Gujarat High Court
Natubhai Manilal Patel vs State Of Gujarat on 30 January, 2025
NEUTRAL CITATION
C/SCA/14327/2023 ORDER DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14327 of 2023
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NATUBHAI MANILAL PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KARTIKKUMAR K JOSHI(8042) for the petitioners(s) No. 1,2,3,4,5,6,7
MR. SUMIT V CHAUDHARI(9388) for the petitioners(s) No. 1,2,3,4,5,6,7
MR AAKASH GUPTA AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MR BJ TRIVEDI(921) for the Respondent(s) No. 5
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,4
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 30/01/2025
ORAL ORDER
1. This petition is filed seeking to quash and set aside the
order dated 24.03.2023 of respondent no. 4 – Estate officer of
Ahmedabad Municipal Corporation, whereby the application of
the petitioners’ proposing variation in Final Town Planning
Scheme No.3 of Odhav Ahmedabad, has been rejected. It is
also prayed that Ahmedabad Municipal Corporation may be
directed to send proposal for variation of Town Planning
Scheme-3 Odhav Ahmedabad to the State Government.
2. Facts in brief as referred in the petition are stated
hereunder:
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2.1. The petitioners herein are in occupation of part of the
land bearing original plot No.18 in Town Planning Scheme
No.3 of Odhav, Ahmedabad. (Hereinafter referred as “subject
property”).
2.2. This is second round of litigation. Earlier several petitions
were filed by the petitioners’ challenging notices issued by
respondent- corporation under section 67 and 68 read with
rule 33 of the Gujarat Town Planning and Urban Development
Act (T.P. Act for short). It was grievance of the petitioners in
that petition (earlier) that since they are in occupation of
subject land for many years and they being the rightful owner,
entitled for allotment of final plot in their favour.
2.3. Upon finalization of scheme, Special Civil Application
No.4032 of 2014 was filed by the respondent No.5 herein,
seeking implementation of scheme whereas other petitions i.e.
Special Civil Application Nos. 14454 of 2016, 14469 of 2016
and allied matters were filed by the petitioners herein, seeking
variation in the scheme. The captioned Special Civil
Application No. 14454 of 2016 and other matters were decided
by respective orders dated 25.11.2022, wherein this Court
permitted the present petitioners to approach respondent
authority by way of appropriate representation/application
along with relevant documents and the Special CivilPage 2 of 22
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Application No.4032 of 2014 of the respondent No.5 also came
to be disposed of directing to approach the respondent
authority by way of appropriate representation/applications
along with relevant documents. The petitioners had challenged
the aforesaid orders by filing Letters Patent Appeal No.487 of
2023 and allied matters, wherein the Letters Patent Appeal
were not entertained by order dated 21.06.2023. The
petitioners had also made application seeking variation and the
same was rejected by order dated 24.03.2023, aggrieved by
which, present petition is filed.
2.4. In the meantime, respondent-corporation initiated
proceedings and after providing opportunity of hearing to the
petitioners, cancelled the earlier order regularizing
unauthorized construction, by an order dated 26.10.2017. The
petitioners herein, had also challenged the order dated
26.10.2017, of cancellation of GRUDA proceedings by filing
Special Civil Application No.20420 of 20218 and allied matters.
That proceedings were assailed in Letters Patent Appeal No.
832 of 2023, wherein this Court had not entertained the
Letters Patent Appeal by order dated 12.07.2023.
3. Heard learned advocate Mr.Nilesh Pandya with learned
advocate Mr.Kartik Kumar Joshi for the petitioners, learned
Asst. Government Pleader Mr.Aakash Gupta for respondent
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No.1, learned advocate Mr. Deep Vyas for respondent Nos.2, 3
and 4 (Ahmedabad Municipal Corporation) and learned
advocate Mr. Brijesh Trivedi for respondent No.5 (private
respondent).
4. Learned advocate Mr. Pandya with learned advocate Mr.
Joshi for the petitioners submitted that the order dated
24.03.2023 is erroneous on following grounds:
(i) That the petitioners are in possession of the subject
property since many years, either by way of general power of
attorney holder or notarized agreement to sale executed in
their favour.
(ii) Pursuant to the directions of this Court under order dated
25.11.2022 in Special Civil Application No.14454 of 2016 with
other allied matters, the petitioners herein were permitted to
approach respondent – Corporation by way of appropriate
representations/ applications along with relevant documents for
consideration of final plot in their favour by way of variation
in Final Town Planning Scheme No.3 (Odhav), Ahmedabad.
Special Civil Application No.4032 of 2014, was also part of
above order dated 25.11.2025. Accordingly, the petitioners
preferred appropriate application/representation dated
05.01.2023. Despite that, the impugned order dated
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24.03.2024 was passed ignoring the documents relied upon by
the petitioners.
(iii) Further, in the representation dated 05.11.2023, it was
case of the petitioners that they are in possession of the
subject land since many years by way agreement to sale in
their favour. Learned Advocate in support relied upon
agreements to sale placed on record. In few cases there exist
the power of attorney in favour of the petitioners. All these
documents were ignored and therefore the order dated
24.03.2023 is erroneous. Further, the Corporation is not
competent to decide title of the property which has been done
in this case and therefore, the order dated 24.03.2023 being
illegal deserves to be quashed and set aside.
(iv) The petitioners have further contended that, on the
subject property there exist a construction since many years.
The petitioners therefore made application seeking
regularization of un-authorized construction. The said
application was originally allowed and subsequently cancelled
by an order dated 26.10.2017, without any cogent reason and
therefore order dated 26.10.2017 and all consequential actions
deserves to be quashed and set aside.
(v) Further, from the order dated 24.03.2023, it is evident
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that the application of the petitioners’ seeking variation was
rejected considering the title of the subject land. Since the
respondent Municipal Corporation is not competent to decide
title of the subject property, the order dated 24.03.2023
deserves to be quashed and set aside.
(vi) Learned advocate further submitted that in relation to un-
authorized construction as alleged by Municipal Corporation,
the petitioners had preferred application seeking regularization
of un-authorized construction under GRUDA 2022 and along
with the application, various documents were placed on record
justifying title of the subject property. Further, against the
rejection of the application seeking regularization under
GRUDA Act, 2022, the appeal is provided under the provisions
of the Act. Therefore, also order dated 24.03.2023 based non-
application of mind deserves to be quashed and set aside.
4.1. Learned advocate, thus, submitted that the present
petition deserves to be allowed by quashing and setting aside
the order dated 24.03.2023.
5. Above submissions were strenuously opposed by learned
advocate Mr.Deep Vyas, for the respondent – Corporation.
Inviting attention of this Court to the order dated 8.11.2023,
learned advocate submitted that this Court by detailed order,
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recording all the facts, had rejected the request seeking interim
relief.
(i) Further, following chronology may be considered to
appreciate procedure followed before finalization of Town
Planning Scheme No.3 Odhav Ahmedabad.
Sr.No. Date Particulars
1. 23.12.1976 Declaration of intention of TP scheme
u/s.41 of TP Act.
2. 03.05.1976 Owners meeting was held on 03.05.1976
3. 27.09.1981 State Government sanction of the draft
scheme u/s. 48(2) of TP Act.
4. 08.09.1981 State Government had appointed Town
Planning Officer (TPO) u/s.50(1) of TP Act
5. 18.03.1993 The TPO has prepared the scheme by
following procedure u/s.52 r/w. Rule 26
and upon following the prescribed
procedure, published its decision u/s.52(1)
and submitted the scheme to the State
Government.
6. 02.09.1994 State Government sanctioned the
Preliminary TP Scheme by notification
dated 02.09.1994
7. 04.02.1999 State Government sanctioned the Final TP
Scheme by notification dated 04.02.1999
(ii) Further under the sanctioned scheme with respect to land
bearing Survey No.93/4, the same was represented as Original
Plot No.14/2 and the owner was allotted Final Plot No.19.
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(iii) After allotment of final plot, respondent no.5 claiming to
be owner of Final Plot No. 19, filed Special Civil Application
No.4032 of 2014, wherein this court by order dated
25.11.2022, directed respondent-corporation to implement
scheme by evicting unauthorized occupants of Final Plot No.19
or vary the T P Scheme qua Final Plot No.21, by providing
opportunity to the petitioners.
(iv) The petitioners herein had also filed two set of
proceedings:
(a) under Town Planning Act:
Special Civil Application No.14454 of 2016, Special Civil
Application No.14469 of 2016 and allied matter were filed,
challenging the notice dated 20.08.2016 under Section 68 r/w.
Rule 33 and for allotment of the reconstituted plots, held by
them. The said petitions, were disposed of by reasoned order
dated 25.11.2022, holding that the petitioners being
encroachers have no legal title for the land in question. It was
also held that the documents relied upon were notarized
agreement to sale and therefore their prayer for grant of
reconstituted plot, cannot be considered. However, while
disposing of the petition, a liberty was granted to make an
application for variation. The variation application was directed
to be decided in accordance with law and such decision was toPage 8 of 22
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be communicated to the petitioners. These proceedings were
assailed in Letters Patent Appeal No.487 of 2023 and this
Court disposed of the appeal on 21.06.2023.
(b) Under GRUDA proceedings:
Special Civil Application No.20420 of 2018 and allied matters,
were also filed challenging the order dated 26.10.2017. By
order dated 26.10.2017, the earlier order granting
regularization of unauthorized construction was cancelled.
These proceedings were assailed in Letters Patent Appeal
No.832 of 2023, and this court disposed of appeal on
12.07.2023, with following directions:
“5. In view of the above scenario obtaining, the present
Letters Patent Appeal is disposed of with following
directions and observations.
(i) The grievance of the petitioner raised in the instant
petition, dealt with by learned Single Judge and now
subject matter of this Letters Patent Appeal that the
procedure under the GUDA has not been followed while
rejecting the request for regularisation, is permitted to be
agitated when the petitioner may file challenge to the
order dated 24.3.2023. However this Court does not
express any opinion in this regard.
(ii) The remedy of appeal under Section 12 of the GUDA
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Act, which is available to the petitioner, may also be
availed by the petitioner, if advised.
(iii) It will be also open for the petitioner to make
representation as per the directions of learned Single Judge
and avail the said right in accordance with law.
6. Observing that either of the above course may be
adopted by the petitioner to ventilate his grievance, for
otherwise, the Court does not find any merit in the
challenge to the order of learned Single Judge.”
(v) Accordingly, after carrying out necessary variation and
scrutinizing the record of GURDA, notice dated 29.09.2016 was
issued to the petitioners requesting them to produce original
documents of GRUDA application along with all documents
submitted therein with sanctioned maps. It was also indicated
that if they fail to produce details called for appropriate action
shall be taken.
(vi) The petitioners responded to the notices by
communication dated 04.10.2016 without producing original
documents. A notice was also issued to Engineer and
concerned officers of the Corporation and in response they
denied their signatures on GRUDA application and the
documents submitted therein. Therefore, another notice dated
16.11.2016 was served asking the parties to remain present
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with original documents along with concerned Engineer. The
said notice was served through RPAD. Thereafter order dated
25.11.20216 was passed rejecting the respective GRUDA
certificates serving these orders to concerned petitioners by
registered AD post. The above order was subject matter of
challenge by filing Special Civil Application No.19981 to 19985
of 2015 where the petitioners were directed to provide
opportunity of hearing and the same was provided by fixing
the hearing on 28.07.2017.
(vii) Thus, after hearing the petitioners, an order dated
26.10.2017, was passed by Corporation cancelling earlier
permission GRUDA application on the ground of forged
document and forged declaration in filing GRUDA application.
It was also observed that in view of section 11(2) of GRUDA,
the proceedings do not confer any entitlement on ownership of
occupation. The order dated 26.10.2017 of GRUDA is
challenged and placed on record of Special Civil Application
No.16628 of 2004 at page 27/A. The aforesaid GRUDA order
dated 26.10.2017 passed by Corporation, was challenged in
GRUDA appeal, which was not entertained by an order
14.03.2024. Against order dated 14.03.2024, the petitioners
filed Special Civil Application No.16628 of 2024 and allied
matters.
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(viii) For grievance of the petitioners seeking variation in the
town planning Scheme No.3 Odhav Ahmedabad, in view of
direction to the Corporation to consider the variation, the
Corporation after considering the submissions, rejected the
variation application filed by the petitioners on following
grounds (a) Town Planning Scheme was sanctioned and all
procedures were properly followed as per the act. (b) On
sanctioning of the scheme, the same becomes part of the act
and as per Section 67(a) the land would vest free from all
encumbrances and rights determined by the town planning
officer with respect to final plot, becomes final and binding
between the parties and in view of sanctioned the scheme, the
petitioners were not having right, title or interest over the land
in question. (c) The rights of the petitioners were not even
accrued and born on the declaration of the intention of the
town planning scheme. (d)Therefore, in absence of any right
available to the petitioners, there is no error, irregularity or
informality having found by the authority, in the TP scheme,
the application of variation was dismissed.
(ix) Further, as can be seen from the directions in LPA, the
petitioners were given an option to pursue either of the
options and therefore, also there cannot be two simultaneous
proceeding, once having pursed with the variation application
and the same been rejected. Even otherwise also the authority
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invoking inherent powers had cancelled the GURDA, which
was based upon the petitioners forged document and
declaration. Therefore, this petition deserves dismissal.
6. Learned advocate Mr. Vyas in support of his submissions
relied upon the following decisions:
(i) Municipal Corporation for Greater Bombay vs. Advance
Builders (India) Pvt. Ltd. reported in AIR 1972 SC 739 to
submit that once the scheme is sanctioned, it is bounded duty
of the appropriate authority to implement the scheme in the
same manner as sanctioned.
(ii) Kashiben wd./o Pitambar Devchand and Another Vs State
of Gujarat reported in 1989 (2) GLR 1176 to submit that once
final scheme is prepared, it must be deemed to be a part of
the act. The owner loses all rights over the land and liable to
be evicted, in accordance with law.
(iii) Varahi Co-operative Housing Society Vs State of Gujarat
reported in 2019 (2) GLR 1088 to submit that Petition filed
almost 4 years after issuance of the Notification, suffers from
the vice of delay and laches and is fatal. The final scheme was
sanctioned by State Government in exercise of powers
conferred u/s. 65 of the Act and now final scheme has become
part of the Act. Therefore, the petitioner or its members hadPage 13 of 22
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ceased to have any right over the said plots.
7. Supporting the submissions made by learned advocate
Mr.Deep Vyas, learned advocate Mr.B.J.Trivedi for respondent
No.5 submitted that pursuant to finalization of Town Planning
Scheme in the year 1999, respondent No.5 was given Final
Plot No.19. Therefore, respondent no.5 preferred Special Civil
Application No.4032 of 2014, seeking implementation of the
Town Planning Scheme, whereas petitioners preferred SCA
14454 of 2016 and other allied petitions challenging the
direction to hand over the peaceful and vacant possession. The
said petitions were disposed of by permitting the petitioners to
file application seeking variation and the same has been
rejected by reasoned order dated 24.03.2023.
7.1. Further, the petitioners’ application seeking regularization
under GRUDA was rightly rejected by an order dated
26.10.2017 on the ground that the documents produced seeking
GRUDA permission were forged. The Special Civil Application
No.20420 of 2018 filed challenging order dated 26.10.2017 was
also rejected.
7.2. Further, out of 8 petitioners herein, 5 had preferred suit
before City Civil Court claiming adverse possession and
declaration of permanent injunction and the same has been
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rejected by the City Civil Court under order dated 30.12.2023.
7.3 The City Civil Court also ordered payment of cost of
Rs.15,000/-. There is no challenge to the order dated
30.12.2023 and the cost ordered was also not paid. Thus,
learned advocate Mr.Trivedi submitted that the entire petition
being misconceived, the petition deserves to be dismissed.
8. Considered the submissions and the documents on record.
Revisitation of facts indicate that this petition is filed seeking
to quash and set aside the order dated 24.03.2023 passed by
respondent – Corporation wherein after consideration of
objections raised by the stake holders including the petitioners
herein, the Corporation recorded that pursuant to finalizations
of Town Planning Scheme No.43 (Odhav-3), the subject land
vest with the Municipal Corporation. Pursuant to finalization of
scheme and the subject land having being vested with the
Municipal Corporation it is the original owners were allotted
final plot Nos.18, 19, 21 and 24. From the order dated
24.03.2023, it is evident that the procedure contemplated
under the provisions of the Act, before finalization of
preliminary town planning scheme, has been followed which
has been referred in the tabular form in the order dated
24.03.2023 as also in the submissions made on behalf of
Learned Advocate for respondent corporation and recorded in
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this judgment. Therefore, once the scheme has been finalized
and notified, it has become the part of the Act and, therefore,
the only remedy available to the petitioners is to seek variation
and the same has been considered in the order dated
24.03.2023.
9. In relation to contention raised by the petitioners that
they are in occupation of the subject land since many years, it
is noticed that in the earlier round of litigation in Special
Civil Application No.14454 of 2016, this Court has directed as
under:
“6. I have heard the learned advocates for the respective
parties. I have also considered the material on record. The
picture which has emerged before this Court is as under.
6.1 It is an undisputed fact that the petitioners are not the
legally title holders of the land which they possess. They
are in possession of the land in question through the
agreement to sell only since many years.
6.2 The regularisation of the unauthorised construction,
which is claimed by the petitioners, under the GRUDA Act
(Impact), has been cancelled by the Authorities, which is
also an undisputed fact. In view of Section 11 of the
Gujarat Regularisation of Unauthorised Development Act,
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decided the ownership of the unauthorised development.
There is also a provision for appeal under Section 12 of the
Act, which the petitioners did not avail and thus, the
cancellation order has attained finality.
6.3 It is noted that the draft Town Planning Scheme No.3
(Odhav), Ahmedabad was sanctioned on 29.07.1981 and the
Preliminary Town Planning Scheme was sanctioned on
03.10.1994. In the said T.P.Scheme, Survey No.93/4 was
given O.P. No.14/2 and F.P. No.19, whereas Survey
Nos.93/1+5, 98, 99 and 102 were given O.P. No.18 and
F.P. Nos.18, 21 and 24. As submitted by the petitioners, the
Final Plot No.21 is carved out from Survey No.93/4. The
ownership of Survey No.93/4 is of the persons other than
the petitioners, which is also an undisputed fact.
6.4 The judgments cited by the learned advocate for the
petitioners are not applicable to the facts of these cases as
the petitioners are not having valid and proper documents
of the title.
6.5 Since the petitioners have no legal title in the land in
question, the petitioners may be treated as encroachers,
though they are in possession over the land in question
from many years. The documents on which they rely is a
notarised agreement to sell and not the registered one also.
Therefore, this Court finds that no prayer need to be
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granted to the petitioners by exercising the jurisdiction
under Article 226 of the Constitution of India.”
10. Therefore, in view of the order dated 25.11.2022 passed
in Special Civil Application No.14454 of 2016 the petitioners’
contention that they are owners of subject land is not correct
and does not require further consideration.
11. Further, the contention raised in present proceedings with
regard to application preferred under the provisions of GRUDA
is of no consequence because, it has been clearly held by this
Court while rejecting the interim relief vide order dated
08.11.2023 in this petition, that earlier the GRUDA Application
was preferred under forged documents, which is evident from
the observation that the signature of the officer found in map
was not found to be genuine signature and no such signature
was made by the concerned officer at the relevant time.
Further the reliance placed by the petitioners on the certificate
or the application, under provisions of GRUDA would not
make the title of the property in favour of the present
petitioners. Most importantly, when the suit was preferred by
the petitioners seeking adverse possession, the City Civil Court
under order dated 30.12.2023 has held as under:
“8. Now, to conclude this discussion, the plaintiff has no
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locus to file this suit on the basis of defective title. The
plaintiff cannot claim plea of adverse possession mixing
with plea of ownership/permissive possession by clever
drafting. No cause of action arises for the plaintiff to file
this suit against the present defendant Nos.1 to 6.
Further, in prayer clause, no specific prayer has been
asked against the defendant No.7 AMC. In addition, the
cause of action for the defendant- AMC was arise from
the Notice issued Under Section 68 read with Rule 33 of
The Gujarat Town Planning and Urban Development Act.
This notice was challenged by the plaintiff before Hon’ble
High Court of Gujarat in SCA No.14474/2016 and it had
been decided against the plaintiff. Therefore, the plaintiff
has no cause of action to challenge the said notice.
Therefore, the present suit deserves to be dismissed
under O. 7 R. 11(a) as it is filed without any cause of
action. The plaintiff is also liable to pay reasonable cost
to the defendant No.1 to 6, for filing such a frivolous suit
against them. In the light of above discussion, in the
interest of the justice, I pass the following final order
below this application: –
-ORDER-
A. The present chamber summons preferred at Exhibits 28
and 29, are hereby allowed and accordingly the plaint is
hereby rejected in terms of Order VII Rule 11(a) of the
Code of Civil Procedure.
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B. The plaintiff is hereby ordered to pay Rs.15,000/-
(Rupees Fifteen Thousand only) towards the special cost
jointly, to the defendants Nos.1 to 6.
C. Order below Exh.1 accordingly.”
12. Therefore, in view of findings recorded in the earlier
round of litigation as also as recorded by the City Civil Court
under dated 30.12.2023 that the petitioners have no legal title
over the said property, the directions to quash and set aside
the order dated 24.03.2023 passed by respondent – Corporation
cannot be accepted. Further in this case, it cannot be ignored
that upon finalization of the scheme, it has become part of the
Act and the proposal for variation has also been rejected by an
order dated 24.03.2023.
13. Now taking contention of the petitioners that the
respondent – Corporation cannot decide the title of the
property and the has been done in the order dated 24.03.2023,
this Court is of the opinion that the Corporation in the order
dated 24.03.2023 has taken note of the fact that pursuant to
the sanctioning of the scheme under Section 65 of the Gujarat
Town Planning Act, the land vest with the authority free from
all encumbrances. Thereafter pursuant to the finalization of
scheme under Section 67(1) read with Section 67(2) of the Act
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once the scheme is finalized, all the rights determined by
Town Planning Officer has become final and the land vest free
from all encumbrances to the Corporation. Therefore, the
petitioners could not have any right in the subject property
and there is no error, irregularity or informality in finalization
of TP scheme. In relation to the contention that therefore, the
petitioners have preferred variation application, it is noticed
that upon finalization of the town planning scheme, the
original owners have been allotted the final plot against their
original plot. This aspect has been again supported by the
order passed in Special Civil Application No.4032 of 2014.
Special Civil Application No.4032 of 2014 was filed by
respondent No.5 herein who is allottee of final plot No.19.
This Court in the said order has rejected the petitions filed by
petitioners herein who had challenged the town planning
scheme. Thus, once the title of the property is vested with
respondent No.5 and the same has been considered by this
Court, as stated herein above, the contention of the petitioners
that the Municipal Corporation cannot decide the title which
has been done in the order dated 24.03.2024, does not merit
acceptance.
14. In the order dated 24.03.2023, the Corporation has stated
that upon finalization of town planning scheme, the original
owner has been allotted final plot against their original plot
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NEUTRAL CITATION
C/SCA/14327/2023 ORDER DATED: 30/01/2025
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and all final plot holders have been directed to take peaceful
and vacant possession. Therefore, upon allotment of final plot
number in their favour they are entitled for the said plot and
the present petitioners having no title in the subject land, their
application seeking variation in the scheme cannot be
considered. In view of these clear findings record in the order
dated 24.03.2023 as supported by the order dated 25.11.2022
in Special Civil Application No.4032 of 2014, , I do not find
any error in the order.
15. In view of above, the petitioners have failed to point out
any error, irregularity or infirmity for making proposal for
variation in the sanctioned Town Planning Scheme under
Section 70 of the Gujarat Town Planning Act. Further, though
the petitioners were acquaintance of the earlier proceedings,
they preferred this petition at belated stage and, moreover, the
petitioners failed in pointing out any error. Therefore, prayer
in present petition to quash and set aside the order dated
24.03.2023 passed by Ahmedabad Municipal Corporation is
hereby rejected.
(MAUNA M. BHATT,J)
NAIR SMITA V./14
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