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Gujarat High Court
Judgename :B.C.PATEL, G.T.NANAVATI
MUNICIPAL CORPORATION OF AHMEDABAD - Appellant
Versus
CHIMANLAL ESTATE OWNERS ASSOCIATION - Respondent
Letters Patent Appeal243 of 1986
Decided On : 12/18/1993
Election – Constitution of India, 1950 – Article 226 – Gujarat Panchayat Act, 1961 – Section 96 (4) – Panchayat – Resolution – Scheme – Construction of Hurt – Resolution of Executive Committee for making construction of huts in the grazing land of village or providing residence to the village people under the Central Governments rehabilitation scheme and the order passed by Collector, for resuming such land from the grazing land of village Nabipur, for such rehabilitation – Challenged – Case of the petitioners is concerned village stood inhabited by about 4,000 people belonging to various creeds including Adivasis and Harijans and other economically backward persons. Most of the village population depends upon agriculture. Land bearing survey No. 1048 in outskirt of village Nabipur has been used as grazing land from times immemorial. The same is meant for grazing for more than 1100 cattle heads. In compliance of the 20 Points Programme of the Government, the Taluka Development Officer wrote a letter to the petitioner - Nabipur Gram Panchayat to mutate the aforesaid grazing land into Gamtal (Gharthal) land with a view to plotting the same for landless persons – Held, It is no doubt true Section 96 (4) does confer power upon the Government to resume land including grazing land for any public purpose – However, such power has to be exercised reasonably and upon consideration of the relevant factors. On a look at the impugned order dated 5-4-1982 it clearly appears that the learned Collector has failed to apply his mind with learned Collector has failed to apply his mind with regard to the actual requirement of grazaing land for people of village Nabipur and the actual availabity of grazing land to them. It is an admitted fact that even prior to the impugned order for resumption of portion of garzing land was a demand from petitioner Panchayat for annexing more grazing land as the land available was short of the requirement of grazing for the cattle heads in village Nabipur. It also appears that particulars of landless persons who are in contemplation to be rehabilitated are also not forthcoming – They also do not appear in the affidavit in reply – As against that people of Nabipur village at large have objected to the resumption of grazing land for non-agricultural use of providing residence to landless persons – If there are no landless persons, in fact requiring land, the proposed resumption would be futile. It is not the case of the respondents that some persons from other villages or of other places are sought to be rehabilitated in the outskirt of village – The learned Collector has not weighed the purpose for which resumption is to be made and purpose of grazing in the context of the actual requirement of the village – Therefore, clearly appears that impugned resolution and the impugned order respectively Annexure C and D apparently suffer from unreasonableness and nonapplication of mind to the very relevant factors – Finally it also does not appear on face of impugned order that objections of the village people as also the petitioners have in fact been considered by Collector – Impugned resolution and order Annexure C and D are here by quashed and set aside – Petition allowed.
( 1 ) BOTH these appeals arise out of the judgment and order passed by the learned single Judge of this Court in Special Civil Application no. 6127 of 1983 (Chimanlal Estate Oqners Asso. v. Ahmedabad Muni. Corpo. , 1986 (2) GLR 1323) Letters Patent Appeal No. 243 of 1986 is filed by the ahmedabad Municipal Corporation, which was respondent No. 1 in the petition. Letters Patent Appeal No. 30 of 1987 is filed by the State of Gujarat, which was respondent No. 2 in the petition. As both these appeals arise out of the same judgment and raise the same point, they are disposed of by this common judgment.
( 2 ) SPECIAL Civil Application No. 6127 of 1983 was filed by Chimanlal Estate owners Association, an association registered under the Bombay Non-Trading corporation Act. The association owns certain properties situated on Ashram Road in the city of Ahmedabad. In respect of one of such properties, the Association submitted its first plan for construction and it was sanctioned on 1-12-1980. The second revised plan was submitted on 23-3-1981 but was rejected on 26-3-1981. Again, a revised plan was submitted on 27-12-1982 claiming 1. 40 FSI (Floor space Index ). That was also rejected on 17-2-1983. According to the Association, the last revised plan was rejected solely on the ground that the available FSI is only 1. 00 and not 1. 40 as claimed by it. Thereafter on 12th August, 1983, the Government of Gujarat exercising its powers under the Gujarat Town Planning and Urban development Act, 1976 (hereinafter referred to as "the 1976 Act") issued a notification sanctioning the draft development plan submitted by the Corporation providing for FSI of 1. 00 in respect of buildings abutting on Ashram Road.
( 3 ) AGGRIEVED by the rejection of its plan and the said notification the Association filed the pettion under Art. 226 of the Constitution and prayed : (a) that the said notification be declared as ultra vires the provisions of the gujarat Town Planning and Urban Development Act, 1976; (b) for a declaration that the permissible FSI in respect of the building abutting on Ashram Road cannot be less than 1. 33 in view of the final development plan valid for the period 1965 to 1975; (c) to declare that even in respect of the city area, the Regulations framed by the Ahmedabad Urban Development Authority will apply and, therefore, the Corporation is required to sanction the plans taking into consideration those Regulations and the FSI provided under those Regulations, and (d) for certain directions to the respondent Corporation and the State of gujarat. Appreciating the need for land development in urban areas in view of the commercial and industrial development and exodus of population from villages into towns and cities, the Bombay Legislature enacted Act No. 1 of 1915 known as The Bombay town Planning Act, 1915 in order to provide for planned and controlled development and use of land in urban areas. At that time, Ahmedabad had a Borough Municipality. On 18-4-1927, it declared its intention to make a Town Planning Scheme. After declaring its intention, it prepared various Schemes and in these appeals we are concerned with the Scheme known as "town Planning Scheme, Ellisbridge No. 3", which was finalised on 15-3-1945. The said Scheme continued till the Bombay town Planning Act, 1954 being Bombay Act No. 27 of 1955 (hereinafter referred to as "the 1954 Act") came to be enacted. The 1915 Act was repealed by it but, because of the saving clause, final scheme continued to be in force. As several deficiencies in the provisions of the 1915 Act came to the notice of the Government and the Legislature, one of which was that each Town Planning Scheme was prepared exclusively and independently for its own area without any relation to one another or without relation to the general development of the town as a whole on an integrated basis, the 1954 Act introduced a provision for the first time making it obligatory upon every local authority to c
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