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2016 Supreme(Guj) 478
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Anant S. Dave & R.P. Dholaria, JJ.
Cosmos Development Corporation – Appellant
Vs.
State of Gujarat and Others – Respondents
Letters Patent Appeal No. 87 of 2011 & Special Civil Application No. 12524 of 2010
Decided On : 16-03-2016
For the Appellant :Percy Kavina, Senior Advocate and Vimal M. Patel, Advocate.
For the Respondent: Vacha Desai, A.G.P.
The main legal point established in the judgment is that a petitioner, holding only an agreement to sale with pending civil disputes, has no legal right to seek variation under the Gujarat Town Planning and Urban Development Act, 1976.
Headnote:
Town Planning Scheme - Rejection of Representation - Gujarat Town Planning and Urban Development Act, 1976 - Sections 40, 44, 45, 46, 47, 65, 70, 71
Fact of the Case:
The petitioner sought to vary the Town Planning Scheme No. 54 by dropping reservation for Economically Weaker Section (EWS) in respect of a land. The representation was rejected by the authority, leading to a challenge before the court.
Finding of the Court:
The court found that the petitioner, holding an agreement to sale, had no legal right to seek variation under the Act. The authority followed the procedure at every stage and no error, irregularity, or informality existed. The appeal was dismissed.
Issues: The main issue was whether the petitioner had the legal right to seek variation under the Act, and whether the authority had followed the procedure in accordance with the provisions of the Act.
Ratio Decidendi: The court held that the petitioner, holding only an agreement to sale with pending civil disputes, had no locus or right to seek variation under the Act. The authority had followed the procedure in accordance with the provisions of the Act at every stage.
Final Decision: The appeal was dismissed with no cost, and the request to extend the status quo was rejected.
Anant S. Dave, J.
1. This Letters Patent Appeal under Clause 15 arises out of the oral order dated 28th October, 2010 passed in Special Civil Application No. 12524 of 2010 by the learned Single Judge, whereby the prayer of the petitioner herein to issue a writ of mandamus or any other appropriate writ or order or direction to set aside the order dated 29.5.2010 passed by the respondent No. 2 upon his representation dated 21.12.2000 came to be rejected. The above representation was made by the petitioner to vary the Town Planning Scheme No. 54 (Isanpur South Extension) by dropping/removing reservation for Economically Weaker Section (EWS) in respect of Original Survey No. 609 situated at Village Isanpur, Taluka: Ahmedabad.
2. Certain facts recorded by learned Single Judge in para 2 of the judgment about executing an agreement to sale on 17.5.1980 by deceased-Mir Saheb Amirmiya Saiyed and supplementary agreement dated 8.2.1990 by legal heirs in favour of the petitioner for the land bearing Survey No. 609 of Village Isanpur, Taluka/City Ahmedabad, admeasuring 14 Acres and 32 Gunthas, approximately 59899 sq. mtrs., leaving behind legal heirs are not in dispute. Even Civil Suits filed by the legal heirs and the parties inter-se before the Civil court having jurisdiction are also not in arena of any dispute.
3. So far as the grievance raised by the petitioner has genesis in the order dated 17.7.2009 passed in Special Civil Application No. 7248 of 2009, enabling the petitioner to move the authority in terms of requirement of provisions of Section 70 and 71 of the Gujarat Town Planning and Urban Development Act, 1976 (Town Planning Act for short). The petition came to be disposed of as withdrawn.
4. On 25.8.2009, the petitioner made a detailed representation with regard to variation of Town Planning Scheme No. 54 (Isanpur south Extension) under Section 70 of the Town Planning Act, in respect of land bearing Survey No. 609 situated at Village Isanpur, Taluka Ahmedabad, admeasuring 14 Acres and 32 Gunthas, approximately 59899 sq. mtrs. on the basis of grounds set out in the representation and further written submissions filed on 21.12.2009, whereby grounds for variation stated in representation came to be filed with certain additional grounds including powers and duty conferred upon the authorities under the Act, namely, Sections 46, 47, 65., the consequences following thereupon and Sections 70 and 71 of the Town Planning Act.
5. Above representation came to be rejected as per the order dispatched on 29.5.2010 by concerned Authority, wherein it is stated that the Town Planning Scheme No. 54 of the subject representation is sanctioned as a preliminary scheme by the State Government on 19.12.2003 and thus, Revenue Survey No. 609 has no significance with regard to ownership of Revenue Survey No. 609 Civil Suits were pending before the Civil Court and pursuant to Town Planning Scheme, question of ownerships of the land is not decided. The representation made by the petitioner with regard to any error, irregularity or illegality in the TP scheme is, therefore, not accepted.
5.1. It is also stated that thus, so far as the final plot No. 34 of the Town Planning Scheme is concerned, it was vested before the competent authority for the purpose of housing for economical weaker Section and no necessity to follow any provision under the Land Acquisition Act.
6. The above rejection was subject matter of challenge before the learned Single Judge, who after adverting to factual aspects in para Nos. 3, 4 and 5, has observed:
"From the above narration of facts, I am of the view that the present petitioner is claiming right as one of the purchasers for which there are several settlements and for which several litigations are pending. The authority has acted on the basis of the revenue record and has passed an appropriate order. Counsel for the respondent has rightly pointed out that the petitioner is not in possession of the land in question nor any e
