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Gujarat High Court · body

2019 DIGILAW 297 (GUJ)

Gromax Agri Equipment Limited v. State Of Gujarat

2019-04-03

ANANT S.DAVE, BIREN VAISHNAV

body2019
JUDGMENT : ANANT S. DAVE, J. 1. All these Letters Patent Appeals preferred by the appellant under Clause 15 of the Letters Patent have genesis in common oral order dated 16.01.2019, passed by learned Single Judge (Coram: Hon’ble Mr.Justice A.J.Desai) in Special Civil Application No.17618/2016, Special Civil Application No.8061/2016, Civil Application No.1/2017 and Civil Application No.1/2018 filed in Special Civil Application No.17618/2016. By the above common order, the writ petitions and civil application filed by the petitioner - appellant herein came to be dismissed. 2. Special Civil Application 8061/2016 was filed by the appellant - Mahindra Gujarat Tractor Limited (MGTL) in view of breach of fundamental rights under Articles 14, 19(1)(g), 21 and 226 of the Constitution of India, wherein it was apprehended that Vadodara Mahanagar Seva Sadan - respondent No.2 intended to construct Auxiliary Pumping Station (for sewage purpose) upon land bearing Revenue Survey No.498 of village Manjalpur, District: Vadodara, which belonged to the appellant and such an action was contrary to law and prayers were made accordingly. Special Civil Application No.17618/2016 was filed by the appellant seeking a Writ of Mandamus or any other appropriate writ, order of direction in the backdrop of State Authority returning the Draft Town Planning Scheme No.31, which covered the land of the appellant, to the effect that the plans for development of the land in question submitted to the respondent - Vadodara Mahanagar Seva Sadan, were required to be sanctioned. Prayer was also made to quash and set aside the Draft Town Planning Scheme No.31 (Vadsar-Manjalpur-Nagarwada) insofar as land of the appellant was affected. Civil Application No.5669/2017 was filed by the original petitioner - appellant in Special Civil Application No.17618/2016, with a prayer to declare the action of Vadodara Mahanagar Seva Sadan of putting up construction of Auxiliary Pumping Station for sewerage purpose in larger public interest on part of land of appellant-Company as being illegal, unjust and without authority of law. Civil Application No.1/2018 was preferred by Vadodara Mahanagar Seva Sadan in Civil Application No.5669/2017 in Special Civil Application No.17618/2016 with a limited purpose to direct the original petitioner - appellant to cooperate the Vadodara Mahanagar Seva Sadan at least to the extent of allowing it to complete the proposed over bridge from Munjmahuda side to Lal Baug side over Vishwamitri Railway Station by temporarily allowing the Corporation to use the land of the appellant. 3. 3. The facts emerging on record of these appeals by and large remain undisputed about origin of the appellant - Company, when in the year 1999-2000, the stake of Government of Gujarat in the Company was reduced to 40% and that of Mahindra and Mahindra to 60% by acquisition. The dispute pertains to Revenue Survey Nos.498, 498/Paiki and 611 of Village Manjalpur, District Vadodara, in all admeasuring 50 Acres and 12 Gunthas, owned by the appellant-Company. The name of the appellant - Company was changed to Tractor and Bulldozer Private Limited in 1959, and further to Hindustan Tractor Limited in 1965 and later on Gujarat Tractor Corporation Limited. Later on, the land in question became part of Draft Town Planning Scheme No.31 (Vadsar-Manjalpur-Nagarwada), as introduced by respondent No.2 wherein, respondent No.1 - State of Gujarat wanted to reserve part of land of Survey No.498, 498/Paiki for construction of Auxiliary Pumping Station (for sewage purpose). Further, the above Draft Town Planning Scheme was not sanctioned and was returned on 13.04.2015, so as to suggest certain modifications and is not yet finalized and is pending with respondent No.2 - Vadodara Mahanagar Seva Sadan. Meanwhile, correspondence was made by appellant with various authorities raising objections for putting up Auxiliary Pumping Station and illegal encroachment by officers of respondent No.2 but in spite of the same and as the Draft Town Planning Scheme had not received sanction as envisaged under Section 49 of the Gujarat Town Planning and Urban Development Act, 1976 (“T.P.Act” for short), a prayer was made by the appellant, which owned the land in question, to declare such action of the respondents as illegal. 4. Before the learned Single Judge, learned Senior Advocate appearing for the petitioner - appellant emphatically submitted about lack of authority, power, etc. 4. Before the learned Single Judge, learned Senior Advocate appearing for the petitioner - appellant emphatically submitted about lack of authority, power, etc. of respondent - Vadodara Mahanagar Seva Sadan to refuse to sanction the plan submitted by the appellant for development of the land and that in the backdrop of clear fact emerging about refusal on the part of the State Government under Section 48 of the T.P.Act, once, the State Government had refused to sanction the Draft Town Planning Scheme, restriction on use and development of the land after declaration of a Scheme would not be applicable as provided under Section 49(g) of the T.P.Act and therefore, the action of the respondent - Vadodara Mahanagar Seva Sadan of not sanctioning the plan for development of the land of the appellant as well as of putting up Auxiliary Pumping Station for sewerage purpose, both, were illegal, arbitrary and contrary to the provisions of the T.P.Act. 5. As against the above, the contention of the respondent - Vadodara Mahanagar Seva Sadan was that the State Government had only returned the Draft Town Planning Scheme, suggesting certain modifications and it would not amount to refusal to sanction the Draft Scheme and further, a decision was already taken by the authority not to put up Auxiliary Pumping Station and to the extent as above, the prayer made in Special Civil Application No.8061/2016 became otiose. Further, the said respondent submitted that what was expected from the original petitioner - appellant was to spare its land temporarily for putting up scaffolding to complete over-bridge on which construction had already commenced and was about to be completed and least was expected from the appellant in the larger public interest since once construction of the over-bridge was over, temporary structure supporting the bridge was to be removed. 6. Based on the rival contentions, learned Single Judge interpreted Sections 48, 49 and other relevant provisions of the T.P.Act and also about returning of Draft Town Planning Scheme by the State Government vide Notification dated 13.04.2015, and ultimately rejected the prayer made by the appellant. 7. 6. Based on the rival contentions, learned Single Judge interpreted Sections 48, 49 and other relevant provisions of the T.P.Act and also about returning of Draft Town Planning Scheme by the State Government vide Notification dated 13.04.2015, and ultimately rejected the prayer made by the appellant. 7. Before us, all contentions raised before learned Single Judge by learned counsel appearing for the appellant are reiterated and it is further submitted that interpretation put forth by learned Single Judge of Section 48, 48(2) of the T.P.Act in juxtaposition to Notification dated 13.04.2015, is contrary to law and in view of Section 49(g) of the T.P.Act, which pertains to restrictions on use and development of land after declaration of a Scheme, that is, on or after the date on which a Draft Scheme is published under Section 41, no person shall without obtaining necessary permission, carry out any development within the area included in the Scheme. It is submitted that clause (g) of Section 49 is explicitly clear inasmuch as that the restrictions imposed by this section shall cease to operate in the event of the State Government refusing to sanction the Draft Scheme or the Preliminary Scheme or in the event of withdrawal of the Scheme under Section 66 or in the event of the declaration of intention under sub-section (2) of Section 42 of the T.P.Act. Therefore, in the facts of the present case, by Notification dated 13.04.2015, when the State Government has refused to sanction the Draft Town Planning Scheme so submitted by Vadodara Mahanagar Seva Sadan, the restrictions on use and development of land after declaration of a Scheme would not remain in force. Resultantly, the development of the land so proposed by the plan prepared by the appellant ought to have been considered and sanctioned. In any case, any use of land owned and possessed by the appellant by any authority including Vadodara Mahanagar Seva Sadan for construction of over-bridge by temporarily using the same, was not permissible. 8. Our attention is drawn by learned Senior Advocate for the appellant to the Scheme of the Gujarat Town Planning and Urban Development Act, 1976, the Rules made thereunder and the language of Notification dated 13.04.2015 issued by the State Government, and accordingly, it is submitted that the order passed by learned Single Judge deserves to be quashed and set aside. 9. 9. Heard Mr.Deven Parikh, learned Senior Advocate with Mr.S.P.Majmudar, learned advocate for the appellant, Mr.Nilesh Pandya, learned advocate for respondents No.2 and 3, and Ms.Nisha Thakore, learned Assistant Government Pleader for respondents No.1 and 5. 10. Having perused the entire record and having heard learned counsel appearing for the respective parties in the context of above factual scenario and having considered the rival submissions made vis-a-vis common oral order under challenge, it is not in dispute that respondent - Vadodara Mahanagar Seva Sadan, in its affidavit dated 07.02.2017, has made it clear that Auxiliary Pumping Station for sewerage purpose was not to be constructed upon land bearing Survey No.498 belonging to the appellant and therefore, the above issue required no further adjudication. Learned Single Judge, has referred to Paragraphs 4 and 5 of the above affidavit-in-reply, in Paragraph-7 of the oral order, which read as under: “7. As far as this petition is concerned, the respondent Corporation by filing an affidavit dated 7.2.2017 has made it clear that Auxiliary Pumping Station (for sewage purpose) is not to be constructed upon the land bearing Revenue Survey No.498 belongs to the petitioner. Paragraphs 4 and 5 of the said affidavit read as under :- “4. I say that at present, the Corporation has declared the intention for Town Planning Scheme No.31 known as ‘Vadsar-Manjalpur-Nagarwada and after receiving the objection from the owner, the same is submitted to the State Government for sanctioning the draft Town Planning Scheme No.31. I say that in the said Town Planning Scheme, Final Plot No.99 has been kept reserved for the public purpose for the Nalia road land and part of the land bearing Survey No.498. However, in fact, at present the construction of the auxiliary pumping station being carried out on Nalia road, as the draft Town Planning Scheme is yet to be sanctioned by the State Government. However, in the said Town Planning Scheme No.31, the final Plot No.99 has been kept reserved for the public purpose keeping in mind the larger public interest. Annexed hereto and marked as Annexure-R-II is a copy of map in respect of draft Town Planning Scheme No.31. 5. I say that in view of the aforesaid fact, there is no cause of action arisen to file the present petition by the petitioner. Annexed hereto and marked as Annexure-R-II is a copy of map in respect of draft Town Planning Scheme No.31. 5. I say that in view of the aforesaid fact, there is no cause of action arisen to file the present petition by the petitioner. I say that on the land on which the Corporation is putting up the auxiliary pumping station is already vested in the Corporation which is a Nalia road and the Corporation is not at all encroached and/or used the part of the land of the petitioner as alleged in the present petition. I say that the Corporation is not doing any construction on the land owned by the petitioner and the construction of auxiliary pumping station is being carried out on the land as stated above. I say that in these circumstances, even the contention raised about non-sanctioning of the draft Town Planning Scheme No.31 is also not surviving whether it is proved not, as the Corporation has its own land (Nalia land) where at present the auxiliary pumping station is constructed and accordingly, the petitioner was already informed with regard to its objection. I say that the land which is utilized by the Corporation is already vested in the Corporation and the Corporation is the owner of the said land and it is not belonging to the VUDA. I say that the industrial zone declared by the VUDA is not concerned about the same as the Corporation is putting the construction on the Nalia road (drainage system) which is very much required for the public at large.” Therefore, the respondent-Corporation was not constructing Auxiliary Pumping Station on dispute Nalia land and it was rightly held by learned Single Judge that grievances raised by the petitioner in Special Civil Application No.8061/2016 would not survive. 11. Now, if the Notification dated 13.04.2015 at Annexure-C to the petition, issued by Urban Development and Urban Housing Department of Government of Gujarat is perused, it reads as under: GOVERNMENT OF GUJARAT URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT SACHIVAIAYA GANDHINAGAR. NOTIFICATION Dated 13.04.2015 THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENTACT 1976. 11. Now, if the Notification dated 13.04.2015 at Annexure-C to the petition, issued by Urban Development and Urban Housing Department of Government of Gujarat is perused, it reads as under: GOVERNMENT OF GUJARAT URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT SACHIVAIAYA GANDHINAGAR. NOTIFICATION Dated 13.04.2015 THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENTACT 1976. No.GH/V/158 of 2015/TPS-122014-2465-L: WHEREAS, under section 41(1) of the Gujarat Town Planning and Urban Development Act, 1976 (Presidents Act No. 27 of 1976) Vadodara Municipal Corporation declared its intention of making of the Draft Town Planning Scheme No.31 (Vadsar-Manjalpur-Nagarvada) (hereinafter referred to as the said Act, the said Authority and the said Draft Scheme respectively) AND WHEREAS, under section 42(1) of the said Act, the said Authority made and published, duly in the prescribed manner in respect of the area included in the said Draft Scheme AND WHEREAS, after taking into consideration, objection or suggestion received by the said authority. The said Authority submitted the said Draft Scheme to the State Government for sanction under section 48(1) of the said Act, in the manner provided therein; NOW THEREFORE, in exercise of the powers conferred by section 48 (2) of the said Act, the Government of Gujarat hereby:- Return the said Draft Scheme to the said Authority to carry out the directions as mentioned in the Annexure-1 By order and in the name of the Governor of Gujarat, sd/- (Neela Munshi) Officer on Special Duty & Ex-Officio Deputy Secretary to the Government of Gujarat Urban Development and Urban Housing Department Annexure-1 to the above Notification mentions about carrying out survey with regard to permanent residents in the vicinity of river Vishwamitri and land affected due to submerge, after fixing the boundaries, and one of such recommendations is about widening the road from 15.00 meters to 18.00 meters, parallel to railway line on the eastern side of the Scheme, on which emphasis is supplied by us, to indicate that the Draft Scheme is returned with suggestions/modifications for further exercise to be undertaken at the end of Vadodara Mahanagar Seva Sadan. 12. Learned Single Judge, in the above context, considered Section 48 of the T.P.Act in Paragraphs-13, 14 and 15 of the impugned order, which read as under: “13. I have heard learned advocates appearing for the respective parties. 12. Learned Single Judge, in the above context, considered Section 48 of the T.P.Act in Paragraphs-13, 14 and 15 of the impugned order, which read as under: “13. I have heard learned advocates appearing for the respective parties. As provided under Section 41 (1) of the T.P. Act, in the present case, Vadodara Mahanagar Seva Sadan - respondent No.2 Corporation - appropriate authority declared its intention to make Town Planning Scheme No.31 (Vadsar - Manjalpur - Nagarwada). As provided under Section 42 (1) of the Act, the intention was declared by the Corporation. After receiving the objections from the affected parties, relevant documents with regard to the Scheme and the suggestions received by the authorities, the same was sent to the State of Gujarat for its sanction. Section 48 of the T.P. Act reads as under :- “48. Power of State Government to sanction draft scheme :- (1) The appropriate authority shall, within three months from the date of the publication of the draft scheme in the Official Gazette, submit the draft scheme with any modifications that may have been made therein under Section 47 together with the objections which may have been communicated to it, to the State Government for sanction. (2) If the State Government sanctions such scheme, it shall in such may think fit, the State Government may, within three months from the date of its receipt, by notification, sanction such scheme with or without modifications or subject to such conditions as it may think fit to impose or refuse to sanction it. However, the State Government may, if deemed fit, by notification in the Official Gazette, return the scheme to the appropriate authority to carryout such modifications as may be directed, including the direction to include or exclude any land in question in the scheme. The appropriate authority shall comply with the directions of the State Government and shall, after following the procedure as laid down under sub-section (1) or sub-section (2) or both of Section 42, submit the scheme within the specified time limit to the State Government.” 14. From the provisions of Section 48 (2) of the T.P. Act, it is clear that the Government of Gujarat has power to sanction and/or refuse the Town Planning Scheme or may suggest certain modification with or without conditions. From the provisions of Section 48 (2) of the T.P. Act, it is clear that the Government of Gujarat has power to sanction and/or refuse the Town Planning Scheme or may suggest certain modification with or without conditions. However, simultaneously, the Government of Gujarat is also empowered to return the Scheme to the appropriate authority to carry out such modifications as may be directed. If the Notification dated 13.4.2015 is perused, following paragraphs are relevant to deal with the case on hand which read as under :- “NOW THEREFORE, in exercise of the powers conferred by Section 48 (2) of the said Act, the Government of Gujarat hereby : Return the said Draft Scheme to the said Authority to carry out the directions as mentioned in the Annexure - 1. By order and in the name of the Governor of Gujarat.” 15. It is crystal clear from the above Notification that the State Government has thought it fit to return the said draft Town Planning Scheme however with certain directions referred in Annexure 1. If Annexure 1 is perused, it has been stated that certain area adjacent to Vishwamitri river which is declared as prohibited area 1 and prohibited area 2 by the Vadodara Urban Development Authority and, therefore, appropriate authority has to decide the area and has to fix the boundaries of restricted zone 1 and restricted zone 2 and accordingly, Corporation was directed to do the same. Therefore, in my opinion, the draft Town Planning Scheme has been returned by the State of Gujarat only for the above purpose and the entire draft Town Planning Scheme has not been refused. Therefore, the submission made by learned Senior Advocate Mr. Deven Parikh cannot be accepted that the appropriate authority has been directed to declare its intention from inception.” 13. The above interpretation, in our view, cannot be said to be contrary to what is envisaged and when there is no refusal on the part of the State Government to sanction the Draft Town Planning Scheme but a decision is taken to return the same, applicability of Section 49(g) about non-applicability of restrictions does not arise at all. The above interpretation, in our view, cannot be said to be contrary to what is envisaged and when there is no refusal on the part of the State Government to sanction the Draft Town Planning Scheme but a decision is taken to return the same, applicability of Section 49(g) about non-applicability of restrictions does not arise at all. Examining the contention raised by learned Senior Counsel independently from the reasonings assigned by learned Single Judge, from a conjoint reading of the Notification dated 13.04.2015 which stipulates that the Draft Scheme is returned to the authority to “carry out directions as mentioned in Annexure-1”, together with “Annexure-1” wherein number of suggestions are made, including that of widening of road parallel to the railway line on the eastern side of the Scheme, we are of the view that the Competent Authority of the State Government has not refused to sanction the Draft Scheme but has decided to return the Scheme with suggested modifications. Therefore, we are in agreement with the reasonings of learned Single Judge and we find no substance in the above arguments canvassed by learned Senior Counsel for the appellant. 14. As regards Civil Application No.1/2018 preferred by Vadodara Mahanagar Seva Sadan in Civil Application No.5669/2017 in Special Civil Application No.17618/2016, to direct the original petitioner - appellant to cooperate the Vadodara Mahanagar Seva Sadan to allow it to complete the proposed over-bridge from Munjmahuda side to Lal Baug side over Vishwamitri Railway Station by temporarily allowing the Corporation to use the land of the appellant, the learned Single Judge, as such, has expressed no opinion. However, considering the totality of the circumstances, it is expected of an individual, a person or a legal entity, to cooperate the authority when development work is being carried out in the interest of public at large and in the facts of this case, construction of bridge has remained incomplete because of litigation undertaken by the appellant and when an affidavit was filed by respondent - Vadodara Mahanagar Seva Sadan, making it clear that no construction was carried out on disputed land by putting up Auxiliary Pumping Station for sewerage purpose, in our view, continuation of litigation by the appellant is only with a view to thwart completion of bridge connecting two important areas of the city of Vadodara which is meant for providing better amenities to citizens. 15. 15. Reliance is placed by learned Senior Counsel for the appellant upon a decision in the case of Modinagar Coop. Housing Society Ltd. & Anr. v. State of Gujarat & Ors., (2006) 3 GLR 2020 , to contend that pending the Scheme before the State Government, no one can be permitted to put up any construction on the disputed land. If facts of the said case are considered, pending Draft Town Planning Scheme, AUDA granted Development Permission in anticipation of sanction of Draft Scheme in favour of the petitioners and when the petitioners were restrained from putting construction on the basis of Development Permission, such action of the State was challenged. In this context, it was held that unless and until the Final T.P. Scheme is sanctioned, it cannot be said that the person in whose favour the land is allotted becomes the absolute owner, and therefore, as such, pending even Draft T.P.Scheme before the State Government and before it is even sanctioned, normally the AUDA ought not to have and /or should not have granted the Development Permission in anticipation of sanctioning of the Draft T.P.Scheme. In our view, on the contrary, if proper interpretation is put forth, the said decision would come to the rescue of Vadodara Mahanagar Seva Sadan and would be of no help to the appellant. In any event, the said decision in our view would not take the case of the appellant any further. 16. In view of the above discussion, we find no reason to interfere with the order passed by learned Single Judge. The Letters Patent Appeals, being devoid of merit, are dismissed. 17. In view of dismissal of Letters Patent Appeals, Civil Applications for interim relief would not survive and would stand disposed of accordingly. After pronouncement of judgment, learned advocate for the appellant has prayed to continue the status-quo for a period of four weeks. For reasons stated hereinabove, the request is declined.