Point of Law: Legal contention raised about applicability of Article 243ZD etc. has no application to the facts of the present case as the same applies only if the Scheme in question is framed by the concerned Municipality

JUDGMENT :

VINEET KOTHARI, J.

1. Present Intra Court Appeal is directed against the order dated 21.9.2016 of the learned Single Judge dismissing Special Civil Application No.9370 of 2001 – Manubhai Raichandbhai Shah vs. Nadiad Municipal Corporation and others. The grievance of the Petitioner / Appellant is that the Town Planning Scheme finalised by the Respondent State Government on 19.5.1999 has not been varied as per the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (the Act) even though the Appellant had not only applied for the same but objected to the Draft Preliminary Scheme and therefore, the construction as raised of three Bungalows by the Appellant, who appear to be belonging to the same family, deserved to be protected and one of their vacant lands marked as Plot No.185/3 as per the Map produced by the Appellant cannot be given away for public purpose by Respondent Nadiad Municipal Corporation to another person one Jitendrabhai whose plot in the adjacent area over Plot No.318 (Shopping Centre) was being taken over for the public purpose by Nadiad Municipal Corporation in the Town Planning Scheme as finalised by the State.

2. The case seems to have little chequered history in the sense that on the land in question in Nadiad, the Appellants appear to have raised construction of three Bungalows even without the Plans duly approved by the Respondent Nadiad Municipal Corporation, even though the case set up by the Appellant is that they had applied with the Plans to the Respondent Corporation but they did not approve the same in time and though they gave some instructions to the Appellants for modifying their Plan, which the Appellant did, under the provisions of the Act for deemed approval of the maps, they proceeded to construct their three Bungalows on the said land in question leaving portion marked as Plot No.185/3 as vacant.

3. The dispute from the side of the Respondent Nadiad Municipal Corporation and State appears to be two fold viz. (i) public road in one of the Bungalows of the Appellants is required to be widened to the width of 6 mtrs. instead of present 3 mtrs. and according to the Respondent, the Appellants have encroached and constructed their boundary wall and the size of the final plot allotted to them under the Town Planning Scheme notified in 1995 there was only 3 mtrs. of road in front of their three Bungalows; and (ii) Unless, the common plot No.185/3 is handed over by the Appellants in terms of the Final Town Planning Scheme, the said Plot No.185/3 cannot be allotted to the third party Jitendrabhai, whose plot adjacent to Shopping Centre (Plot No.318) is taken from said Jitendrabhai and thus, the development of the said area to this extent is stuck in this litigation.

4. Mr. Mehul Sharad Shah, learned counsel for the Respondent Nadiad Municipal Corporation pointed out that the Respondent Corporation had to file a civil suit against the present Appellants in 1985 viz. Civil Suit No.117 of 1985 – Nadiad Municipal Corporation vs. Manubhai Raichand Shah which was decreed in its favour and even First Appeal filed by the present Appellants was dismissed by the First Appellate Court, against which a Second Appeal filed by Appellants being Second Appeal No.214 of 2013 is pending in this Court. Mr.Mehul Sharad Shah, learned counsel also pointed out that not only the Appellant raised the construction encroaching the land which vested in the State Government as per the provisions of the Act but taking shelter of the present litigation, the Town Planning Scheme notified by the State, which becomes part of the enactment itself, has been stalled by the Appellants. He submitted that objections with regard to the noncompliance with the Article 243ZD etc. of the Constitution of India are not even applicable to the facts of the present case as the Town Planning Scheme in question has been notified by the State Government after the following due procedure prescribed under the Act and therefore, th