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Gordhanbhai Kahandas Dalwadi Vs. the Anand Municipality, Anand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 653 of 1970
Judge
Reported inAIR1976Guj33; (1975)GLR558
ActsBombay Town Planning Act, 1954 - Sections 18(2) and 32 (1); Constitution of India - Article 226
AppellantGordhanbhai Kahandas Dalwadi
RespondentThe Anand Municipality, Anand and ors.
Appellant Advocate V.B. Patel, Adv.
Respondent Advocate I.C. Bhatt and; C.T. Daru Advs.,; A.A. Patel, Asstt.
Excerpt:
civil - town planning - sections 18 (2) and 32 (1) of bombay town planning act, 1954 and article 226 of constitution of india - petitioner praying town planning scheme to be quashed as it interferes with his constructions - statute provides no person shall carry any development work in any building or in any land within limits of disputed area without permission of local authority - procedure followed by authority as required under rules - petitioner cannot be granted any relief - petition dismissed. - - 5. the grievance made by the petitioner regarding failure on the part of the town, planning officer in the final scheme to award him compensation for the loss of right of way over the 12 feet strip of land which was running towards the east is also without substance. the petitioner..........no. 1 of anand town should be quashed or revoked and the petitioner has also prayed that the final town planning scheme no.1 of anand municipality should be quashed and set aside in so far as it concerns final plot no. 127/1 and the concession granted in respect of final plot no. 127/1 and the extinguishments of the right of way purchased by the petitioner for value under a sale deed, should be done away with and the town planning officer should be directed to award compensation to the petitioner for the loss of that right of way. the petitioner has further prayed that the decision given by the town planning officer, which annexure 'd' to the petition, in so far as it pertains to the land of the petitioner, should be quashed and set aside.2. the petitioner is at present the owner of a.....
Judgment:

Divan, C.J.

1. The petitioner herein has prayed that the permission granted by the Anand Municipality to respondents Nos. 4 to 12 to put up a Planning Scheme No. 1 of Anand town should be quashed or revoked and the petitioner has also prayed that the final town Planning scheme No.1 of Anand Municipality should be quashed and set aside in so far as it concerns Final Plot No. 127/1 and the concession granted in respect of Final Plot No. 127/1 and the extinguishments of the right of way purchased by the petitioner for value under a sale deed, should be done away with and the town Planning Officer should be directed to award compensation to the petitioner for the loss of that right of way. The petitioner has further prayed that the decision given by the Town Planning Officer, which Annexure 'D' to the petition, in so far as it pertains to the land of the petitioner, should be quashed and set aside.

2. The Petitioner is at present the owner of a Plot of land, which bears Final Plot No. 126/1 in, Town Planning Scheme No. 1 of Anand Municipality. This plot admeasures 489 square yards and the Plot was purchased by the petitioner on January 19, 1962, for a sum of Rs. 16,342/-. On this land the Petitioner has put up a residential bungalow but the construction was complete before the Municipality declared its intention regarding the Town Planning Scheme in question. On June 12, 1964, the Municipality passed a resolution declaring its intention for preparing a Town Planning Scheme covering the area in which this land of the petitioner and the bungalow thereon are situated. On January 7. 1966, a draft Scheme was prepared and published by the Municipal Authorities. The draft scheme was sanctioned by the Government on September 1:9, 1966, and as a consequential measure, the Town Planning Officer was appointed in connection with this scheme on September 30, 1966. On February 28, 1969, the Town Planning Officer gave his decisions under the Bombay Town Planning Act, 1954, (hereinafter referred to as 'the Act') regarding the reconstituted plot. Petitioner's Plot Number 126/1 is immediately to the East of Final Plot No. 127/1 which belongs to respondents Nos. 4 to 12 herein. It may be mentioned that Final Plot No. 127/1 admeasuring 187.03 square meters is a part of the final Plot No. 127. As a result of the Town Planning Scheme as finally published, a Town Planning Scheme road 30 feet wide and running roughly North-South is laid out through Final Plot No. 127. At the stage of the draft scheme, it was proposed that the land which has now gone to form Final Plot No. 127/1 should be allocated to Final Plot No. 126/1 as reconstituted. However at the time of the finalisation of the Scheme by the Town Planning Officer, this type of reconstitution was not done and the land of Final Plot No. 12611 remained as it was and Final Plot No. 127/1 remained with the original owners of Final Plot No,127, namely, respondents Nos. 4 to 12. The petitioner says that in order to have access for his Final Plot No, 126/1, he had purchased a permanent right of way over 12 feet strip of land touching the Southern boundary of the petitioner's plot and this right of way was to the East of Final Plot No. 126/1. Under the Final Town Planning Scheme as published by the Government no compensation is being awarded to the petitioner for the loss of this right of way. However, a 12 feet wide road running towards West and from the Southern boundary of the Plot of the petitioner has been provided and the petitioner has access to the newly laid 30 feet wide Town Planning Scheme road along this 12 feet wide road. The petitioner further states that respondents Nos. 4 to 12 have been granted Permission by the Municipal Authorities of Anand Municipality to build on Final Plot No. 127/1 without leaving any margins and the permission has been granted to Put up a residential house and the commencement certificate as shown by Annexure 'G' to the petition has been issued by the Chairman of the Town Planning Committee of Anand Municipality. According to the petitioner the concession which has been granted to respondents Nos. 4 to 12 regarding this plot of Final Plot No. 127/1 is in contravention of the regulations which were issued by the Anand Municipality when the development Plan of Anand Town was prepared. It is the contention of the petitioner that the Town Planning Scheme as finalised by the Town Planning Officer and as accepted by the Government and finally published was not framed in accordance with the regulations which formed Dart of the development Plan and did not conform to those regulations. Under the regulations the minimum size of a building unit was required to be 500 square metres so far as a domestic building was concerned and that was the minimum area of building unit for a domestic building and it was obligatory upon the Town Planning Officer so to Prepare the Town Planning Scheme that no building unit for a domestic building was less than 500 square metres. Moreover. at the time of granting permission to put up residential building on Final Plot No. 127/1, it was obligatory on the Municipal Authorities to see that the margins prescribed by these Regulations which formed part of the development Plan should had been observed. Yet the permission was granted by the Municipal Authorities permitting respondents Nos. 4 to 12 to put up a building over 100 Per cent of the area of Final Plot No. 127/1 and that is why the Petitioner has challenged that permission granted by the Municipal Authorities. These are the contentions of the petitioner.

3.In order to appreciate the contentions raised by Mr. Patel on behalf of the petitioner herein, it will be necessary to refer to some of the provisions of the Act. Chapter II of the Act deals with Development Plan and under Section 3 sub-section (1) of the Act, as soon as may be after the coming into force of the Act, subject however to the provisions of the Act, every local authority shall carry out a survey of the area within its jurisdiction and shall, not later than four years from the date on which the Act comes into force. Prepare and publish in the prescribed manner a development plan and submit it to the State Government for sanction. It may be pointed out that the State Government has the power to extend the time limit of four years laid down in Section 3 (1) for the preparation of the development plan. The development Plan for Anand Town was prepared and finalised on May 18, 1967 and Regulations called the Anand Town Development Regulations, 1966, formed Dart of that development plan. Under Section 7 a development plan shall generally indicate the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated. In particular the development Plan has to contain Proposals designating the use of the land for Purposes such as residential industrial commercial and agricultural. Under Section 8 the particulars which are required to be Published Land submitted to the State Government along with development plan are mentioned and under clause (iii) of Section 8 regulations enforcing the provisions of the development Plan and explaining the manner in which necessary Permission for developing any land can be obtained from the local authority have to be submitted to the State Government along with the plan. Under Section 10 of the Act, on receipt of the development plan under Section 8, the State Government may, after consulting the Consulting Surveyor and within the Prescribed period sanction the development Plan and the regulations as so received unless any modifications therein are considered to be necessary by the State Government. Under clause (d) of Section Gazette and the development Plan together with the regulations so sanctioned is to be called the 'final development plan'. As Pointed out above, the final development Plan was sanctioned by the State Government on May 18, 1967 and it came into force with effect from July 1, 1967. Section 10-A provides for variation of the development plan and if the State Government is of opinion either on a proposal from the local authority in that behalf or otherwise that it is necessary in the public interest to make any variation in the final development plan whether sanctioned before or after the commencement of the Bombay Town Planning (Gujarat Amendment) Act. 1965, it shall publish in the Official Gazette the variations Proposed in the development plan and the amendments, if any, in the regulations. It may be pointed out that so far as the main challenge of the petitioner is concerned it is on the ground of the regulations framed as part of the final development plan, for Anand. Under Section 12 of the Act restrictions have been set out on development work after publication of the declaration of intention of the local authority for the formulation of a development plan for the area within the Jurisdiction of that local authority and under Section 12 on or after the date on which a declaration of intention to prepare a development Plan is published under subsection (1) of Section 4 in respect of any area, no person shall carry on any development work in any building or in or ever any land within the limits of the said area without the permission of the local authority which shall be contained in a commencement certificate granted by the local authority in the form Prescribed and Annexure 'G' which has been challenged in this Particular case is the commencement certificate granted by Anand Municipality an January 20 1970, to the respondents Nos, 4 to 12.

4. Chapter IV of the Act deals with the declaration of intention to make a Scheme and making of a draft Scheme, whereas Chapter III deals with the making of Town Planning Scheme. Under this Act first the local authority has to make a declaration of intention to make a Town Planning, Scheme in respect of the whole or any part of the land over which it has jurisdiction and Section 18 lays down as to what the contents of a Town Planning Scheme should be. Under Section 18 clause (i) Provision has to be made in the Town Planning Scheme for the imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of a building area for a plot the number size, height and character of buildings allowed in specified areas, the Purposes to which buildings or specified areas may or may not be appropriated the sub-division of plots, the discontinuance objectionable users of land in any area in reasonable Periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs. We may mention that under clause (k) of Section 18 (1) the suspension, so far as may be necessary for the proper carrying out of the scheme, of any rule bye-law regulation notification or order made or issued under any Act of the State Legislature or any of the Acts which the State Legislature is competent to amend can also be included in the Town Planning Scheme when provisions are made therefore Section 25 which is to be found in Chapter IV provides for the contents of a draft scheme, Under clause (c) the draft scheme has to contain the particulars regarding the, extent to which it is proposed to alter the boundaries of original Plots. Under clause (1) the laying out or re-laying out of land either vacant or already built upon has also to be provided in the draft scheme. Clause (e) of Section 25 requires that a draft scheme shall contain a full description of all details of the scheme under such sub-clauses of clause (2) of Section 18 as may be applicable. Under Section 32 duties of the Town Planning Officer have been provided. Under Section 32 (1) in accordance with the procedure prescribed the Town Planning Officer shall, after notice given by him in the prescribed manner define and demarcate the areas allotted to or reserved, for a public purpose of the local authority and the reconstituted plots. Under clause (xiv) he has to draw in the prescribed form the final scheme in accordance with the draft scheme provided that he may make variation from the draft scheme and the Town Planning Officer can make no substantial variation without the consent of the local authority and without hearing any objections which may be raised by the owners concerned. It may be pointed out that in the draft scheme there was a proposal to reconstitute Final Plot No. 126/1 belonging to the petitioner in such a manner as to include 187 square metres or so of Final Plot No. 127/1 as Part of Final Plot No. 126/1. However in the final scheme a variation was made from the draft scheme under the powers conferred upon the Town Planning Officer under Section 32 (1) clause (xiv) provision. It may be pointed out that inasmuch as the owner of the land namely, the owner of Final Plot No. 127/1 (respondents Nos. 4 to 12 herein) was not going to be affected by the variation from the draft scheme, it was not necessary to hear them and so far as the petitioner, the owner of Final Plot No. 126/1 was concerned, he was not the owner of Final Plot No. 127/1 and it was therefore not necessary to hear him. Therefore the contention urged on behalf of the Petitioner about the reconstitution of Final Plot No. 12711 as indicated in the final draft scheme and allowing that plot to remain with respondents Nos. 4 to 12 cannot be successfully challenged by the petitioner.

5. The grievance made by the petitioner regarding failure on the part of the Town, Planning Officer in the final scheme to award him compensation for the loss of right of way over the 12 feet strip of land which was running towards the East is also without substance. Annexure 'A' to the petition is a copy of the notice which was served on the petitioner individually and the final Paragraph of the notice is in these terms:-

'If you have any objection or proposals to make in respect of any of the values increment, contribution or compensation shown in this form or in any other plot in which you are interested within the area of the scheme, you in person or your duly authorized representative should appear before me (at the place specified below) with the requisite documents or certified copies thereof with extract from the Property Register Card or Record, of Rights on 29th September, 1967, at 2.30 and be pre-pared to give proof in support of your objection or Proposals.'

The contents of Annexure 'A' show that there was no proposal to award any compensation to the Petitioner in respect of the loss of right of way about which a grievance is being made in the Petition. Yet the Petitioner does not seem to have raised any objection that no compensation was provided for deprivation of his right of way for which he had -paid an amount of Rs.777/- to the owner of the land over which the right of way was running. Under these circumstances, since no objection was raised regarding the amount of compensation payable to him or regarding the amount of contribution which the Petitioner was required to pay. he cannot make any grievance so far as the present petition is concerned on the ground that the final scheme did not provide any compensation to him for the loss of his right of way for which at one stage he had paid an amount of Rs. 777/-.

6. The main contention which has been urged by Mr. Patel on behalf of the petitioner herein is regarding the alleged breach of regulations which formed part of the final development Plan. A copy of the relevant extracts of the regulations is to be found at Annexure 'F'. The simple answer to this contention of Mr. Patel is that under Section 18 (2) (k) the scheme can provide for the suspension, so for as may be necessary for the proper carrying out of the scheme of any rule, bye-law regulation, notification or order made or issued under any Act of the State Legislature or any of the Acts which the State Legislature is competent to amend. Hence the regulations made as a Part of the final development Plan which was made under the said Act can be suspended in so far as may be necessary for proper carrying out of the scheme and as between the regulations contained in the final development plan and the provisions of a scheme which are contrary to those regulations, the scheme is to Prevail over the regulations of the final development plan. It has been pointed out by the Chief Officer of Anand Municipality in his affidavit in reply that as a part of the Town Planning Scheme, which was finally sanctioned by the State Government regulations. Annexure 'A' to the Final Town Planning Scheme, were Published and those regulations and the scheme were sanctioned by the State Government and so far as Final Plot No. 127/1 was concerned, Provision was made in those Regulations that no margin should be imposed on that final plot and the minimum area of a building unit should not be required in connection with that final plot. Thus, in view of Section 18 (2) (k) the regulations contained in the final development plan must yield to the contents of the final scheme as Published by the State Government and hence it cannot be urged that the commencement certificate granted by the Anand Municipality to respondents Nos. 4 to 12 was in any way illegal or void or in contravention of the regulations which formed part of the final development plan. The petitioner cannot complain about the final scheme in so far as his own Final Plot No. 126/1 was not reconstituted so as to include land of Final Plot No. 127/1. He also cannot complain about the reconstitution of Final Plot No. 127/1 in such a manner as to allow it to remain with the original owners respondents Nos. 4 to 12. He further cannot complain about any violation of regulations or any departure from the regulations contained in the final development Plan so far as the contents of the final development scheme are concerned. Under these circumstances, all the main challenges set out in the petition to the final Town Planning Scheme No. 1 so far as it concerns Final Plot No. 127/1 must fail.

7. By an order passed on Civil Application No. 2712 of 1970 in this Special Civil Application, being order dated November 3. 1970, on respondents Nos. 4 to 12 undertaking to the Court that they would not claim any equities arising by reason of their being Permitted to construction Final Plot No. 127/1 pending the hearing and final disposal of this Petition and that the construction made by them would be subject to any orders which may be made in the Petition and would abide by the result of the petition interim injunction which was earlier granted against them was modified to the extent that they were free to make building construction on Final Plot No. 127/1 provided they left a margin of 10 feet along the border between their Plot No. 127/1 and the petitioner's Plot No. 126/1. This order was to be with out prejudice to the rights and contentions of the parties in this petition. It may be pointed out that the Plans which were originally submitted by respondents Nos. 4 to 12 for putting up the building on Final Plot No. 127/1 related to the entire area of Final Plot No. 127/1 since under the regulations of the Town Planning Scheme, they were entitled to put up a structure covering the entire area of Final Plot No. 127/1. It may further be pointed out that the permission of the commencement certificate which was granted, a copy of which is Annexure 'G' to the petition, was in respect of a residential house and the commencement certificate was granted to build according to the plans submitted. However, in view of the condition laid down by this Court at the time of passing the order dated November 3, 1970 on Civil Application No. 2712 of 1970, respondents Nos. 4 to 12 were required to leave a margin of 10 feet between the structure put up by them and the western boundary of Final Plot No. 126/1 belonging to the petitioner. It is but natural therefore, that considerable modifications were required to be made in the structure as actually Put up by respondents Nos. 4 to 12 as compared with the plan for residential house as originally submitted by them to the Municipality. On February 8. 1971, an application was made to the Anand Municipality on behalf of respondents Nos. 4 to 12 that the Municipal Authorities should issue a no-objection certificate since the modification on the original plan was required in view of the condition imposed by the High Court. On February 12, 1971 such a no-objection certificate was resolved upon and actually the no-objection certificate was issued on February 15, 1971. Since the modification or the departure from the Plan as originally submitted has been necessitated by a condition imposed by this Court at the instance of the Petitioner, and that too during the Pendency of this Special Civil Application, it is not open to the petitioner to complain or make a grievance about the departure from the original plan and hence the prayer in the petition which was introduced by way of an amendment carried out in 1973 that respondents Nos. 4 to 12 should be directed to remove the structures which they had illegally constructed on the said final plot or to direct the first respondent Municipality to take steps for the removal of the said structures cannot be granted. It has been Pointed out in the Petition that respondents Nos. 4 to 12 had constructed shops in Final Plot No. 127/1 and though the Plan submitted by them was for residential tenements, shops have been constructed leaving a margin of 10 feet along the border between the said plot and the plot of the petitioner and a margin of ten feet to the South of their plot but they had constructed a stair-case to the South. It was contended in the amended petition that the construction of stair-case and building of shops was illegal. Since these structures have been put up by respondents Nos. 4 to 12 only during the pendency of this petition and if the petition fails it would be open to them to put up the building in accordance with the original submitted by them to the Municipal Authorities no grievance of the petitioner on this score can be entertained.

8. These were the only challenges urged on behalf of the petitioner. Each of these challenges fails. This Special Civil Application, therefore, fails and is dismissed with costs, Rule discharged.

9. Application dismissed.


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