December 20 1946 In the draft varied scheme provision was made for the allotment of final Plot No. 51 to the postal authorities. The objections were invited and duly considered and the draft varied scheme was thereafter submitted to the Government for sanction under sec. 14 of the Old Act. The Government by its notification dated July 9 1948 (Annexure C) accorded its sanction to the said scheme under sub-sec. (2) of sec. 14 of the Old Act.
( 3 ) ON May 21 1953 the petitioner made an application for putting up a structure on the land in question. The said application was however rejected by the Town Development Officer Ahmedabad Municipal Corporation by his letter dated May 24 1953 on the ground inter alia that the plot in question having been reserved for post office sanction for construction thereon could not be granted. (Annexure D ).
( 4 ) ON April 1 1955 the Bombay Town Planning Act 1954 (herein after referred to as the Act) came into force. Sec. 90 of the Act repealed the Old Act but saved the steps taken under the Old Act with regard to the bringing into force of a Town Planning Scheme.
( 5 ) ON March 3 1966 the petitioner filed Special Civil Application No. 425 of 1966 in this Court challenging the Town Planning Schemes in question and the reservation of his plot under the said schemes for the purpose of post office. The constitutional validity of the Old Act as
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