2006 Supreme(Guj) 290

Gujarat High Court
Judgename :M.R.SHAH
MODINAGAR CO-OP HOUSING SOC.LTD - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 24414 Of 2005
Decided On : 05/02/2006

Headnote:Point in Issue :

       Allotment of plot - Construction - T.P. scheme not finalised - Objections pending - Stay order - Propriety of - Finding as to.

       Head Note :

       Gujarat Town Planning and Urban Development Act, 1976 (Guj Act 27 of 1976) - Sections 40(3)(e), 44 to 48, 51, 52, 65(3), 66, 67, 67(b) and 249 - Gujarat Panchayat Act, 1993 (Guj Act 18 of 1993) - Section 108(4) - Allotment of plot - Construction - T.P. Scheme not finalised - Objections pending - Stay order - Propriety of - Finding as to - The dispute is with regard proposed final Plot No. 70 consisting of Gauchar land - The land was resumed by Government and Panchayat - Resolution to hand over possession of land to petitioners and Respondents Nos. 4 and 5 had been cancelled - It appears that AUDA in an undue haste granted the development permission of plot to petitioner and Respondents Nos. 4 and 5 even pending objections by State Government and Collector Ahemdabad - In view of above position and dispute and when draft T.P. Scheme is also not sanctioned by State Government and even when final Plot No. 70 is at present at proposal stage it cannot be said that the petitioner and Respondents Nos. 4 and 5 have become absolute owners of final Plot No. 70 - Therefore, Respondent No. 2 has rightly issued the stay order restraining the petitioner and Respondents Nos. 4 and 5 from putting up any further construction of the plot - It shall also avoid further multiplicity of proceedings and complications - It cannot be said that there is any illegality committed by Respondent No. 2 which requires interference of the Court in exercise of powers under Article 226 of Constitution.

       Held :

       At the outset it is required to be noted that at present the TP Scheme No. 28 (Ghatlodia-Sola-Chandlodia) is at the stage of Draft TP Scheme, which is pending with the State Government for its sanction under Section 48(1) of the Act and under the proposed Draft TP Scheme in lieu of various Survey Numbers belonging to various persons i.e. Survey Nos. 288/3 and other Survey Numbers of Sola and Ghatlodia, OP No. 76 and other admeasuring 1,50,910 sq. mts. of land it is proposed to be allotted final Plot No. 70 admeasuring 75,455 sq. mts. and the said proposed final Plot No. 70 is consisting of various Survey Numbers i.e. Survey Nos. 199 (part), 200, 203, 276, 277/1+2, 278/1, 277/3, 278/2, 204 (part), 205 (part), 206 (part), 207 (part), etc. It appears that pending the Draft TP Scheme to be sanctioned by the State Government and in anticipation of sanctioning the said Draft TP Scheme by the State Government, the AUDA granted the development permission in favour of the petitioners and the respondent Nos. 4 and 5 with respect to the proposed final Plot No. 70 on certain conditions. It appears and it is the contention on behalf of the petitioners and the AUDA that the said development permission was granted as per the practice adopted by the AUDA pending sanctioning of the Draft TP Scheme/TP Scheme on condition that before putting up the construction and/or the said permission was subject to obtaining necessary NOC of the owners of the original Survey Numbers, which will be now forming part of proposed final Plot No. 70. At the outset it is also required to be noted that as per the provisions of the TP Scheme, unless and until the Final TP Scheme is sanctioned, it cannot be said that the person in whose favour the land is allotted becomes the absolute owner and, therefore, as such, pending even Draft TP Scheme before the State Government and before it is even sanctioned normally the AUDA ought not to have and/or should not have granted the development permission in anticipation of sanctioning of the Draft TP Scheme.

       However, the State Government has already resumed the said Gauchar land and Bunyadi sala land in exercise of powers under Section 108(4) of the Gujarat Panchayat Act and not only that but the resolution passed by the Sola Gram Panchayat dated 04.02.2003 being Resolution No. 4 of 2003 by which it was resolved to hand over the possession of the aforesaid lands (Gauchar and Bunyadi Sala lands) is also cancelled by the TDO on 1st August, 2005 in exercise of powers under Section 249 of the Act and, therefore, there is neither any resolution in existence nor the consent of the owners of the Survey Nos. 204 paiki, 205 paiki and 206 paiki is in existence and in view of the above objections raised by the Collector, Ahmedabad, and pending the said objections before the State Government even against the proposed Draft TP Scheme and objections by the State Government to include the aforesaid Survey Numbers i.e. Gauchar and Bunyadi sala land, etc. in to proposed final Plot No. 70 and pending the Draft TP Scheme before the State Government for its sanction, considering the provisions of the TP Act, the petitioners and the Respondent Nos. 4 and 5 cannot be permitted to put up any constitution on the disputed land, unless and until, the Draft TP Scheme has become final and any construction till then would be illegal.

        It appears that the AUDA for some reasons and in an undue haste granted the development permission even pending the objections by the State Government and the Collector, Ahmedabad, to the Draft TP Scheme and the dispute with regard to the lands in question, which is not proper. Now considering the above position and the dispute and over and above that when the Draft TP Scheme is also not sanctioned by the State Government and that even Final Plot No. 70 is at present at proposal stage, it cannot be said that the petitioners have become the absolute owners of final Plot No. 70 and/or that proposed Final Plot No. 70 absolutely vests in the petitioners, considering the provisions of the TP Act. Considering the provisions of the TP Act, there is no valid title at present in favour of the petitioners so far as proposed final Plot No. 70 is concerned. There might be a practice of the AUDA to grant the development permission pending the Draft TP Scheme and/or preliminary Scheme before the State Government and to allow the proposed allottee to put up the construction, however, the said practice is not a healthy practice and/or the same is not in accordance with law, unless there is any urgency. Unless and until the TP Scheme has become final, the proposed allottee does not become the absolute owner and the land vests in the said owners/allottees only on finalization of the TP Scheme. At the stage of proceedings prior to Section 67 of the Act, normally, no permission may be granted and/or no proceedings under Section 67 of the Act can be initiated in anticipation of the Draft TP Scheme, more particularly, so far as the present case is concerned there are serious disputes with regard to the Government land which is proposed to be allotted to the petitioners and/or the Respondent Nos. 4 and 5 by way of proposed final Plot No. 70 and therefore, the Respondent No. 2 has rightly issued the Stay Order restraining the petitioners and/or the Respondent Nos. 4 and 5 from putting up any further construction and in fact, the same would be to avoid any further multiplicity of proceedings and further complications. Suppose the petitioners are permitted to put up the construction and if ultimately the Draft TP Scheme is not sanctioned and the disputed Survey Numbers are not allotted to the petitioners as part of final Plot No. 70, then, the petitioners would be required to demolish the construction and/or the construction put up by the petitioners would have to be declared as illegal. To avoid the aforesaid eventuality, pending the Scheme before the State Government, if the petitioners are restrained from putting up the constructions and even by holding that the petitioners cannot be permitted to put up the construction in Gauchar land/Government land and if Stay Order is granted, it cannot be said that there is any illegality committed by the Respondent No. 2, which requires interference of this Court in exercise of powers under Article 226 of the Constitution of India. As stated hereinabove, in fact, the Respondent No. 2 is justified in issuing the Stay Order. It is required to be noted that even as stated above inspite of the earlier Stay Order, the petitioners continued to put up the construction illegally, for which, the criminal complaints were required to be filed. [Para 7]

       Law Laid Down :

       Unless petitioners have become absolute owners of the land, stay order with regard construction on land is valid and justified.

       Conclusion :

       In view of the fact that the draft TP scheme by which final Plot No. 70 is proposed to be allotted is yet not sanctioned and as the Collector Ahmedabad had submitted its objections the petitioners cannot be permitted to put up construction on the land of the said plot - There is no illegality in stay order passed by Respondent No. 2.

       Decided in Favour of :

       Respondent