Gujarat High Court
Shri Laxmi Developer vs State Of Gujarat on 24 June, 2025
NEUTRAL CITATION
C/SCA/6079/2025 JUDGMENT DATED: 24/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6079 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
YES
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SHRI LAXMI DEVELOPER
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
MR KAUSHAL D PANDYA (2905) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 24/06/2025
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Mr. Sahil
Trivedi waives service of notice of Rule for respondent No. 1
and learned advocate Mr. Kaushal Pandya waives service of
notice of Rule on behalf of respondent Nos. 2 and 3.
2. This petition is filed with a prayer to quash and set aside
the notice/order dated 01.04.2025 (Annexure-A, Page No. 18),
passed by respondent No. 3, whereby, the development
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permission sought by the petitioners is kept in abeyance on the
ground of pendency of Special Civil Application No. 1944 of
2024.
3. The brief facts referred in the petition are as under: –
The petitioner is a registered partnership firm who
purchased the land bearing Revenue Survey / Block No.
199/5+6, forming part of TP Scheme No. 49 (Katargam), Final
Plot No. 292 admeasuring around 1957 sq. meters of non-
agricultural land by registered sale deed bearing registration
No. 20289 of 2023 dated 12.06.2023 (hereinafter referred to as
‘subject land’). The said land was purchased by the petitioner
and thus the ownership of the subject land with the petitioners
is not in dispute. It is case of the petitioners that prior to their
purchase, Preliminary Town Planning Scheme No. 49
(Katargam) was sanctioned by the State Government under
Section 69 of the Gujarat Town Planning and Urban
Development Act, 1976 (for short ‘the TP Act, 1976‘) vide
notification dated 03.06.2023. Therefore, the subject land
forming part of the Act is not in dispute. Further, upon
sanctioning of Town Planning Scheme No. 49 (Katargam),
against Original Plot No. 281, the owners were allotted Final
Plot No. 291, 292 and 293. It is further case of the petitioners
that against original plot of 10017 sq.metrs.; Final Plot Nos.
291, 292 and 293 with area of 7012 sq. meters, were allotted
and thus the owners of Original Plot No. 218 had given their
deductions prior to allotment of their respective Final Plots. It
is case of the petitioners that though the petitioners are owner
of Final Plot No. 292, a small portion of Original Plot No.Page 2 of 13
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58 / Survey No. 92/2, is forming part of Final Plot No. 292. In
other words, Final Plot No. 292 which is in ownership of the
petitioner, contain small portion (95.41 sq. meters )of Original
Plot No. 58 / Survey No. 92/2 for which the Special Civil
Application No. 1944 of 2024 is pending adjudication before
this Court.
3.1 It is further case of the petitioners that keeping in mind
that a small portion of petitioners Final Plot No.292 (95.41 sq.
meters) is forming part of Original Plot No. 58, the petitioners
sought development permission excluding the disputed land
(95.41 sq. meters) showing that land as not in possession with
the petitioners at this stage. However, since the development
permission was not decided and kept in abeyance vide order
dated 01.04.2025, this petition is filed.
4. Heard learned advocate Mr. D. K. Puj for the petitioners
and learned Assistant Government Pleader Mr. Sahil Trivedi for
respondent No. 1 and learned advocate Mr. Kaushal Pandya for
respondent Nos. 2 and 3.
5. Learned advocate Mr. Puj for the petitioners submitted
that the order dated 01.04.2025 is bad in law because the
sanctioning of Preliminary Town Planning Scheme No. 49
(Katargam) by notification dated 03.06.2023 is not in dispute.
Pursuant to the sanctioning of Preliminary Town Planning
Scheme No. 49 (Katargam) the allotment of Final Plot No. 292
to the erstwhile owner against his Original Plot No. 218 is also
not in dispute. Learned advocate by placing reliance on Form
No. F submitted that since the predecessors in title of the land
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were considered for allotment of Final Plot against their
Original Plot, deduction was accordingly done which is evident
from Form No. F. Against Original Plot of 10017 sq. meters
Final Plot allotted is of 7012 sq. meters where Final plot
no.292 is part of that 7012 sq. meters. However, since portion
of Final Plot No. 292 is disputed, the petitioners applied for
development permission excluding that small portion, despite
that the development permission is denied which erroneous
and contrary to law.
5.1 Learned advocate submitted that as per Sub Section 4 of
Section 29 of the TP Act, 1976, the application, if any,
preferred under Section 27 of the TP Act, 1976 shall have to
be decided within a stipulated time period. If the authority
fails to communicate order to the applicant within a period of
3 months from the date of receipt of the application, such
permission shall be deemed to have been granted on expiry of
the period of 3 months. Therefore, under no provision of the
T.P.Act 1976, and the Rules framed thereunder the authority
can order not to decide the application which has been done
in the present case. Learned advocate therefore submitted that
the present petition deserves to be allowed.
5.2 Moreover, as per Section 67 and 68 of the TP Act, 1976,
once the Town Planning Scheme is sanctioned by the State
Government, the same is required to be implemented by the
respondent – Corporation. The respondent – Corporation being
the implementing authority, the order passed dated 01.04.2025
is contrary to the provisions of the TP Act, 1976 deserves to
be quashed and set aside.
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5.3 Learned advocate for the petitioner further submitted that
in this case pendency of petition and an order of status-quo
would not have any bearing on the development application
preferred by the petitioners since the petitioner has applied for
development permission excluding the area which is subject
matter of Special Civil Application No. 1944 of 2024. Further,
an owner of the land ordinarily would be entitled to use or
develop the land for the purpose unless there exists certain
regulation in the statute of statutory rules.
5.4 Learned advocate for the petitioners relied upon the
following decisions: –
In the case of Chairman, Indore Vikas Pradhikaran v.s
Pune Industrial Coke & Chemicals Ltd. reported in (2007)
8 SCC 705;
In the case of Ganesh Sahakari Grahak Mandli Ltd. v.s
Collector decided by this Court on 06.12.1999 in Special
Civil Application No. 8114 of 1999;
In the case of T. Vijayalakshmi and Others v.s Town
Planning Member and Another reported in (2006) 8 SCC
502;
5.5 Moreover, the petitioners are ready to file and
undertaking which he has stated on oath in the memo of
petition that the petitioners would not develop and keep
vacant the portion of land bearing Survey No. 292 for which
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the petition is pending and referred in the order dated
01.04.2025.
6. Opposing the petition, learned advocate Mr. Kaushal
Pandya for respondent Nos. 2 and 3 – Corporation submitted
that pendency of Special Civil Application No. 1944 of 2024 is
not in dispute. In the said petition, this Court has already
granted status quo and if any development application is
considered and granted, it may create multiplicity of
proceedings. Learned advocate further submitted that the order
dated 01.04.2025 is not the rejection order by which the
petitioners ought to have been aggrieved. Keeping in mind the
pendency of the petition, the authority has acted respecting the
status quo granted by this Court in Special Civil Application
No. 1944 of 2024. Therefore, the request made at this stage to
quash and set aside the order and to grant the development
permission may not be considered at this stage. Learned
advocate therefore submitted that the present petition does not
require consideration.
7. Considered the submissions and the decisions on record.
Upon revisitation of facts, it is noticed that allotment of Final
Plot No. 292 which they have purchased through registered
sale deed is not in dispute. Further, in this case, the
Preliminary Town Planning Scheme No. 49 (Katargam) is
sanctioned vide notification dated 03.06.2023 by the State
Government under Section 65 of the TP Act, 1976 and
therefore the said Town Planning Scheme has become part of
the Act. It is true that the Corporation being the implementing
authority is required to implement the Town Planning Scheme
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under Section 67 r/w Section 68 of the Act, 1976 as
expeditiously as possible which has been done in this case by
giving Final Plots against the Original Plots.
8. Section 29 of the TP Act, 1976 refers to grant or refuse
of permission. Sub Section 4 of Section 29 of the TP Act, 1976
reads as under: –
“Section 29. (1) On receipt of an application
under section 27 or section 28, the appropriate
authority shall furnish the applicant with a
written acknowledgment of its receipt and after
satisfying itself that the development charge 3
[ and scrutiny fees,] if any, payable by the
applicant has been paid and after making such
inquiry as it thinks fit may, subject to the
provisions of this Act, by order in writing-
(i) grant the permission with or without any
condition; or
(ii) grant the permission, subject to any general
or special orders made by the State Government
in this behalf; or
(iii) refuse to grant the permission.
(2)Any permission under sub-section (1) shall be
granted in the prescribed form and every order
granting permission subject to conditions or
refusing permission shall state the grounds for
imposing such conditions or for such refusal.
(3)Every order under sub-section (1) shall be
communicated to the applicant in the manner
prescribed by regulations.
(4)If the appropriate authority fails to
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communicate its order to the applicant within
three months from the date of receipt of the
application, such permission shall be deemed to
have been granted to the applicant on the expiry
of the said period of three months.
(5) If any person carries on any development
work or retains the use of any building or work
or continues the use of land in contravention of
the provisions of section 27 or section 28 or of
any permission granted under sub-section (1) of
this section, the appropriate authority may direct
such person, by notice in writing, to stop
further progress of such work or to discontinue
any such use and may, after making an inquiry
in the prescribed manner, remove or pull down
any building or work carried out and restore the
land to its original condition or, as the case may
be, take any measures to stop such use.
(6)Any expenses incurred by the appropriate
authority under sub-section (5) shall be a sum
due to the appropriate authority under this Act
from the person in default.”
8.1 Therefore under Section 29 of the TP Act, 1976, the
authority is duty bound to decide the application seeking
development permission, either accepting it or rejecting it,
within the time prescribed. Further, there is no provision
under which the application is declined to be decided, or can
be put in abeyance.
8.2 Moreover, Section 65(4) of the TP Act, 1976 provides for
power of Government to sanction or refuse to sanction, the
scheme and the effect of such sanction wherein Sub Section 4
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reads as under: –
“Section 65:- XXXX
(4) The appropriate authority shall, after the
preliminary scheme is sanctioned by the State
Government under sub-section (2), complete the
execution of such scheme within a period of two
years from the date of the sanction of such
scheme, failing which the State Government may
take such actions against appropriate authority
as it deems fit.”
Therefore, the corporation being implementing authority
is duty bound to implement the preliminary scheme once
sanctioned by the State Government.
9. Now in relation to the ground taken into consideration
by passing the order dated 01.04.2025 it is noticed that the
authority considered the pendency of Special Civil Application
No. 1944 of 2024 wherein status quo has been granted by this
Court. However, in the opinion of this Court, if the
development permission is sought excluding the disputed land
for which the Special Civil Application No. 1944 of 2024 is
pending then it would not cause any prejudice to the
petitioners of SCA 1944 of 2024.
10. Moreover, in the decisions of Chairman, Indore Vikas
Pradhikaran v.s Pune Industrial Coke & Chemicals Ltd.
reported in (2007) 8 SCC 705, it is held as under: –
56. Property, while ceasing to be a fundamental
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right would, however, be given express
recognition as a legal right, provisions being
made that no person shall be deprived of his
property save in accordance with law.
Interpretation of the Act :
57. The Act being regulatory in nature as by
reason thereof the right of an owner of property
to use and develop stands restricted, requires
strict construction. An owner of land ordinarily
would be entitled to use or develop the same for
any purpose unless there exists certain regulation
in a statute or a statutory rule. Regulations
contained in such statute must be interpreted in
such a manner so as to least interfere with the
right of property of the owner of such land.
Restrictions are made in larger public interest.
Such restrictions, indisputably must be
reasonable one. [See Balram Kumwat v. Union of
India & Ors. (2003) 7 SCC 628; Krishi Utpadan
Mandi Samiti & Ors. v. Pilibhit Pantnagar Beej
Ltd. & Anr. (2004) 1 SCC 391; and Union of
India & Ors. v. West Coast Paper Mills Ltd. &
Anr. (2004) 2 SCC 747]. The statutory scheme
contemplates that a person and owner of land
should not ordinarily be deprived from the user
thereof by way of reservation or designation.”
11. In the decision of T. Vijayalakshmi and Others v.s Town
Planning Member and Another reported in (2006) 8 SCC 502,
the Hon’ble Supreme Court in relation to right to develop the
property has held as under: –
“13. Town Planning Legislations are regulatory
in nature. The right to property of a person
would include a right to construct a building.
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Such a right, however, can be restricted by
reason of a legislation. In terms of the
provisions of the Karnataka Town and Country
Planning Act, a comprehensive development plan
was prepared. It indisputably is still in force.
Whether the amendments to the said
comprehensive development plan as proposed by
the Authority would ultimately be accepted by
the State or not is uncertain. It is yet to
apply its mind. Amendments to a development
plan must conform to the provisions of the Act.
As noticed hereinbefore, the State has called for
objection from the citizens. Ecological balance
no doubt is required to be maintained and the
courts while interpreting a statute should bestow
serious consideration in this behalf, but
ecological aspects, it is trite, is ordinarily a part
of the town planning legislation. If in the
legislation itself or in the statute governing the
field, ecological aspects have not been taken
into consideration keeping in view the future
need, the State and the Authority must take the
blame therefor. We must assume that these
aspects of the matter were taken into
consideration by the Authority and the State.
But the rights of the parties cannot be
intermeddled so long as an appropriate
amendment in the legislation is not brought
into force.
14. Nobody questioned the validity of the
existing law. The High Court has not held that
the existing laws are ultra vires. It merely
proceeded on the assumption that the law
which may be brought into the state book would
be more eco-friendly.
15. The law in this behalf is explicit. Right
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of a person to construct residential houses in
the residential area is a valuable right. The said
right can only be regulated in terms of a
regulatory statute but unless there exists a clear
provision the same cannot be taken away. It is
also a trite law that the building plans are
required to be dealt with in terms of the existing
law. Determination of such a question cannot
be postponed far less taken away. Doctrine of
Legitimate Expectation in a case of this nature
would have a role to play.”
12. In the decision of Ganesh Sahakari Grahak Mandli Ltd.
v.s Collector decided by this Court on 06.12.1999 in Special
Civil Application No. 8114 of 1999, this Court in relation to
grant of non-agricultural use permission as held as under:-
“Looking to the undisputed facts stated
hereinabove, it appears that the concerned
authority has erred in law by rejecting the
application dated 12.8.99 submitted by the
petitioner for converting the land in question
into non-agricultural land.
In the circumstances, the impugned order dated
1/4.10.1999 is quashed and set aside and
respondent No. 1 is directed to consider the
application dated 12.8.99 submitted by the
petitioner afresh without considering the fact
with regard to pendency of the civil suit
referred to hereinabove.”
13. Moreover, the statement made on behalf of the petition
as also averred in the petition that the petitioners are ready to
file an undertaking before the concern authority that if Surat
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Municipal Corporation considers the application of the
petitioners seeking development permission subject to outcome
of Special Civil Application No. 1944 of 2024, they do not
have any objection.
14. In view of aforestated reasons, following order is passed:-
14.1 The order dated 01.04.2025 is quashed and set aside.
14.2 The petitioners are directed to file an undertaking before
respondent – Corporation that they do not have any objections
if the Surat Municipal Corporation considers the application
seeking development permission subject to outcome of Special
Civil Application No. 1944 of 2024.
14.3 Once such undertaking is filed application of the
petitioners dated 16.02.2024 seeking development permission
(excluding the disputed land having 95.41 sq. meters) shall be
decided as expeditiously as possible in accordance with law.
15. This Court has not gone into the merits of the application
seeking development permission.
16. With the above directions, present petition is allowed to
the aforesaid extent. Rule is made absoluteDirect service is permitted.
sd/-
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
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