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2017 Supreme(Guj) 1756
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE A.Y. KOGJE, JJ.
Shree Zalavad Gujarati Kansara Vidyotejak Sanstha - Appellant
Versus
Town Planning Officer & Ors. - Respondents
LETTERS PATENT APPEAL NO. 2686 of 2010 In SPECIAL CIVIL APPLICATION NO. 3696 of 2008
Decided On : 28-04-2017
Advocate Appeared:
For The Appellant :Mrs. Ketty Mehta, Advocate With Mr. Satyen B. Rawal, Advocate
For The Respondents:Mr. L.B. Dabhi, AGP, Mr. S.P. Majmudar, Advocate, Mr. Vimal A. Purohit, Advocate
Headnote:
Constitution of India -Article 226 -Letters Patent -Clause 15 -Appellant, a duly registered Trust, has preferred this appeal under Clause 15 of the Letters Patent being aggrieved and dissatisfied with the oral order passed in Special Civil Application No.3696 of 2008 passed by learned Single Judge, whereby a writ-petition filed by the petitioner-Trust raising manifold prayers against the Chief Officer of Municipality, Town Planning Authorities and District Collector, came to be rejected. If the prayer clause of the writ-petition is perused, it is mainly with regard to issuance of writ, order or direction to the respondents to allot land in lieu of deficit land to the petitioner-Trust on account of merger of Survey No.1871 in Town Planning Scheme No.1 and further to hand over open plot of land to the petitioner out of the Final Plot No.121 or 122 by duly demarcating boundaries of such plot and, inter alia, it was prayed to direct the respondents to produce relevant information and documents concerning the subject land etc. Before learned Single Judge various facts were stated and in the context of such facts legal issues were raised. According to the petitioner land bearing Survey No.1871 admeasuring 2579 sq.mtrs. (3085 sq.yd.) was purchased by virtue of registered sale deed executed on the same day from erstwhile owner . By Notification Town Planning Scheme came to be introduced and Original Plot No.30/1 and 30/2 came to be given Final Plot No.121 and 122 respectively and above Final Plots were allotted in joint ownership of 12 persons by Town Planning Officer for which no consent was given or obtained as contemplated under the Act. As the order passed by learned Single Judge rejecting all contentions of the petitioner is in narrow compass, we would like to reproduce the said order.By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order and/or direction, directing the respondents to allot land in lieu of deficit-land to the petitioner trust on account of merger of the Survey No.1871 in the Town Planning Scheme No.1 -Held Considering the factual scenario, as above, it cannot be said that there was a breach of provision either under Section 45 (2) and/or Section 52 (1) of the Act 1976 or Rules made thereunder and rejection of writ petition by learned Single Judge, though may have little incorrect recording of facts, however, do not entail any advantage to the appellant since on facts as well as on law, no case is made out by the appellant. That the conclusions drawn by learned Single Judge, as emphasized in earlier paragraph of this judgment, are based on appreciation of documentary record and the same cannot be termed as contrary to law warranting interference in this appeal. The decision in the case of (Supra) relied on by learned counsel for the appellant about maintainability of the writ petition even after Town Planning Scheme is finalized, to which we have no disagreement, and the other decisions to which a reference is made in paragraph 5.5, 5.6 and 5.7 of this judgment have no applicability in the facts of this case. Accordingly, in absence of merit, this Letters Patel Appeal is dismissed.
ANANT S. DAVE, J.
1. The appellant, a duly registered Trust, has preferred this appeal under Clause 15 of the Letters Patent being aggrieved and dissatisfied with the oral order dated 18.8.2010 passed in Special Civil Application No.3696 of 2008 passed by learned Single Judge, whereby a writ-petition filed by the petitioner-Trust raising manifold prayers against the Chief Officer of Vadhvan Municipality, Town Planning Authorities and District Collector, Surendranagar, came to be rejected.
2. If the prayer clause of the writ-petition is perused, it is mainly with regard to issuance of writ, order or direction to the respondents to allot land in lieu of deficit land to the petitioner-Trust on account of merger of Survey No.1871 in Vadhvan Town Planning Scheme No.1 and further to hand over open plot of land to the petitioner out of the Final Plot No.121 or 122 by duly demarcating boundaries of such plot and, inter alia, it was prayed to direct the respondents to produce relevant information and documents concerning the subject land etc.
3. Before learned Single Judge various facts were stated and in the context of such facts legal issues were raised. According to the petitioner on 9.11.1966 land bearing Survey No.1871 admeasuring 2579 sq.mtrs. (3085 sq.yd.) was purchased by virtue of registered sale deed executed on the same day from erstwhile owner Shah Vadilal Rameshchandra. By Notification dated 6.7.1995 Vadhvan Town Planning Scheme came to be introduced and Original Plot No.30/1 and 30/2 came to be given Final Plot No.121 and 122 respectively and above Final Plots were allotted in joint ownership of 12 persons by Town Planning Officer for which no consent was given or obtained as contemplated under the Act. The petitioner being aggrieved by such exercise of powers by Town Planning Officer preferred Municipal Case No.8 of 1994 before the Collector on 16.12.1995 for allotment of land in lieu of merger of land of the petitioner into Town Planning Scheme which came to be rejected by the Collector. According to the petitioner-Trust, as per sale deed, land was admeasuring 2579.93 sq.mtrs. and as per lay out plan of the petitioner-Trust, the entire land with all details and measurements are shown. The total area of the plot is 1823.22 sq.mtrs. and thus deficit of land of 756.21 sq.mtr. is to be allotted to the petitioner by drawing panchnama by metes and bounds. It is further the case of the petitioner that an application was preferred on 9.9.1999 to the Chief Officer in which an order was passed for allotment of land out of Final Plot No.122 in lieu of deficit land admeasuring 625 sq.mtr. on the eastern side of the Final Plot No.125. However, the above order was challenged by aggrieved party in Municipal Case No.14 of 2002 before the District Collector. By order dated 16.8.2004 earlier order came to be quashed and set aside and directions were issued to the Chief Officer to start proceedings under the Town Planning Act afresh. That various representations were made to the Chief Officer of the Municipality and Town Planning Authorities but no decision was taken and even earlier a writ petition being Special Civil Application No.16292 of 2006 was preferred before this Court claiming various reliefs against Chief Officer, Town Planner and Town Planning Committee for handing over possession of deficit land, which came to be disposed of with the directions issued therein.
4. As the order passed by learned Single Judge rejecting all contentions of the petitioner is in narrow compass, we would like to reproduce the said order, which reads as under:-
“1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order and/or direction, directing the respondents to allot land in lieu of deficit-land to the petitioner trust on account of merger of the Survey No.1871 in the Wadhwan Town Planning Scheme No.1.
The petitioner has also prayed for an appropriate writ, order and/or
