2005 Supreme(Guj) 710

2007 (1) GCD 806 (Guj)
Hon’ble Mr. Justice M.R. Shah
Snehanjali Co-operative Housing Society Ltd. Thro’ Its Chairman
Versus
State of Gujarat & Ors. (Ahmedabad)
Special Civil Application No. 1931 of 20051
Decided on 20/10/2005

Point in Issue :
Possession — As bona fide purchaser — Construction put up — Claim for protection — Sustainability — Finding as to.

Headnote:Head Note :

       (a) Gujarat Town Planning and Urban Development Act, 1976 (Guj. Act 27 of 1976) — Sections 41, 52, 56 and 70 — Gujarat Town Planning and Urban Development Rules, 1976 — Rule 26 — Construction — Put up illegally and without permission — Claim for — Protection — Sustainability — Finding as to — Petitioner Snehanjali Co-operative Housing Society has claimed for quashing and setting aside the Town Planning Scheme Thallej No. 1 (Final) in so far relates to original Survey No. 113/2 — Court found nothing on record that construction put up by petitioner Society on the land bearing Original Survey No. 113/2 (Forming part of F. R. No. 65) was after obtaining necessary development permission — The Construction being absolutely illegal cannot be protected — It is also because as Original Survey No. 113/2 was proposed to be allotted under Final Development Scheme to owners of land bearing Survey No. 110/1 and 110/2 forming part of F.P. No. 65 — Even if petitioner Society had applied for permission it could not have been granted being on the land of other persons — These facts were within the knowledge of members of petitioner Society, therefore, if knowing fully well when construction is made unauthorisedly and illegally on the land belonging to other persons it is required to be demolished and removed — More so when alleged illegal construction is put up in spite of AUDA an appropriate authority restraining the petitioner Society from putting up any further construction.

       Held :

       Nothing is on record that even the construction put up by the Snehanjali Society which is on the land bearing original Survey No. 113/2 (forming part of F.P. No. 65) is after obtaining necessary development permission and/or sanctioning the plan. Therefore, even the construction which has been put up by the Snehanjali Society on the land bearing original Survey No. 113/2 forming part of F.P. No. 65 is absolutely illegal and without obtaining any development permission and getting the plan sanctioned and, therefore, also the same cannot be protected. If the petitioner Snehanjali Society had submitted an application for development permission and/or applied for sanctioning of the plan for putting up the construction on the land bearing original Survey No. 113/2, the same would not have been granted by the authority, as original Survey No. 113/2 was proposed to be allotted under the finalized development scheme to the owners of land bearing Survey Nos. 110/1 and 110/2, forming part of F.P. No. 65 and naturally the development permission would not have been granted by the AUDA for putting up construction on the land of other persons.

       It appears that the office bearers and members of the Snehanjali Society were aware of the fact that the original Survey No. 113/2 is allotted to the owners of land bearing Survey Nos. 110/1 and 110/2, forming part of F.P. No. 65 and in fact there was a request made by them also to change the same subsequently i.e., after the preliminary scheme came to be sanctioned. Therefore, if knowing fully well that the construction is being put up unauthorisedly and illegally on the land belonging to other persons and now for the purpose of implementation of the Town Planning Scheme which has become final for handing over peaceful and vacant possession of F.P. No. 65 to the owners of land bearing Survey Nos. 110/1 and 110/2, if the construction on the land bearing Survey No. 113/2 which is illegal and unlawful, is required to be demolished and/or removed, the consequences must follow. As stated above, first of all, the power of attorney holder of the original land owners of land bearing Survey No. 113/2 could not have sold the land bearing Survey No. 113/2 to the Snehanjali Society in the year 1983-84 and/or subsequently, as original Survey No. 113/2 was allotted to the owners of the land bearing Survey Nos. 110/1 and 110/2 under the finalized draft development scheme being part of F.P. No. 65 in spite of aforesaid, as stated above, the Snehanjali Society continued to put up construction unauthorisedly and illegally in spite of the AUDA an appropriate authority restraining the Society from putting up any further construction.

        [Para 20]

       When the Snehanjali Society has put up the construction illegally and unauthorisedly on the land bearing Survey No. 113/2, which belongs to the owner of F.P. No. 65 and that too when the construction is illegal and unauthorized, the prayer of the petitioner Snehanjali Society to restrain the AUDA from demolishing and/or removing the construction on the land bearing Survey No. 113/2 (now forming part of F.P No. 65) cannot be granted. Granting of special relief would not be in consonance with the provisions of the Town Planning Scheme and the sanctioned scheme and granting of such relief would amount to directing the AUDA not to implement the Town Planning Scheme, which has become final. Under the circumstances, there is no substance in Special Civil Application No. 1931 of 2005 and the same is required to be dismissed. [Para 24]

       Head Note :

       (b) Gujarat Town Planning and Urban Development Act, 1976 (Guj Act 27 of 1976) — Sections 46 and 52 — Gujarat Town Planning and Urban Development Rules, 1976 — Rules 23 and 26 — Town Planning Scheme — Having become final — Challenge to — Absence of service of notice — Sustainability — Finding as to — Petitioner Society has never submitted any objection at any stage of the scheme even when it was made final — Therefore, there was no requirement of service of individual notices as contended by petitioner Society — In the case even the draft Town Planning Scheme came to be sanctioned in the year 1978 and at that time the petitioner Society was not even born as to claim any opportunity or issuance of notice — Contention with regard breach of Section 46 read with Rule 23 of the Act and Rules is concerned it suffice to say that it is applicable only when the dispute is with regard to the ownership — In the present case there is no dispute with regard to the ownership under the scheme, therefore, submission to set aside scheme for want of notice has no substance.

       Held :

       So far as the challenge to the Town Planning Scheme which has become final, in breach of Section 52 read with Rule 26 and Section 46 read with Rule 23 is concerned, it is required to be noted that no individual notices are required to be served as contended on behalf of the petitioner Society. Petitioner has never submitted any objection. It is required to be noted that in the present case even the draft Town Planning Scheme came to be sanctioned in the year 1978 and at that time, even the Snehanjali Society was not born, therefore, there was no question of giving them any opportunity and/or issuing any notice. So far as the contention with regard to the breach of Section 46 read with Rule 23 of the Act and Rules is concerned, it is applicable only when the dispute is with regard to the ownership. In the present case, there is no dispute with regard to the ownership under the Town Planning Scheme and, therefore, the said submission has no substance. [Para 21]

       Head Note :

       (c) Gujarat Town Planning and Urban Development Act, 1976 (Guj Act 27 of 1976) — Section 70 — Scheme — Variation in — Procedure required to be followed — Absence of — Finding as to — The variation incorporated is for correcting the error and that too qua correction of original Survey Nos. 113/1 and 113/2 with regard respective owners — Otherwise earlier also Dahyaji Motiji and others were allotted F.P. No. 68 and after variation also they are allotted the same F.P. No. 68 — There is no variation with regard to F.P. No. 65 upon which petitioner Society has made unauthorised and illegal construction — Therefore, it is not understandable how by variation petitioner is affected — The State Government considered the scheme to be defective on account of an error by mentioning Survey No. 113/1 and 113/2 by mistake, therefore, the proposed draft variation was published in the Government of Gujarat dated 02.06.2000 and as maintained in notification dated 23.04.2001 the Government was satisfied that necessary action for getting and affixing copies of the said notification has been duly taken by AUDA and as no objection is received the variation is sanctioned — In the facts it cannot be said that procedure required under the Act has not be followed.

       Held :

       It is required to be noted that the variation is for correcting the error and that too qua correction of original Survey Nos. 113/1 and 113/2, the allotment of final plots qua respective owners remain the same and there is a correction with regard to the survey numbers only and instead of Survey No. 113/1, Survey No. 113/2 is mentioned and instead of Survey No. 113/2, Survey No. 113/1 is mentioned. Otherwise, earlier also, Dahyaji Motiji & Others were allotted F.P. No. 68 and after variation also they are allotted F.P. No. 68. It is also required to be noted that there is no variation with regard to F.P. No. 65 upon which there is illegal and unauthorized construction put up by the petitioner Snehanjali Society. Therefore, it is not understandable how by variation, the petitioner is affected.

       The State Government considered the scheme to be defective on account of an error by mentioning Survey Nos. 113/1 and 113/2 by mistake and the State Government was satisfied that the variation required in the said scheme is not substantial and, therefore, the proposed draft variation was published in the Government of Gujarat dated 02.06.2000 and as mentioned in the notification dated 23.04.2001, the Government was satisfied that necessary action for getting and affixing copies of the said notification has been duly taken by the AUDA and as no objection to the draft variation, have been received by the State Government, the variation is sanctioned. Considering the above, it cannot be said that the procedure as required under Section 70 of the Act has not been followed. Thus, challenge to the variation also fails. [Para 22]

       Law Laid Down :

       It is the duty of the appropriate authority to implement the Town Planning Scheme.

       Appearance :

       Mr. Mahesh Bhavsar, Advocate, for the Petitioner.

       Mr. D.A. Desai, Assistant Government Pleader, for the Respondent Nos. 1 and 2.

       Mr. K.B. Trivedi, Senior Advocate with Mr. P.R. Nanavati, Advocate for the Respondent Nos. 3 and 4.

       Mr. A.J. Patel, Advocate for the Respondent No. 5.

       Mr. Vikaram J. Thakor, Advocate for the Respondent Nos. 6 to 11.

       Conclusion :

       For the purpose of implementation of the Town Planning Scheme which has become final and for the purpose of handing over the peaceful and vacant possession of entire F.P. No. 65 is to be handed over to petitioner and for that if construction is to be removed then consequences must follow.

       Cases Referred :

       Jaswantsigh Mathurasingh & Anr. vs. Ahmedabad Municipal Corporation & Ors., 1992 Supp (1) SCC 5;; Mansukhalal Jadavji Darji & Anr. etc. vs. Ahmedabad Municipal Corporation & Ors., AIR 1992 SC 752;; Kaushikprasad Chandulal Mahadevia & Anr. vs. The Ahmedabad Municipal Corporation & Ors., 11 GLR 993;; Municipal Corporation for Greater Bombay & Anr. vs. The Advacne Builders (India) Pvt. Ltd. & Ors., AIR 1972 SC 793;; M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu & Ors., 1999 (6) SCC 464;; Chandravadan Chunilal Shah & Ors. vs. State of Gujarat & Ors., 2002 (3) GLH 76;; N. Nanalal Kiklawala & Anr. vs. State of Gujarat & Ors., AIR 2006 SC 1.

       Decided in Favour of :

       Petitioner

       Special Civil Application No. 1931/05 — Dismissed

       and No. 12749/03 — Allowed