Full Judgment Text
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CASE NO.:
Appeal (civil) 2972 of 2001
PETITIONER:
N. Nanalal Kiklawala and Anr.
RESPONDENT:
State of Gujarat and Ors.
DATE OF JUDGMENT: 07/11/2005
BENCH:
Arijit Pasayat & C.K. Thakker
JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Challenge in this appeal is to the legality of the judgment rendered by a
Division Bench of the Gujarat High Court in a Letters Patent Appeal which
was filed by Dahod Nagarpalika (in short ‘Nagarpalika’), the respondent No.
2 in this appeal. In the Letters Patent Appeal challenge was to the
judgment rendered by a learned Single Judge in a writ petition filed by the
present appellant for a direction to implement and execute a scheme
sanctioned under the provisions of the Gujarat Town Planning and Urban
Development Act, 1976 (in short the ‘Act’).
The learned Single Judge had directed to implement the Town Planning Scheme
in question in accordance with the provisions of the Act and the Gujarat
Town Planning and Urban Development Rules, 1979 (in short the ‘Rules’). A
time limit for carrying out the directions was fixed and the last date was
indicated to be 30th June, 1999. The Division Bench allowed the appeal and
set aside the judgment rendered by learned Single Judge.
The factual position in a nutshell is as follows:
Several parties are involved in the dispute. They are Navinchandra Nanalal
Kikawala and another, the tenant Pachubhai Matrubhai Pathak, another tenant
Hasanjibhai K. Bhewala and a trust, known as "Abdulhassain Rasulbhai
Kagawala Trust", and Dahod Nagarpalika. The dispute centered around the
town planning scheme, which was sanctioned on June 2, 1977 and was
published on April 30, 1981. The dispute relates to the original plots of
Kiklawalas and the Kagalwala Trust and the final plots were reconstituted
from the original plots. The land belonging to Kiklawalas was bearing
Revenue Survey No.3/E. Later on, at the time of City Survey Settlement, the
same was numbered as City Survey No.453/E. The above-said land was
admeasuring 2156 sq. mtrs. The Kagalwala Trust had the original plot, which
was registered as Revenue Survey No.2/A and was admeasuring about 2059 sq.
mtrs. According to the scheme, which became final, the original plots, both
of Kiklawalas and Kagalwala Trust came to be reconstituted. Some portion of
the land belonging to the Kagalwala Trust was to be given to Kiklawalas,
and a portion of the land of Kiklawalas was required to be hived off and
was to be utilized for the purposes of garden and open air theatre. By this
process, a reconstituted final plot, bearing No.19, was to be given to
Kiklawalas to admeasure about 1670.25 sq. mtrs. Final Plot No. 20 was to go
to Kagalwala Trust admeasuring 1142 sq. mtrs. The land being given to
Kiklawalas from the Kagalwala Trust had construction and tenant also. In
the same way, some portion of the land, which Kiklawalas would get under
the reconstituted plot, was also having tenants of their own.
Therefore, the main petition registered as Special Civil Application
No.9468 of 1996 was filed by Kiklawalas, praying for a writ of mandamus for
the implementation and execution of the sanctioned scheme. Two other
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petitions, viz., Special Civil Application No.7895 of 1997 and Special
Civil Application No.2462 of 1998 were filed by the tenant and the
Kagalwala Trust. By a common judgment, the three Writ petitions were
disposed of. The main petition was allowed and the Dahod Nagarpalika was
directed to implement the town planning scheme in question. It was held
that this should be done in accordance with the provisions contained in the
Act and the rules framed thereunder. The further directions were that
action was to be taken "at the earliest possible time without any further
loss of time and in no case later than 30th June, 1999". The other two
petitions were dismissed. These orders were challenged before the Division
Bench.
Before the High Court the Nagarpalika took the stand that it had applied
for variation of the schemes. In view of the provisions contained in
Section 71 of the Act, the direction as given by learned Single Judge could
not have been given. Learned Single Judge had observed that mere
possibility of variation in town planning scheme by subsequent scheme does
not authorize the Nagarpalika to avoid implementation of scheme. The High
Court accepted the plea of the Nagarpalika that when proposal for variation
is pending the direction should not have been given. It was observed that
the parties were to act in accordance with the scheme, if any scheme
emerges as a consequence of the variation of the sanctioned scheme.
Opportunity was given to the aggrieved party to question correctness of the
scheme before the appropriate forum.
Learned counsel for the appellant submitted that the State Government has
rejected the prayer for variation of the scheme and though the Division
Bench had considered the effect of variation, the said question has become
academic in view of the subsequent events.
Learned counsel for the Nagarpalika submitted that the State Government’s
refusal to vary the scheme is presently under challenge and is the subject
matter of challenge in Special Civil Application No.9839 of 2001. Learned
counsel for the respondents 3 and 4 who claimed to be functionaries of
Kagalwala Trust submitted that subsequent to the rejection the State
Government has again approved the variation. Reference was made to copy of
a letter No.NRY/322001/1746/L dated 13-5/6/2005 purported to have been
written by one Rupabhai Lakhabhai Charel, Section Officer of the Urban
Development and Urban Housing Department, Sachivalaya, Gandhinagar. Serious
disputes were raised about the authenticity of the letter and the authority
to write such a letter.
What has transpired is really shocking. In the affidavit filed by the
Principal Secretary in the Urban Housing Development, Government of
Gujarat, it has been categorically stated that there is no record about the
issuance of such letter by the Department. In fact, it has been stated that
the Town Planning Scheme No.1, Dahod (II Varied) has not been sanctioned by
the Government and has been rejected by notification dated 9.8.2001 and
there is no subsequent change in the decision. In the affidavit filed by
aforesaid Rupabhai Lakhabhai Charel he has stated that he has issued letter
and the subject of the letter pertained to giving approval to the Dahod
Town Planning Scheme No.1, (II Varied) and the same has been issued from
the Department for the purpose of getting varied proposal of the scheme in
question and for taking further action at the end of the Department.
Learned counsel appearing for the State has placed before us the relevant
file which shows that at one place the aforesaid Rupabhai Lakhabhai Charel
has accepted that it does not appear from the records that such letter was
issued. In view of the specific stand of the State Government, the letter
referred to above is really of no consequence. The authority under which
the letter was issued has not been explained by the aforesaid Rupabhai
Lakhabhai Charel. Learned counsel appearing for the respondents 3 and 4
(functionaries of the Trust) submitted that everything is not clean and
transparent in the concerned department as is evident from the various
correspondences made by various authorities of the concerned department.
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Reference has been made to various documents in this connection. We find
substance in this plea. The views in the various communications made by
various officials are not consistent. This does not speak well of the
concerned department. What is baffling is that after having noticed that
the aforesaid Rupabhai Lakhabhai Charel has written a letter without any
authority to do so, he has been merely transferred to another department.
Learned counsel for the State of Gujarat stated that the police have also
been asked to conduct an inquiry in the matter. Learned counsel appearing
for the State could not explain as to what role the police has to play
after the author of the letter has admitted lack of authority and
authorship of the letter. We are at loss to understand the logic in what
way the State Government has done. What is still more baffling is the soft-
pedalling by the State Government in such a serious matter. Learned counsel
appearing for the State failed to explain as to how the various officers of
the same department could write letters containing diametrically opposite
views. Be that as it may, the definite stand of the State Government as
stated in the affidavit of the Principal Secretary is that the State
Government has rejected the proposal for variation. The correctness of the
decision is being tested in the writ petition. But there is, in fact, no
order of stay. So far as the decision is concerned till the order is set
aside, the consequences which statutorily flow in terms of Section 65 have
to be given effect. The said provision reads as follows:
"Section 65. Power of Government to sanction or refuse to sanction the
scheme and effect of sanction.
(1) On receipt of the preliminary scheme or, as the case may be, the final
scheme, the State Government may -
(a) in the case of a preliminary scheme, within a period of two
months from the date of its receipt, and
(b) in the case of a final scheme, within a period of three months
from the date of its receipt.
by notification, sanction the preliminary scheme or the final scheme or
refuse to give sanction, provided that in sanctioning any such scheme, the
State Government may make such modifications as may, in its opinion, be
necessary for the purpose of correcting an error, irregularity or
informality.
(2) Where the State Government sanctions the preliminary scheme or the
final scheme, it shall state in the notification -
(a) the place at which the scheme shall be kept open for inspection
by the public, and
(b) a date in which all the liabilities created by the scheme shall
come into force:
Provided that the State Government may from time to time such date, by
notification, by such period, not exceeding three months at a time, as it
thinks fit.
(3) On and after the date fixed in such notification, the preliminary
scheme or the final scheme, as the case may be, shall have effect as if it
were enacted in this Act."
Few other provisions i.e. Sections 66 to 71 which have relevance need to be
noted. They read as follows:
Section 66. Withdrawal of scheme:
(1) If at any time before the preliminary scheme is forwarded by the Town
Planning Officer to the State Government, a representation is made to the
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Town Planning Officer by the appropriate authority and a majority of the
owners in the area, that the scheme should be withdrawn, the Town Planning
Officer shall, after inviting from all persons interested in the scheme
objections to such representation, forward such representation together
with the objections, if any, to the State Government.
(2) The State Government, after making such inquiry as it may deem fit,
may, if it is of the opinion that it is necessary or expedient so to do, by
notification, direct that the scheme shall be withdrawn and upon such
withdrawal no further proceedings shall be taken in regard to such scheme.
Section 67. Effect of preliminary scheme.
On the day on which the preliminary scheme comes into force -
(a) all lands required by the appropriate authority shall, unless it is
otherwise determined in such scheme, vest absolutely in the appropriate
authority free from all encumbrances;
(b) all rights in the original plots which have been re-constituted into
final plots shall determine and the final plots shall become subject to the
rights settled by the Town Planning Officer.
Section 68. Power of appropriate authority to evict summarily.
On and after the date on which a preliminary scheme comes into
force, any person continuing to occupy any land which he is not
entitled to occupy under the preliminary scheme shall, in
accordance with the prescribed procedure, be summarily evicted by
the appropriate authority.
Section 69. Power to enforce scheme.
(1) On and after the date on which a preliminary scheme comes into force,
the appropriate authority shall, after giving the prescribed notice and in
accordance with the provisions of the scheme.
(a) remove, pull down, or alter any building or other work in the
area included in the scheme which is such as contravenes the scheme
or in the erection or carrying out of which any provision of the
scheme has been complied with;
(b) execute any work which it is the duty of any person to execute
under the scheme in any case where it appears to the appropriate
authority that delay in the execution of the work would prejudice
the efficient operation of the scheme.
(2) any expenses incurred by the appropriate authority under this section
shall be recovered from the person in default or from the owner of the plot
in the manner provided for the recovery of sums due to the appropriate
authority under the provisions of this Act.
(3) if any question arises as to whether any building or work contravenes a
town planning scheme or whether any provision of a town planning scheme is
not complied with in the erection or carrying out of any such building or
work, it shall be referred to the State Government and the decision of the
State Government shall be final and binding on all persons.
(4) No person shall be entitled to compensation in respect of any damage,
loss or injury resulting from any action taken by the appropriate authority
under the provisions of this section except in respect of the building or
work begun before the date referred to in sub-section (1) and only in so
far as such building or work has proceeded under that date;
Provided that any claim to compensation, which is not barred by
this sub-section shall be subject to the condition of any agreement
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entered into between the claimant and the appropriate authority.
(5) the provisions of this section shall not apply to any operational
construction undertaken by the Central Government or a State Government.
Section 70. Power to vary scheme on ground of error, irregularity or
informality.
(1) If after the preliminary scheme or the final scheme has come into
force, the appropriate authority considers, that the scheme is defective on
account of an error, irregularity or informality, the appropriate authority
may apply in writing to the State Government for the variation of the
scheme.
(2) If on receiving such application or otherwise, the State Government is
satisfied that the variation required is not substantial, the State
Government shall publish a draft on such variation in the prescribed
manner.
(3) The draft variation published under sub-section (2) shall state every
variation proposed to be made in the scheme and if any such variation
relates to a matter specified in any of the clauses (a) to (h)of sub-
section (3) of section 40, the draft variation shall also contain such
other particulars as may be prescribed.
(4) the draft variation shall be open to the inspection of the public at
the head office of the appropriate authority during office hours.
(5) Within one month of the date of publication of the draft variation, any
person affected thereby may communicate in writing his objections to such
variation to the State Government through the Collector and send a copy
thereof to the appropriate authority.
(6) After receiving the objections under sub-section (5), the State
Government may, after consulting the appropriate authority and after making
such inquiry as it may think fit, by notification.
(a) appoint a Town Planning Officer and thereupon the provisions of
this Chapter shall, so far as may be, apply to such draft variation
as if it were a draft scheme sanctioned by the State Government, or
(b) make the variation with or without modification, or
(c) refuse to make the variation.
(7) From the date of the notification making the variation, with or without
modification, such variation shall take effect as if it were incorporated
in the scheme.
Section 70 A. Variation of Town Planning Scheme for land allotted for
public purpose.
If at any time after the final town planning scheme comes into force, the
appropriate authority is of the opinion that the purpose for which any land
is allotted in such scheme under any of the paragraphs (ii) and (iii) of
sub-clause (a) of clause (ii) of sub-section (3) of Section 40 requires to
be changed to any other purpose specified in any of the said paragraphs,
the appropriate authority may make such change after following the
procedure relating to amendment of regulations specified in Section 72 as
is such change were an amendment of regulations.
Section 71. Variation of town planning scheme by another scheme.
Notwithstanding anything contained in section 70, a town planning scheme
may at any time be varied a subsequent scheme made, published and
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sanctioned in accordance with the provisions of this Act.
The provisions relate to different stages and situations. Section 66 deals
with withdrawal of a scheme. Section 70 on which the Division Bench placed
reliance deals with power to vary scheme on ground of error, irregularity
or informality. As noted in sub-section (1), liberty is granted to the
appropriate authority (as defined in Section 2(iii)) to apply in writing to
the State Government for variation of the scheme if according to it the
final scheme which has come into force, is defective on account of an
error, irregularity or informality. Only if variation is made, in terms of
sub-section (7) of Section 70, it takes effect from the date of
notification of the variation as if it were incorporated in the scheme.
Section 71 is also an important provision which provides that
notwithstanding anything contained in Section 70, a town planning scheme
may be varied by a subsequent scheme which is made published and sanctioned
in accordance with provisions of the Act.
At this juncture, it would be proper to refer to take note of the decision
of this Court in The Municipal Corporation for Greater Bombay and Anr. v.
The Advance Builders (India) Pvt. Ltd. and Ors., [1971] 3 SCC 381. The said
case related to almost pari materia provisions in the Bombay Town Planning
Act, 1954. In para 13, it was noted as follows:
"13. It was however, contended by the learned Attorney General that after
all a writ of mandamus is not a writ of course or a writ of right but is,
as a rule, a matter for the discretion of the court. That is undoubtedly
the case. It is pointed out by Lord Hatherley in The Queen v. The Church
Wardens of All Saints, Wigan and Ors. (1875-76) 1 AC 611 that upon a
prerogative writ there may arise many matters of discretion which may
induce the Judges to withhold the grant of it -matters connected with
delay, or possibly with the conduct of the parties; but, as further
pointed out by His Lordship, when the Judges have exercised their
discretion in directing that which is in itself lawful to be done, no
other Court can question that discretion in so directing. In the present
case, the High Court has exercised its discretion in directing the issue
of the writ and this Court, in an appeal by special leave, will not
ordinarily question that discretion."
In the circumstances, we set aside the order of the High Court and direct
that in view of the rejection of the proposal of the Nagarpalika for
variation, the statutory consequences which flow are to be worked out.
This, however, would be subject to the decision, if any, in the writ
petition. We make it clear that we have not expressed any opinion on the
legality or otherwise of the order refusing to accept the prayer for
variation.
The appeal is allowed to the aforesaid extent without any order as to
costs.