KIRITCHNADRA DHIRENDRAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) UNA Nagar Panchayat, in exercise of powers conferred on it under Section 22(1) of the Bombay Town Planning Act, 1954 (for brevity 'the Act') passed Resolution No. 235 dated 10th December, 1970, declaring its intention to make Town Planning Scheme (No. 2), in respect of lands bearing revenue Survey Nos. 537/1, 537/2, 537/3, 537/4 along with other lands. The relevant records were forwarded to the State Government. Copy of the plan and the details thereof were also made available and open for public inspection at Head Office of the local authority, as provided under Section 22(4) of the Act. Later after completing necessary formalities, Nagar Panchayat, in exercise of powers conferred under Section 23 of the Act, finalised draft Town Planning Scheme No. 2, and it was accordingly published in the Gujarat Government Gazette, Part -II on 1st June, 1972. Government, in exercise of powers conferred under Section 23 of the Act sanctioned the draft Town Planning Scheme, vide its resolution dated 17th October, 1973, which was also published in the Government Gazette, Part IV dated 15th November, 1973. Later the draft Scheme was forwarded to the Government for finalisation and the Government, in exercise of powers conferred under Section 28(2) of the Act, finalised the draft Scheme, which was published in the Official Gazette vide Notification dated 2nd September, 1976.

(2.) THE final plot No. 185 falling under Survey Nos. 537/1 and 537/2, of the Town Planning Scheme No. 2, Una Town is the subject -matter of the present dispute. Above mentioned plot was reserved under the Scheme for development of town centre of the Nagarpalika. Land covered under Survey Nos. 537/1 and 537/2 originally belonged to late Dharamshi Narandas. Later, ownership vested on his descendants Chhotalal Harkhlal, Harikishandas Gulabchand and others. However, in view of reconstitution of the plots, they were given in exchange final plot Nos. 121 and 123 and possession of the plots were mutually transferred. So far as final plot No. 185 is concerned, it was vested in the Nagarpalika by final award of the Town Planning Officer and reserved to be developed as a town centre. Though, final plot Nos. 121 and 123 was given to its original owner, a Civil Suit No. 268 of 1976 was filed before the learned Civil Judge, Senior Division, Junagadh against Nagarpalika and the Government for a declaration of title of the said land in Survey Nos. 537/1 and 537/2 comprising of final plot No. 185 of Town Planning Scheme No. 2. Suit was however, dismissed and the ownership over final plot No. 185 was declared to be that of the Nagarpalika.

(3.) JURISDICTION of the Civil Courts and the Criminal Court were invoked to stall further proceedings in respect of the finalised Town Planning Scheme. Complaint was raised that the then President of Nagarpalika and Chief Officer of Nagarpalika had also sided with some of the parties, who had instituted the Civil Suits. Further, it was also pointed out that while Civil Suit No. 39 of 1994 was pending, respondent Nos. 7 and 8 herein had filed Civil Suit No. 155 of 1994 against Karsan Kalabhai, whose legal heirs had instituted Civil Suit No. 39 of 1994 on the strength of an agreement to sell dated 30th June, 1991, which was executed between respondents Nos. 7 and 8 with Kalabhai. Injunction was sought for against Kalabhai not to sell the subject -matter of land in Civil Suit No. 39 of 1994 to anybody, except respondent Nos. 7 and 8 herein. It is unnecessary to dwell upon the facts of those cases which in our view was only intended to delay the implementation of Town Planning Scheme. Simultaneously, after having noticed that plot No. 185 was included in the final Town Planning Scheme No. 2, heirs of Kalabhai had submitted an application on 21st May, 1995 through their Power of Attorney Holder Gordhandas Vithaldas to the Government of Gujarat for denotifying plot No. 185 from the reservation and for allotting the said land to the applicants at the old rate on ownership basis. Government, through its Urban Development and Housing Department, however, passed a Resolution on 19th June, 1996 as follows: RESOLUTION Resolved that the lands bearing Survey Nos. 537/1 and 537/2 and Final Plot No. 185 in the Una Town Planning Scheme No. 2, totally admeasuring 6288 sq.mtrs. out of which 21% that is 1302 sq.mtrs. of land is required to be kept open for purposes of roads and etc. in respect of the remaining 4898 sq.mtrs. of land permission is hereby granted to sell out the same to the Power of Attorney Holder - Shri Gordhandas Vithaldas Bhuptani on behalf of the legal heirs of the deceased Koli Karshanbhai Kalabhai as per proposal submitted by the Collector, Junagadh under the provisions of Section 65(2) of the Gujarat Municipalities Act, 1963 subject to the following conditions: