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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANDEEP N. BHATT, J.
Harsh Khodidas Korat (Patel) - Appellant
Versus
State Of Gujarat - Respondent
R/Special Civil Application No. 4064, 4067, 4069 of 2021
Decided on : 07-10-2022
GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT, 1976 - SECTION 29(4) - DEEMED APPROVAL - APPLICABILITY - TOWN PLANNING SCHEME - RESTRICTION ON DEVELOPMENT - SECTION 49(1)(A) - APPLICATION FOR DEVELOPMENT PERMISSION - REJECTION - VALIDITY.
Fact of the Case:
The petitioners challenged the communication dated 15.12.2020, 22.01.2021, and 15.12.2020 issued by the respondent authority, contending that the same were without any application of mind and contrary to the provisions of The Gujarat Town Planning & Urban Development Act, 1976 (the Act), whereby permission for approval of development plan was not considered. The petitioners claimed that as per Section 29(4) of the Act, if the application for approval of development plan is not granted within a period of three months, then the applications of respective petitioners are deemed to have been granted.
Finding of the Court:
The Court found that the petitioners' applications for development permission were received by the respondent corporation on 22.06.2020, after the resolution for preparing Draft Town Planning Scheme No.25 (Vavdi) was passed by the Rajkot Municipal Corporation in the general board meeting on 16.06.2020. The Court noted that Section 49(1)(a) of the Act restricts the development of land covered under the Town Planning Scheme right from the date of declaration of intention. The Court also considered the provisions of Rules 6.4, 6.5, and 6.17 of the G.D.C.R., which support the respondent corporation's position.
Issues: 1. Whether the petitioners were entitled to deemed approval of their development plans under Section 29(4) of the Act, despite the declaration of intention to prepare a Town Planning Scheme under Section 41(1) of the Act? 2. Whether the respondent corporation's rejection of the petitioners' applications for development permission was valid in light of the restrictions imposed by Section 49(1)(a) of the Act?
Ratio Decidendi: The Court held that the petitioners were not entitled to deemed approval of their development plans under Section 29(4) of the Act because the declaration of intention to prepare a Town Planning Scheme under Section 41(1) of the Act restricted the development of land covered under the scheme from the date of declaration. The Court further held that the respondent corporation's rejection of the petitioners' applications for development permission was valid in light of the restrictions imposed by Section 49(1)(a) of the Act.
Final Decision: The Court dismissed the petitions, holding that the impugned decisions of the respondent corporation were not arbitrary or against the provisions of the law and that there was no reason to interfere with the same under Article 226 of the Constitution of India.
JUDGMENT :
1.1 The present petitioners by way of present petitions under Article 226 of the Constitution of India have challenged the communication dated 15.12.2020 in Special Civil Application No.4064 of 2021, communication dated 22.01.2021 in Special Civil Application No.4067 of 2021 and communication dated 15.12.2020 in Special Civil Application No.4069 of 2021, by the respondent authority.
1.2 In all aforesaid petitions, the date of application is same as 12.06.2020 and since the subject matter of the present petitions and learned advocates appearing for the respective parties are same as well as the reliefs prayed by the respective petitioners are found identical, and therefore, the present petitions are heard together.
1.3 By way of the present petitions, the respective petitioners have challenged the impugned communication of respondent No.4, which as per submissions of petitioners are without any application of mind and contrary to the provisions of The Gujarat Town Planning & Urban Development Act, 1976 (for short “the Act”), whereby permission for approval of development plan is not considered. As per the say of the learned advocate for the respective petitioners, the provisions of Section 29(4) of the Act provides that if the application for approval of development plan is not granted within a period of three months then the applications of respective petitioners are deemed to have been granted, therefore, the present petitions are preferred.
2.1 The brief facts giving rise to the present petition being Special Civil Application No.4064 of 2021 are as follows:
2.1.1 Originally land bearing Survey No.105/1 of Village Vavdi admeasuring 36 acres and 37 Gunthas belongs to Patel Dharamshi Thakarshi Korat (great grandfather of petitioner and grandfather of petitioner‘s father) with other lands prior to 1947. Further, apart from Survey No.105/1, Patel Dharamshi Thakarshi Korat also owned various other agricultural lands at village Vavdi. Further, by virtue of promulgation, the name of Patel Dharamshi Thakarshi Korat was mutated in the revenue record vide Entry No.14 dated 30.10.1955 and Entry No.130 dated 11.5.1964 for Survey No.105/1 of Village Vavdi admeasuring 36 acres and 37 Gunthas. Further, Patel Dharamshi Thakarshi Korat had partitioned the said land bearing Survey No.105/1 admeasuring 36 acres and 37 Gunthas and 18 acres and 19 gunthas was given to his daughter-in-law - the grandmother of petitioner and remaining 18 acres and 18 Gunthas was given to his grandson Khodidas Shivlal (father of petitioner herein) and their names were mutated by Entry No.710. Thereafter, Labhuben Khodidas Korat (Patel) by family arrangement gave land admeasuring 9 acres and 10 Gunthas (37434 sq. mtrs.) to her grandson - Harsh Khodidas Korat, the petitioner herein and his name was mutated in the revenue record vide Entry No.2156 dated 26.2.2002 and for remaining land viz. 9 acres and 9 gunthas (37332 sq. mtrs.), Labhuben Khodidas Korat (Patel) by family arrangement got entered the name of her son Khodidas Shivlal Korat vide Entry No.5980 dated 25.3.2011 and thereafter Labhuben Khodidas Korat (Patel) by family arrangement got entered the names of her 4 daughters, which was mutated in the revenue record vide Entry No.8662 dated 16.12.2015.
2.1.2 Further, Khodidas Shivlal Korat who had got land bearing Survey No.105/1 Paiki admeasuring 18 acres and 18 Gunthas by family partition, gave land admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) to his wife Chetnaben Khodidas and it was mutated in the revenue record vide Entry No.2157 dated 26.2.2002. Thereafter, Khodidas Shivlal, in his lifetime entered the name of his wife Chetnaben Khodidas in the remaining land admeasuring 9 acres and 9 Gunthas (37332 sq. mtrs.) and it was also mutated in the revenue record vide Entry No.5737 dated 25.10.2010. Further, Chetnaben Khodidas got N.A. permission for her land admeasuring Survey No.105/1 Paiki admeasuring 9 acres and 9 gunthas (37332 sq. mtrs.) Further, t
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The court emphasized that the petitioner should approach the appropriate authority if an adverse order is passed by the Government, as the matter is pending with the Government.
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