SUPREME COURT OF INDIA
N. Nanalal Kiklawala
Vs
State of Gujarat
Civil Appeal No. 2972 of 2001
(Arijit Pasayat and C.K.Thakker)
07/11/2005
ARIJIT PASAYAT, J.
1. 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').
2. 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 Developments 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.
3. 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.
4. Therefore, the main petition registered as Special Civil Application No.
9468 was filed by Kiklawalas, praying for writ of mandamus for the
implementation and execution of the sanctioned scheme. Two other 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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. 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 cases 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." *
10. 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 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 and 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 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 70A. 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 sanctioned in
accordance with the provisions of this Act." *
11. 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.
12. 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. vs. The
Advance Builders (India) Pvt. Ltd. and others . 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 vs. The Church Wardens
of All Saints, Wigan and others (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." *
13. 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. #
14. The appeal is allowed to the aforesaid extent without any order as to
costs.