Holding

Since the State Government rejected the Nagarpalika’s proposal for variation, the statutory consequences under Section 65 of the Gujarat Town Planning and Urban Development Act must be given effect, and the High Court’s earlier direction to implement the scheme is set aside.

Summary

The appellants sought a writ of mandamus directing the Nagarpalika to implement a town planning scheme that had been sanctioned under the Gujarat Town Planning and Urban Development Act, 1976. The High Court Single Judge granted the direction, but the Division Bench set it aside on the ground that a variation of the scheme was pending under Section 71. The appellants argued that the State Government had already rejected the variation proposal, making the pending application academic. The Supreme Court examined the statutory provisions governing variation (Sections 70 and 71) and the effect of a rejection of variation under Section 65, and held that the rejection triggers the statutory consequences of the scheme. Consequently, the Court set aside the High Court’s direction, stating that the scheme must be enforced subject to any decision in the pending writ petition. The appeal was partly allowed.

Issues considered

Whether a High Court can direct implementation of a sanctioned town planning scheme when an application for variation of the scheme is pending under Section 71 of the Gujarat Town Planning and Urban Development Act, 1976.
What statutory consequences arise when the State Government rejects the proposal for variation of a town planning scheme.
Whether the High Court’s discretion to grant mandamus is barred by a pending variation application under the Act.

Legislation cited

Gujarat Town Planning and Urban Development Act, 1976s. 65, s. 66, s. 67, s. 68, s. 69, s. 70, s. 71
Gujarat Town Planning and Urban Development Rules, 1979

Subjects

town planning schemevariation of schememandamusSection 71statutory consequencesGujarat Town Planning ActHigh Court discretionimplementation

Judgment

N. NANALAL KIKLA WALA AND ANR. A
v.
STATE OF GUJARAT AND ORS.

NOVEMBER 7, 2005

[ARIJITPASAYAT ANDC.K. THAKKER,JJ.] B

Gujarat Town Planning and Urban Development Act, 1976-Section
7/--(Jujarat Town Planning and Urban Development Rules,1979-Town
Planning Scheme-Writ Petition seeking implementation of the Scheme- C
Application of Nagarpalika for variation of the Scheme, pending before State
Government-Direction by Single Judge of High Court to implement the
Scheme-In appeal Division Bench of High Court holding that Single Judge
. could not have given direction when proposal for variation was pending-
Subsequently variation ofthe Scheme rejected by State Government-Rejection
ofvariation challenged in Writ Petition-On appeal, held: In view ofrejection D
of the proposal for variation, statutory consequences to be worked out-
However, it would be subject to the decision in the Writ Petition.

A town planning scheme was sanctioned effecting the 'prop«irties of the
appellants, a trust and the tenants therein. Appellants filed Writ Petition
seeking implementation and execution of the sanctioned scheme. Two other E
petitions were filed by the tenant and the trust. Petition of the appellant was
allowed by Single Judge of the High Court and the Nagarpalika was directed
to implement the scheme in accordance with the provisions contained in
Gujarat Town Planning and Urban Development Act, 1976 and Gujarat Town
Planning and Urban Development Rules, 1979. The other two petitions were F
dismissed. The orders were challenged before Division Bench. Nagarpalika
took the plea that in view of Section 71 of the Act, High Court could not have
given the directions, as it had applied for variation of the scheme. Division
Bench accepted the plea of Nagarp.alika.

In appeal to this Court, appellants contended that the State Government G
had rejected the prayer for variation·ofthe scheme.

Nagarpalika contended that refusal to vary the scheme was pending
under ehsllenge before High Court.
' H
2 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A Functionaries of the Trust contended that.subsequent to the rejection,
State Government had again approved the variation. They further contended
•.
that everything was not clean and transparent as was evident from various
correspondences made by various authorities of the concerned department.

Partly allowing the appeal, the Court
B
HELD: J. In view of the rejection of the proposal of the Nagarpalika for
variation, the statutory consequences which flow are to be worked out. This,
however, would be subject to the decision, if any, in the writ petition. 111-B)

C The Municipal Corporaiion for Greater Bombay and Anr.. v. f.he
Advance Builders (India) Pvt. Ltd and Ors., (1971) 3 SCC 381, referred to.

2. It is correct that everything is not clean and transparent in the
concerned department as is evident from the various correspondences made
by various a~thorities of the concerned department. The views in the various
D communications made by various officials are not consistent. This does not
speak well of the concerned department. [5-D(

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2972 of2001.

From the Judgment and Order dated 6.7.99 of the Gujarat High Court in
E LP.A. No. 316 of 1999 in S.C. Application No. 9468 of 1996.
D.A. Dave, Kalpesh Parikh and Mrs. Nandini Gore for the Appella,nts .

. Mahendra Anand, Mrs. Hemantika Wahi, Maulik Nanavati, Abhijat'P.
M7~ti, Rajiv .Mehta, B. Aggarwala and A. Henry for the Respondents.
F The Judgment of the Court was delivered by
ARIJIT PASA YAT, J. Challenge in this appeal is to the legality of the
judgment rendered by a Division Bench of the Gujarat High Court in a Letters
Patent Appeal which was filed by Dahod Nagarpalika (in short 'Nagarpalika'),
G the respondent No. 2 in this appeal. In the Letters Patent Appeal challenge
·was to the judgment rendered by a learned Single Judge in a writ petition filed
by the present appellant for a direction to implement and execute a s.:heme
sanctioned. under the provisions of the Gujarat Town Planning and Urban
Development Act, 1976 (in short the 'Act').

H
N.NANALALKIKLAWALA v. STATEOFGUJARAT[PASAYAT,J.) 3

The learned Single Judge had directed to implement the Town Planning A
Scheme in question in accordance with the provisions of the Act and the
Gujarat Town Planning and Urban Development Rules, 1979 (in short the
'Rules'). A time limit for carrying out the directions was fixed and the last date
was indicated to be 30th June, 1999. The Division Bench allowed the appeal
and set aside the judgment rendered by learned Single Judge.
B
The factual position in a nutshell is as follows:

Several parties are involved in the dispute. They are Navinchandra
Nanalal Kikawala and another, the tenant Pachubhai Matrubhai Pathak, another
tenant Hasanjibhai K. Bhewala and a trust, known as "Abdulhassain Rasulbhai C
Kagawala Trust", and Dahod Nagarpalika. The dispute centered around the
town planning scheme, which was sanctioned on June 2, 1977 and was
published on April 30, 1981. The dispute relates to the original plots of
Kiklawalas and the Kagalwala Trust and the final plots were reconstituted
from the original plots. The land belonging to Kiklawalas was bearing Revenue
Survey No.3/E. Later on, at the time of City Survey Settlement, the same was D
numbered as City Survey No.453/E. The above-said land was admeasuring
2156 sq. mtrs. The Kagalwala Trust had the original plot, which was registered
as Revenue Survey No.2/A and was admeasuring about 2059 sq. mtrs. According
to the scheme, which became final, the original plots, both of Kiklawalas and

- Kagalwala Trust came to be reconstituted. Some portion of the land belonging E
to the Kagalwala Trust was to be given to Kiklawalas, and a portion of the
land of Kiklawalas was required to be hived off and was to be utilized for the
purposes of garden and open air theatre. By this process, a reconstituted final
plot, bearing No.19, was to be given to Kiklawalas to admeasure about 1670.25
sq. mtrs. Final Plot No. 20 was to go to Kagalwala Trust admeasuring 1142
sq. mtrs. The land being given to Kiklawalas from the Kagalwala Trust had F
construction and tenant also. In the same way, some portion of the land,
which Kiklawalas would get under the reconstituted plot, was also having
tenants of their own.

Therefore, the main petition registered as Special Civil Application
No.9468 of 1996 was filed by Kiklawalas, praying for a writ of mandamus for G
the implementation and execution of the sanctioned scheme. Two other
petitions, viz., Special Civil Application No.7895 of 1997 and Special Civil
Application No.2462 of 1998 were filed by the tenant and the Kagalwala Trust.
By a common judgment, the three Writ petitions were disposed of. The main
petition was allowed and the Dahod Nagarpalika was directed to implement H
4 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A the town planning scheme in question. It was -held that this should be done
in accordance with the provisions contained in the Act and the rules framed
thereunder. The further directions were that action was to be taken "at the
earliest possible time without any further loss of time and in no case later than
30th June, 1999". The other two petitions were dismissed. These orders were
challenged before the Division Bench.
B
Before the High Collrt the Nagarpalika took the stand that it had applied
for variation of the schemes. In view of the provisions contained in Section
71 of the Act, the direction as given by learned Single Judge could not have
been given. Learned Single Judge had observed that mere possibility of
c variation.in town planning scheme by subsequent scheme does not authorize
the Nagarpalika to avoid implementation of scheme. The High Court accepted
the plea of the Nagarpalika that when proposal for variation is pending the
direction should not have been given. It was observed that the parties were
to act in accordance with the scheme, if any scheme emerges as a consequence
of the variation of the sanctioned scheme. Opportunity was given to the
D aggrieved party to question correctness of the scheme before the appropriate
forum.

Learned counsel for the appellant S!Jbmitted that the State Government
has rejected the prayer for variation of the scheme and though the Division
Bench had considered the effect of variation, the said question has become
E academic in view of the subsequent events. -

Learned counsel for the Nagarpalika submitted that the State
Government's refusal to vary the scheme is presently under challenge and is
the subject matter of chal!enge in Special Civil Application No.9839 of 200 I.
F Learned counsel for the respondents 3 and 4 who claimed to be functionaries
of Kagalwala Trust submitted that subsequent to the rejection the State
Government has again approved the variation. Reference was made to copy
of a letter No.NRY/322001/1746/L dated 13-5/6/2005 purported to have been
written by one Rupabhai Lakhabhai Charel, Section Officer of the Urban
Development and Urban Housing Department, Sachivalaya, Gandhinagar.
G Serious disputes were raised about the authenticity of the letter and the
authority to write such a letter.

What has transpired is really shocking. In the affidavit filed by the
Principal Secretary in the Urban Housing Development, Government of Gujarat,
it has been categorically stated that there is no record about the issuance of
H such letter by the Department. In fact, it has been stated that the Town
N.NANALALKIKLAWALA v. STATEOFGUJARAT[PASAYAT.J.] 5

Planning Scheme No. I, Dahod (II Varied) has not been sanctioned by the A
Government and has been rejected by notification dated 9.8.2001 and there
is no subsequent change in the decision. In the affidavit filed by aforesaid
Rupabhai Lakhabhai Charel he has stated that he has issued letter and the
subject of the letter pertained to giving approval to the Dahod Town Planning
Scheme No. I, (II Varied) and the same has been issued from the Department
for the purpose of getting varied proposal of the scheme in question and for B
taking further action at the end of the Department.

Learned counsel appearing for the State has placed before us the
relevant file which shows that at one place the aforesaid Rupabhai Lakhabhai
Charel has accepted that it does not appear from the records that such letter C
was issued. In view of the specific stand of the State Government, the letter
referred to above is really of no consequence. The authority under which the
letter was issued has not been explained by the aforesaid Rupabhai Lakhabhai
Charel. Learned counsel appearing for the respondents 3 and 4 (functionaries
of the Trust) submitted that everything is not clean and transparent in the
concerned department as is evident from the various correspondences made D
by various authorities of the concerned department. Reference has been made
to various documents in this connection. We find substance in this plea. The
views in the various communications made by various officials are not
consistent. This does not speak well of the concerned department. What is
baffling is that after having noticed that the aforesaid Rupabhai Lakhabhai E
Charel has written a letter without any authority to do so, he has been merely
transferred to another department. Learned counsel for the State of Gujarat
stated that the police have also been asked to conduct an inquiry in the
matter. Learned counsel appearing for the State could not explain as to what
role the police has to play after the author of the letter has admitted Jack of
authority and authorship of the letter. We are at loss to understand the logic F
in what way the State Government has done. What is still more baffling is the
soft-pedalling by the State Government in such a serious matter. Learned
counsel appearing for the State failed to explain as to how the various officers
of the same department could write letters containing diametrically opposite
views. Be that as it may, the definite stand of the State Government as stated G
in the affidavit of the Principal Secretary is that the State Government has
rejected the proposal for variation. The correctness of the decision is being
tested in the writ petition. But there is, in fact, no order of stay. So far as the
decision is concerned till the order is set aside, the consequences which
statutorily flow in terms. of Section 65 have to be given effect. The said
provision reads as follows: H
6 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A ·"Section 65. Power of Government to sanction or refuse to sanction
the scheme and effect of sanction.

(t) On receipt of the preliminary scheme or, as the case may be, the
final scheme, the State Government may -

(a) in the case of a preliminary scheme, within a period of two
B
months from the date of its receipt, and
(b) in the case of a final scheme, within a period of three months
from the date of its receipt.

by notification, sanction the preliminary scheme or the final scheme
C or refuse to give sanction, provided that in sanctioning any such
scheme, the State Government may make such modifications as may,
in its opinion, be necessary for the purpose of correcting an error,
irregularity or informality.

(2) Where the State Government sanctions the preliminary scheme or
D the final scheme, it shall state in the notification -

(a) the place at which the scheme shall be kept open for inspection
by the public, and
(b) a date in which all the liabilities created by the scheme shall
come into force:
E
Provided that the State Government may from time to time such date,
by notification, by such period, not exceeding three months at a time,
as it thinks fit.

(3) On and after the date fixed in such notification, the preliminary
F scheme or the final scheme, as the case may be, shall have effect as
if it were enacted in this Act."

Few other provisions i.e. Sections 66 to 71 which have relevance need
to be noted. They read as follows:

G Section 66. Withdrawal of scheme:

(l) If at any time before the preliminary scheme is forwarded by the
Town Planning Officer to the State Government, a representation is
made to the Town Planning Officer by the appropriate authority and
a majority of the owners in the area, that the scheme should be
H
N.NANALALKIKLAWALA v. STATEOFGUJARAT[PASAYAT,J.) 7
withdrawn, the Town Planning Officer shall, after inviting from all A
persons interested in the scheme objections to such representation,
forward such representation together with the objections, if any, to
the State Government.
(2) The State Government, after making such inquiry as it may deem
fit, may, if it is of the opinion that it is necessary or expedient so to B
do, by notification, direct that the scheme shall be withdrawn and
upon such withdrawal no further proceedings shall be taken in regard
to such scheme.
Section 67. Effect of preliminary scheme.

On the day on which the preliminary scheme comes into force -
c
(a) all lands required by the appropriate authority shall, unless it is
otherwise determined in such scheme, vest absolutely in the
appropriate authority free from all encumbrances; .
(b) all rights in the original plots which have been re-constituted into D
final plots shall determine and the final plots shall become subject to
the rights settled by the Town Planning Officer.
Section 68. Power of appropriate authority to evict summarily.
... On and after the date on which a preliminary scheme comes into E
force, any person continuing to occupy any land ~hich he is not
entitled to occupy under the preliminary scheme shall, in accordance
with the prescribed procedure, be summarily evicted by the appropriate
authority.

Section 69. Power to enforce scheme. F
(I) On and after the date on which a preliminary scheme comes into
force, the appropriate authority shall, after giving the prescribed notice
and in accordance with the provisions of the scheme.
(a) remove, pull down, or alter any building or other work in the G
area included in the scheme which is such as contravenes the
scheme or in the erection or carrying out of which any provision
of the scheme has been complied with;
(b) execute any work which it is the duty of any person to
execute under the scheme in any case where it appears to the H
8 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A appropriate authority that delay in the execution of *e work
would prejudice the efficient operation of the scheme.

(2) any expenses incurred by the appropriate authority under this
section shall be recovered from the person in default or from the
owner of the plot in the manner provided for the recovery of sums due
B to the appropriate authority under the provisions of this Act.

(3) if any question arises as to whether any building or work
contravenes a town planning scheme or whether any provision of a
town planning scheme is not complied with in the erection or carrying
out of any such building or work, it shall be referred to the State
C Government and the decision of the State Government shall be final
and binding on all persons.

(4) No person shall be entitled to compensation in respect of any
damage, loss or injury resulting from any action taken by the appropriate
authority under the provisions of this section except in respect of the
D building or work begun before the date referred to in sub-section (I)
and only in so far as such building or work has proceeded under that
date;

Provided that any claim to compensation, which is not barred by
this sub-section shall be subject to the condition of any agreement
E entered into between the claimant and the appropriate authority.

(5) the provisions of this section shall not apply to any operational
construction undertaken by the Central Government or a State
Government.

F Section 70. Power to vary scheme on ground of error, irregularity
or informality.

(I) If after the preliminary scheme or the final scheme has come into
force, the appropriate authority considers, that the scheme is defective
on account of an error, irregularity or informality, the appropriate
G authority may apply in writing to the State Government for the variation
of the scheme.

(2) If on receiving such application or otherwise, the State Government
is satisfied that the variation required is not substantial, the State ·
Government shall publish a draft on such variation in the prescribed
H manner.
N.NANALALKIKLAWALA v. STATEOFGUJARAT[PASAYAT,J.] 9

(3) The draft variation published under sub-section (2) shall state A
every variation proposed to be made in the scheme and if any such
variation relates to a matter specified in any of the clauses (a) to (h)of
sub-section (3) of section 40, the draft variation shall also contain
such other particulars as may be prescribed.

(4) the draft variation shall be open to the inspection of the public at B
the head office of the appropriate authority during office hours.

(5) Within one month of the date of publication of the draft variation,
any person affected thereby may communicate in writing his objections
to such variation to the State Government through the Collector and
send a copy thereof to the appropriate authority. C
(6) After receiving the objections under sub-section (5), the State
Government may, after consulting the appropriate authority and after
making such inquiry as it may think fit, by notification.

(a) appoint a Town Planning Officer and thereupon the provisions D
of this Chapter shall, so far as may be, apply to such draft
variation as if it were a draft scheme sanctioned by the State
Government, or
(b) make the variation with or without modification, or
(c) refuse to make the variation. E
(7) From the date of the notification making the variation, with or
without modification, such variation shall take effect as if it were
incorporated in the scheme.

Section 70 A. Variation of Town Planning Scheme for land allotted for F
public purpose.

If at any time after the final town planning scheme comes into force,
the appropriate authority is of the opinion that the purpose for which
any land is allotted in such scheme under any of the paragraphs (ii)
and (iii) of sub-clause (a) of clause (ii) of sub-section (3) of Section G
40 requires to be changed to any other purpose specified in any of
the said paragraphs, the appropriate authority may make such change
after following the procedure relating to amendment of regulations
specified in Section 72 as is such change were an amendment of
regulations.
H
10 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A Section 71. Variation of town planning scheme by another scheme.

Notwithstanding anything contained in section 70, a town planning
scheme may at any time be varied a subsequent scheme made, published and
sanctioned in accordance with the provisions of this Act.

B The provisions relate to different stages and situations. Section 66
deals with withdrawal of a scheme. Section 70 on which the Division Bench
placed reliance deals with power to vary scheme on ground of error, irregularity
or informality. As noted in sub-section (I), liberty is granted to the appropriate
authority (as defined in Section 2(iii)) to apply in writing to the State
C Government for variation of the scheme if according to it the final scheme
which has come into force, is defective on account of an error, irregularity or
informality. Only if variation is made, in terms of sub-section (7) of Section
70, it takes effect from the date of notification of the variation as if it were
incorporated in the scheme. Section 71 is also an important provision which
provides that notwithstanding anything contained in Section 70, a town
D planning scheme may be varied by a subsequent scheme which is made
published and sanctioned in accordance with provisions of the Act.

At this juncture, it would be proper to refer to take note of the decision
of this Court in The Municipal Corporation/or Greater Bombay and Anr. v.
The Advance Builders (India) Pvt. Ltd. and Ors., [ 1971] 3 SCC 381. The said
E case related to almost pari materia provisions in the Bombay Town Planning
Act, 1954. In para 13, it was noted as follows:

"13. It was however, contended by the learned Attorney General that
after all a writ of mandamus is not a writ of course or a writ of right
but is, as a rule, a matter for the discretion of the court. That is
F undoubtedly the case. It is pointed out by Lord Hatherley in The
Queen v. The Church Wardens of All Saints, Wigan and Ors. (1875-
76) I AC 611 that upon a prerogative writ there may arise many
matters of discretion which may induce the Judges to withhold the
grant of it -matters connected with delay, or possibly with the
conduct cf the parties; but, as further pointed out by His Lordship,
G
when the Judges have exercised their discretion in directing that
which is in itself lawful to be done, no other Court can question that
discretion in so directing. In the present case, the High Court has
exercised its discretion in directing the issue of the writ and this
Court, in an appeal by special leave, will not ordinarily question that
H
N.NANALALKIKLAWALA v. STATEOFGUJARAT[PASAYAT,J.] 11
discretion." A
In the circumstances, we set aside the order of the High Court and
direct that in view of the rejection of the proposal of the Nagarpalika for
variation, the statutory consequences which flow are to be worked out. This,
however, would be subject to the decision, if any, in the writ petition. We
make it clear that we have ·not expressed any opinion on the legality or B
otherwise of the order refusing to accept the prayer for variation.

The appeal is allowed to the aforesaid extent without any order as to
costs.

KKT. Appeal partly allowed. C