GORDHANBHAI KAHANDAS DALWADI Vs. ANAND MUNICIPALITY ANAND

JUDGEMENT

(1.) The petitioner herein has prayed that the permission granted by the Anand Municipality to respondents Nos. 4 to 12 to put up a structure on Final Plot No. 127/1 of Town Planning Scheme No. 1 of Anand Town should be quashed or revoked and the petitioner has also prayed that the final Town Planning Scheme No. 1 of Anand Municipality should be quashed and set aside in so far as it concerns Final Plot No. 127 and the concession granted in respect of Final Plot No. 127/1 and the extinguishment of the right of way purchashed by the petitioner for value under a sale deed should be done away with and the Town Planning Officer should be directed to award compensation to the petitioner for the loss of that right of way. The petitioner has further prayed that the decision given by the Town Planning Officer which is Annexure D to the petition in so far as it pertains to the land of the petitioner should be quashed and set aside.

(2.) The petitioner is at present the owner of a plot of land which bears Final Plot No. 126/1 in Town Planning Scheme No. 1 of Anand Municipality. This plot admeasures 489 square yards and the plot was purchased by the petitioner on January 19 1962 for a sum of Rs. 16 342 On this land the petitioner has put up a residential bungalow but the construction was complete before the Municipality declared its intention regarding the Town Planning Scheme in question. On June 12 1964 the Municipality passed a resolution declaring its intention for preparing a Town Planning Scheme covering the area in which this land of the petitioner and the bungalow thereon are situated. On January 7 1966 a draft Scheme was prepared and published by the Municipal authorities. The draft scheme was sanctioned by the Government on September 19 1966 and as a consequential measure the Town Planning Officer was appointed in connection with this scheme on September 30 1966 On February 28 1969 the Town Planning Officer gave his decisions under the Bombay Town Planning Act 1954 (herein after referred to as the Act) regarding the reconstituted plot. Petitioners plot number 126/1 is immediately to the East of Final Plot No. 127/1 which belongs to respondents Nos. 4 to 12 herein. It may be mentioned that Final Plot No. 127/1 admeasurring 187.03 square meters is a part of the Final Plot No. 127. As a result of the Town Planning Scheme as finally published a Town Planning Scheme road 30 feet wide and running roughly North-South is laid out through Final Plot No. 127. At the stage of the draft scheme it was proposed that the land which has now gone to form Final Plot No. 127/1 should be allocated to Final Plot No. 126/1 as reconstituted. However at the time of the finalisation of the Scheme by the Town Planning Officer this type of reconstitution was not done and the land of Final Plot No. 126/1 remained as it was and Final Plot No. 127/1 remained with the original owners of Final Plot No. 127 namely respondents Nos. 4 to 12 The petitioner says that in order to have access for his Final Plot No. 126/1 he had purchased a permanent right of way over 12 feet strip of land touching the Southern boundary of the petitioners plot and this right of way was to the East of Final Plot No. 126/1. Under the Final Town Planning Scheme as published by the Government no compensation is being awarded to the petitioner for the loss of this right of way. However a 12 feet wide road running towards West and from the southern boundary of the plot of the petitioner has been provided and the petitioner has access to the newly laid 30 feet wide Town Planning Scheme road along this 12 feet wide road. The petitioner further states that respondents Nos. 4 to 12 have been granted permission by the Municipal authorities of Anand Municipality to build on Final Plot No. 127/1 without leaving any margins and the permission has been granted to put up a residential house and the commencement certificate as shown by Annexure G to the petition has been issued by the Chairman of the Town Planning Committee of Anand Municipality. According to the petitioner the concession which has been granted to respondents Nos. 4 to 12 regarding this plot of Final Plot No. 127/1 is in contravention of the regulations which were issued by the Anand Municipality when the development plan of Anand Town was prepared. It is the contention of the petitioner that the Town Planning Scheme as finalised by the Town Planning Officer and as accepted by the Government and finally published was not framed in accordance with the regulations which formed part of the development plan and did not conform to those regulations. Under the regulations the minimum size of a building unit was required to be 500 square meters so far as a domestic building was concerned and that was the minimum area of building unit for a domestic building and it was obligatory upon the Town Planning Officer so to prepare the Town Planning Scheme that no building unit for a domestic building was less than 500 square meters. Moreover at the time of granting permission to put up residential building on Final Plot No. 127/1 it was obligatory on the Municipal authorities to see that the margins proscribed by these Regulations which formed part of the development plan should have been observed. Yet the permission was granted by the Municipal authorities permitting respondents Nos. 4 to 12 to put up a building over 100 per cent of the area of Final Plot No. 127/1 and that is why the petitioner has challenged that permission granted by the Municipal authorities. These are the contentions of the petitioner.

(3.) In order to appreciate the contentions raised by Mr. Patel on behalf of the petitioner herein it will be necessary to refer to some of the provisions of the Act. Chapter II of the Act deals with Development Plan and under sec. 3 sub-sec. (1) of the Act as soon as may be after the coming into force of the Act subject however to the provisions of the Act every local authority shall carry out a survey of the area within its jurisdiction and shall not later than four years from the date on which the Act comes into force prepare and publish in the prescribed manner a development plan and submit it to the State Government for sanction. It may be pointed out that the State Government has the power to extend the time limit of four years laid down in sec. 3(1) for the preparation of the development plan. The development plan for Anand Town was prepared and finalised on May 18 1967 and Regulations called the Anand Town Development Regulations 1966 formed part of that Development plan. Under sec. 7 a development plan shall generally indicate the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated. In particular the development plan has to contain proposals designating the use of the land for purposes such as residential industrial commercial and agricultural. Under sec. 8 the particulars which are required to be published and submitted to the State Government along with the development plan are mentioned under clause (iii) of sec. 8 regulations enforcing the provisions of the development plan explaining the manner in which necessary permission for developing any land can be obtained from the local authority have to be submitted to the State Government along with the plan. Under sec. 10 of the Act on receipt of the development plan under sec. 8 the State Government may after consulting the Consulting Surveyor and within the prescribed period sanction the development plan and the regulations as so received unless any modifications therein are considered to be necessary by the State Government. Under clause (d) of sec. 10(1) the sanction accorded by the State Government either under clause (a) or under clause (c) is to be notified in the Official Gazette and the development plan together with the regulations so sanctioned is to be called the final development plan. As pointed out above the final development plan was sanctioned by the State Government on May is 1967 and it came into force with effect from July 1 1967 Sec. 10A provides for variation of the development plan and if the State Government is of opinion either on a proposal from the local authority in that behalf or otherwise that it is necessary in the public interest to make any variation in the final development plan whether sanctioned before or after the commencement of the Bombay Town Planning (Gujarat Amendment) Act 1965 it shall publish in the Official Gazette the variations proposed in the development plan and the amendments if any in the regulations. It may be pointed out that so far as the main challenge of the petitioner is concerned it is on the ground of the regulations framed as part of the final development plan for Anand. Under sec. 12 of the Act restrictionS have been set out on development work after publication of the declaration of intention of the local authority for the formulation of a development plan for the area within the jurisdiction of that local authority and under sec. 12 on or after the date on which a declaration of intention to prepare a development plan is published under sub-sec. (1) of sec. 4 in respect of any area no person shall carry on any development work in any building or in or over any land within the limits of the said area without the permission of the local authority which shall be contained in a commencement certificate granted by the local authority in the form prescribed and Annexure G which has been challenged in this particular ease is the commencement certificate granted by Anand Municipality on January 20 1970 to the respondents Nos. 4 to 12.