Mayurbhai Chandrakantbhai Brahmbhatt v. State of Gujarat
2015-11-04
JAYANT PATEL, N.V.ANJARIA
body2015
DigiLaw.ai
JUDGMENT : N.V. Anjaria, J. The petitioner, by profession an advocate, claiming to be a public spirited person, has invoked the public interest jurisdiction of this court by filing present petition under Article 226 of the Constitution. The grievance raised is that respondent No. 2-Kalol Municipality granted development permission to respondent No. 5 without giving effect to the requirement of 20% deduction from the total land area for public amenities as required under the General Development Control Regulations. The petitioner seeks to assert that the petition is filed in larger interest of the residents of the town of Kalol, who, says the petitioner, are deprived of the said benefit of 20% land for public purpose. 2. On the above premises and in the said context, the prayer is made for issuance of appropriate writ or direction to set aside the decision of Kalol Nagarpalika in not deducting 20% land, that is, admeasuring around 17,022.60 Sq. Meters out of total 85113 Sq. Meters land from Final Plot No. 243 paiki, Town Planning Scheme No. 1 at Kalol from the developer under the GDCR and further to declare that the same is violative of Article 14 of the Constitution. The petitioner has further prayed to direct respondent Nagarpalika to take possession of 20% land out of the total area of land in the final plot in question. 3. The facts are that respondent No. 5 herein purchased the land admeasuring 85,113 Sq. Meters, bearing Final Plot No. 243, Town Planning Scheme No. 1, Kalol, on which previously, Navjivan Mill, Kalol was situated. The said textile mills went into liquidation, its properties was auctioned and the auction sale in favour of respondent No.5 came to be confirmed by order of this court in Official Liquidator Report No. 18 of 2003. The official liquidator by letter dated 19th August, 2004 intimated that he had no objection if respondent No. 5 – M/s. Deep Estate and Developers Private Limited develops the land. It appears that respondent No. 5 submitted development/construction plan to Kalol Municipality, which was the competent authority for Kalol Town Planning Scheme No. 1. Respondent No. 2 granted the development permission on 12th July, 2004 under the GDCRs. 3.1 The General Development Control Regulations (GDCRs) of the revised draft development plan of AUDA, inter alia provided in its clause 10.10.1 for contribution of land for public purpose.
Respondent No. 2 granted the development permission on 12th July, 2004 under the GDCRs. 3.1 The General Development Control Regulations (GDCRs) of the revised draft development plan of AUDA, inter alia provided in its clause 10.10.1 for contribution of land for public purpose. Clause 10.10.1 deals with closed textile mills to provide that "In case of development/redevelopment of land of closed mills for any permissible purpose other than use of textile mills, the competent authority shall enforce owners/applicant to contribute land to the competent authority at the rate of 20% in aggregate of its plot/building unit (Final Plot) by reconstitution of such plot/building unit, so as to provide land for public amenities/public purpose in that area. The land so obtained shall not be used other than public purpose and public amenities.” Clause 2.5 defines 'amenities' and it "Means road, streets, open spaces, parks, recreational grounds, play grounds, gardens, water supply, electric supply, street lighting, drainage, sewerage, public works and other utilities, communication networks, surface and convenience”. 3.2 As per the above Clause in GDCRs, the provision in respect of the development or redevelopment of closed mills is that while so utilising the land of the closed mill, 20% in aggregate of the total area would have to be provided for public purpose in that area. The competent authority to enforce the provision of GDCR is respondent No. 2 Municipality, which gave development permission on 12th July, 2004 to respondent No. 5. 3.3 The case of the petitioner is that while granting the said development permission, requirement of 20% deduction contemplated in Clause 10.10.1 was not properly observed and complied with; instead of deducting 20% of the area and earmarking the same for public purpose, respondent No. 2 counted the area of internal roads constructed by the developer in the said 20% land which was not the due compliance of Clause 10.10.1. 4. This court heard at length learned advocate Mr. H.R. Prajapti for the petitioner, learned Government Pleader for respondent No. 1, learned advocate Mr. Mehul Shah for respondent No. 2-Municipality, learned senior counsel Mr. R.S. Sanjanwala with learned advocate Mr. Ajay Jagirdar for respondent No. 5, learned advocate Ms. Kruti Shah for respondent No. 6, learned advocate Mr. R.D. Dave for respondent No. 7, learned advocate Mr.Shivang J. Shukla for respondent No. 9.
Mehul Shah for respondent No. 2-Municipality, learned senior counsel Mr. R.S. Sanjanwala with learned advocate Mr. Ajay Jagirdar for respondent No. 5, learned advocate Ms. Kruti Shah for respondent No. 6, learned advocate Mr. R.D. Dave for respondent No. 7, learned advocate Mr.Shivang J. Shukla for respondent No. 9. 4.1 It is the public interest petitioner's case that in granting development permission, the relevant GDCR was breached, because according to him, the Municipality was enjoined to provide 20% area net out of the total land area. The land originally belonged to closed mill was purchased by respondent No. 5. It was contended that while granting development permission, the provision of road was required to be made separately and road portion could not have been included in 20% deduction of Clause 10.10.1. It is the case that if Clause 10.10.1 is to be so interpreted and applied, it would frustrate the very purpose of keeping total 20% area from the land of the mill company. It was submitted that 20% deduction contemplated in the said Clause is independent of any other provision including any other amenities which may be provided under other relevant GDCR. 4.2 The petitioner inter alia contends that (i) instead of using land for internal roads under GDCR that is 8,699.90 Sq. Meters, respondent No. 5 has used 15,730 Sq. Meters of land (ii) so far as internal road shown in layout plan in the column (B) is concerned, it is a road between two commercial buildings situated on plot nos. 17 and 18 ending with boundary wall. (iii) it is a passage road. (iv) land used for private purposes can never be considered while deducting 20% land under the GDCR. (v) deducting the area of land of column (B) that is 2,070 Sq. Meters from the total land used by the respondent No. 5 that is 15,730 Sq. Meters for making 18 Meter internal roads, the total land used by respondent No. 5 comes to (15,730-2,070) =13,660 Sq. Meters. (vi) as per GDCR, respondent No. 5 was supposed to use land fro making internal roads come to 8,699.90 Sq. Meters. 4.3 Respondent No. 2 Nagarpalika in the affidavit filed through Chief Officer stated that out of the total land purchased by respondent No. 5, that is approximately 75,653 Sq.
Meters. (vi) as per GDCR, respondent No. 5 was supposed to use land fro making internal roads come to 8,699.90 Sq. Meters. 4.3 Respondent No. 2 Nagarpalika in the affidavit filed through Chief Officer stated that out of the total land purchased by respondent No. 5, that is approximately 75,653 Sq. Meters, while granting development permission to respondent No. 2, as per Clause 10.10.1 read with Clause 2.5 of the GDCR, 20% land has been deducted which is in the shape of public road. According to the Municipality, it took opinion of a lawyer and granted permission in accordance with law and in compliance of the GDCR. 4.4 Respondent No. 3 and 4 filed their affidavit in-reply through Chief Town Planner taking the stand that as far as respondent No. 2-Municipality is concerned, powers are delegated by the AUDA to Nagarpalika for implementation of the Town Planning Scheme and therefore, Nagarpalika was entitled to grant permission. 5. The facts emerging and not in dispute are inter alia that respondent No. 5 purchased total land admeasuring 75,653 Sq. Meters as an auction purchaser upon the mill company going into liquidation. It applied for permission to the Nagarpalika for development. 20% of the total land would come to 8,699 Sq. Meters. What is essentially contended by the petitioner is that respondent No. 5 put up the construction getting the plans approved from the Municipalities by including the portion of internal roads by including and treating the part of internal roads to be within said 20% deduction. According to the petitioner, if the land used in the road is to be considered as part of 20%, provision for separate deduction in Clause 10.10.1 would be loosing its purpose and rationale. It is submitted that the internal roads cannot be said to be amenities and that the internal road shown in the lay-out plans between two commercial building situated at Plot No. 17 ends with a boundary wall. It is further contended that there is no benefit to the public at all because of the construction of internal roads by respondent No.5 and further that Nagarpalika has also not declared the said road as public road. It was submitted that it could not be said that the land used for public road would be calculated for the purposes of 20% deduction.
It was submitted that it could not be said that the land used for public road would be calculated for the purposes of 20% deduction. 5.1 This Court could not be oblivious of the fact that matter is in public interest jurisdiction and the issues are raised in public interest. The controversy and contentions were considered by the Court in that light. Respondent No. 5 purchased the land of Navjivan Mills which went into liquidation. Respondent No. 2-Municipality granted development permission to respondent No. 5. The total area appears to have been divided into 18 sub-plots and all the plots were developed by the individual developer as per the development permission. It is stated that out of total 78,653 Sq. Meters of land, 15,730 Sq. Meters is kept for internal roads for the entire area. The contention of the petitioner is that roads are required to be provided for even otherwise as per Clause 10.4 of the GDCR and the length and width of road for commercial, industrial and for residential use are fixed in the GDCR, therefore, 20% deduction contemplated under Clause 10.10.1 cannot include road portion and it has to be an independent deduction. On the other hand, rival say is that Clause 10.10.1 mentions that 20% should be earmarked for "public amenities” which is defined in Clause 2.5 and which includes the roads also. We hastened to remember that the Court is not called upon to interpret the relevant clauses of GDCR, but is required to examine the public interest dimension at the controversy. 6. The focus in the grievance for the petitioner is that the road in particular which passes between Plot No. 17 and Plot No. 18 and extends towards North where Plot No. 15 is located. It was attempted to contend that at that place there is dead-end, therefore the road cannot be termed and cannot be treated a public road. The map of sanctioned plan is on record. With the help of learned advocates of all the parties, the Court was made to understand various geographical positions in the said sanctioned map and the plan. A road of the width of 15 meter passes between plots No. 17 and 18 and then the way takes turn towards West opposite of plot No. 15.
With the help of learned advocates of all the parties, the Court was made to understand various geographical positions in the said sanctioned map and the plan. A road of the width of 15 meter passes between plots No. 17 and 18 and then the way takes turn towards West opposite of plot No. 15. It was stated, and could not be disputed by the side of the petitioner, that the same is not a dead-end and the said way leads to another building and thereafter was goes further to meet another road. The people can pass through and use the said way. What is alleged as dead end by the petitioner is stated to be location which existed even prior to the purchase of land by respondent No. 5 and beyond that there was no way at all from the beginning. There is no dispute as such to the aspect, and also to the aspect that all the internal roads of 18 meters width and 15 meters width wherever provided are used since several years. They are used freely and conveniently by the pedestrians and vehicular traffic including the four wheelers which can easily pass to and fro. Therefore the roads provided in the developed area in question are used as public amenity and they are for all purposes public road. They are actually used by general public for their arrival and exit to the different places. It hardly makes a difference for the public and the public use of the road that the road is not declared as public road. The continued public utility and use is beyond dispute. 6.1 The Municipality appears to have granted development permission as back as on 12th July, 2004 which was after taking a legal opinion from advocate as to how to calculate 20% deduction for public amenities under clause 10.10.1 of GDCR. It is difficult to question and doubt the decision of the Municipality to grant the development permission on the basis of the opinion of the advocate and calculating 20% deduction inclusive of the public roads, even though the petitioner has questioned the conduct of the Municipality in taking opinion from the advocate. The Court is least concerned with this aspect.
It is difficult to question and doubt the decision of the Municipality to grant the development permission on the basis of the opinion of the advocate and calculating 20% deduction inclusive of the public roads, even though the petitioner has questioned the conduct of the Municipality in taking opinion from the advocate. The Court is least concerned with this aspect. The opinion of the Chief Town Planner including opinion dated 23rd September, 2009 which is addressed to Special Officer on Duty, Urban Development Department is on record in which Town Planner mentioned that Kalol Nagarpalika granted development permission in question after taking legal opinion from an advocate; from the GDCR it is not clear as to how 20% deduction should be effected from the total land. The Town Planner stated that since the development permission has already been acted upon and construction is already completed at the place, it was not possible to now separate 20% net deduction from the area. The Town Planner stated that in future a care should be taken and the GDCR should be implemented without booking any dispute. 6.2 It is not necessary to advert to the above aspect any more, as already stated, this Court presently deals with the controversy in its public interest jurisdiction. The question about the manner of direction of 20% contemplated in clause 10.10.1 of the GDCR is not being decided by us and without expressing any final opinion thereof, the said aspect is kept open if required to be ironed out and interpreted in any future appropriate case. 6.3 The ground-facts do not suggest that public interest has in any way suffered in the present case by effecting deduction of 20% in the development plan as sanctioned by the Municipality. When no public interest is shown to have been adversely affected, the public interest petitioner cannot claim any relief. Public interest jurisdiction cannot be invoked to cure all the grievances even those which does not need any public domain redressal. Issues which are not of public nature and dimension in their ultimate analysis cannot be raised to be decided in public interest litigation. This aspect is a distinctive basis to be entitled to a relief in the public interest litigation.
Issues which are not of public nature and dimension in their ultimate analysis cannot be raised to be decided in public interest litigation. This aspect is a distinctive basis to be entitled to a relief in the public interest litigation. 6.4 In State of Uttaranchal v. Balwant Singh Chaukhal and others [ (2010) 3 SCC 402 ], the Supreme Court outlined the parameters for exercise of public interest jurisdiction by the Courts. Where a genuine public interest is involved, public interest petitions may be encouraged. While exercising public interest jurisdiction, one of the important aspects is the credential of the petitioner claiming to be acting in public interest. In the present case, the petitioner is an advocate who is stated to have his office in the building in the plot developed as per the development permission. He also uses the roads as public amenity. It is difficult to comprehend what has prompted the petitioner to raise the issue about 20% deduction of land under clause 10.10.1 of GDCR, for, neither he has any sufferance of inconvenience, nor the interest of public at large is shown to be suffered in any manner. It is observed in State of Uttaranchal (supra) that the Courts should ensure that the petitions filed by busy buddies for extraneous and ulterior motives must be discouraged and redressal in public interest litigation must aim at genuine public harm or public injury. We are afraid that in terms of these credentials, the present petition lacks substance. 7. In light of above, no ground was made out for exercise of public interest jurisdiction. The same is hereby dismissed. Interim relief granted earlier shall stand vacated. Petition dismissed.