SHARDULKUMAR JAYANTKUMAR PASAWALA Vs. AHMEDABAD URBAN DEVELOPMENT AUTHORITY
LAWS(GJH)-1983-8-14
HIGH COURT OF GUJARAT
Decided on August 22,1983

Shardulkumar Jayantkumar Passawala And Others Appellant
VERSUS
Ahmedabad Urban Development Authority And Another Respondents

JUDGEMENT

N.H.BHATT - (1.) These two petitions by two different sets of petitioners but against the common respondent namely the Ahmedabad Urban Development Authority constituted under the Gujarat Town Planning and Urban Development Act 1976 and the common respondent no. 2-the State of Gujarat raise common questions of law in the context or background of similar facts and they can be conveniently taken up together and disposed of by this common judgment.
(2.) A few facts required to be noted in order to understand what the controversy is in these two petitions. The first two petitioners of the first petition no. 3459 of 1980 contended that certain lands set out in paragraph 2 of that petition belonged to them. Out of the land S. Nos. 44 45 and 46-P admeasuring 11155 sq. yds of land belonged to the petitioner no. 1 as the Karta of the Hindu Undivided Family and the land of S. No. 47-P and S. No. 53 admeasuring in all 40937 sq. yds. belongs to the petitioner no. 1 in his personal capacity. The petitioner no. 2 in that petition is the constituted attorney of the petitioner no. 1 for the purpose of of submitting a Scheme under secs. 20 and 21 of the said Act and for doing all incidental things for the purpose of implementing and executing the said Scheme under the Urban Land Ceiling Act. The respondent no. 1 is an urban authority constituted under sec. 22 of the Act and it is the authority for urban area of Ahmedabad with adjacent areas and the lands above-mentioned fall within that area. The petitioners by their application dated 28-2-80 had sought for permission for carrying out development of the land comprised in the said application as the lands were included in the draft town planning scheme made and published by the respondent no. 1 and the petitioner no. 1 had been allotted final plots nos. 99 104 and 105 in lieu of the said lands. The petitioners had submitted necessary plans and drawings and had also filled in the necessary form C under rule 9 of the Gujarat Town Planning and Urban Development Rules 1979 for obtaining permission for carrying out the aforementioned development in the land of the final plot no. 104. The respondent no. 1 in the initial stages obtained from the petitioners an amount of Rs. 533.80 calling it as development fee. This was on 1-3-80. The application was however rejected by the Senior Town Planner of the respondent no. 1 by his letter dated 9 Another application therefore was made on 18-4-80 submitting the revised plans as per the objections raised in the aforesaid letter of 10-4-80. At that time Rs. 76.50 were recovered as the development fee. By the order dated 2/3-5-80 the permission was granted to carry out the development under secs. 26 29 and 49 of the said A ct though the petitioners say that the relevant section applicable was sec. 49 of the Act. Then the petitioners were required to submit the revised plans and drawings before the respondent no. 1 for obtaining permission with respect to the revised plans for carrying out development under sec. 49 of the Act and they were required to pay almost under constrain a sum of Rs. 4720.75 as development fees which they paid under protest. The petitioners then found that some changes were required to be made in the plans and so revised plans were submitted and at that time the respondent no. 1 again recovered from the petitioners an amount of Rs. 4720.25 purporting to be development fees and named by the respondent no. 1 as scrutiny fee at the rate of 25 paise per sq. meter for the entire area which includes not only the proposed built up area but also open land. The petitioners were obliged to pay conversion charges for converting the said land for non-agricultural use under the provisions of the Bombay Land Revenue Code. The petitioners therefore filed the present petition for the following reliefs: (A) That it be declared that the provisions of secs. 119(1) and 119 of the Gujarat Town Planning and Urban Development Act 1976 are ultra vires: (B) That it be declared that regulations Annexures A & B purported to have been made by first respondent under the Gujarat Town Planning and Urban Development Act 1976 are ultra vires Articles 14 19 and 21 of the Constitution of India and therefore void; (C) That it be declared that regulations Annexures A & B made by first respondent under the development Act are ultra vires its powers and the said regulations are ultra vires the Gujarat Town Planning and Urban Development Act 1976 (D) That this Honble Court may be pleased to issue an appropriate writ order or direction in the nature of mandamus or any other appropriate writ order or direction directing first respondent not to enforce and/or implement regulations Annexure A or Annexure B and not to levey or recover any amount as development fee under the said Regulations; (E) That this Honble Court may be pleased to issue a writ of mandamus or any other appropriate writ order or direction directing first respondent to refund the amount of development fees of Rs. 5330.65 charged from the petitioners nos. I and 2.
(3.) The facts of the second petition are that the petitioner no. 1 is a co-operative housing society brought into being under the provisions of the Gujarat Co-operative Societies Act 1961 and its business is to provide houses for its members. The petitioner no. 2 there is a Non-Trading Corporation created under the Non-Trading Corporations Act and one of its objectives is to protect the interests of developers of housing and estate within the State of Gujarat. The land of the petitioner no. 1 is situated in S-No.93/1 of Memnagar and under the draft town planning scheme no. 1-Memnagar it is given final plot no. 99. After obtaining requisite non-agricultural permission from the District Development Officer Ahmedabad the petitioner society made an application to the respondent no. 1 under sec. 49 (1) (a) of the Act and by the reply dated 29-11-79 they were informed by the respondent no. 1 that as the petitioner no. 1-society had not paid the necessary development fee the permission could not be granted. Annexure A is the said reply. The petitioners say is that they are not liable to pay any such charges for want of any authority with the respondent no. 1 to charge the same. Still with a view to avoid delay the petitioner no. 1-society had paid on 5-12-79 an amount of Rs. 153.90 being the development fee as demanded by the respondent no. 1. Then the respondent no. 1 by its letter dated 11/16-1-80 rejected the application on the ground that the plan submitted by the petitioner-no. 1-society did not show the whole of the limits of original survey number and the area mentioned of the final plot as being 4730 sq. meters was not the correct area of the final plot as mentioned in the Town Planning Scheme-I. It was suggested that the area there was shown as 5645 sq. meters. Annexure C is the said reply. On that ground the permission was refused. Thereafter the petitioner no. 1-society with a view to avoid any technicality submitted a fresh application on 53-80 with necessary corrections and removing objections raised by the respondent no. 1 earlier. At that time it was insisted that Rs. 403.85 were required to be paid as development fee. That amount also was paid under constrain on 19-3-80. Again the respondent no. 1 refused the permission on the ground that the development fee paid by the petitioner no. 1- society was less than the prescribed one and that the application was not accompanied by the Record of Rights. Again the petitioner no. 1 society was obliged to pay an amount of Rs. 42.00 and also submitted the Record of Rights. This was on 9-4-80. Then the respondent no. 1 by its letter dated 18/19-4-80 informed the petitioner no. that its application was rejected on the ground that there was some mistake in producing the Record of Rights. It was stated that the Record of Rights was not produced with respect to S. No. 93/1 but it was produced with respect to S. No. 93/2 and therefore the permission was refused vide Annexure N. The petitioner no. 1-society had submitted by their letter dated 30-4-80 that the Record of Rights submitted was absolutely correct and also explained the discrepancies in that behalf. The respondent no. 1 by its order dated 17-6-80 rejected the application with the added ground that No Objection Certificate was not produced and that in sub-plot no. 3 there were three entries from the main road instead of only one entry. On such alleged ground again permission was refused. The petitioner no. 1-society thereafter submitted by their letter dated 21-6-80 all clarifications and corrected the plan and submitted the same afresh and that too was rejected on 11-7-80 on the ground that the petitioner no. 1-society had carried out unauthorised construction before permission under sec. 49 (1) (a) was granted and that 80 long as the respondent no. 1 did not take a decision with respect to the unauthorised construction no permission under sec. 49 (1) (a) could be granted vide Annexure K. Then there came to be passed an order on 17-7-80 purporting to be under the Act and a show cause notice was issued to the petitioner no. 1-society that the petiioner no. 1 had carried out development on the land without obtaining permission under various sections of the Act and also requiring to show as to why the said construction should not be removed. The petitioners contended that the provisions of which violation was alleged was not even specified. The petitioner no. 1-society replied to the said show cause notice and added that inspite of the above if it was necessary to pay any penalty the petitioner no. 1 be informed of the same and the petitioner was required to pay Rs. 7056.25 as alleged development fee for unauthorised development on the said land. Thus in all the petitioner no. 1-society was made to pay the huge amount and their say is that all those charges were illegally recovered from them and the respondent no. 1 be ordered to refund the said amounts. The prayers put forward in the petition are : (A) That it be declared that the provisions of sec. 119 (1) and 119 (2) (c) of the Gujarat Town Planning and Urban Development Act 1976 are ultra vires; (B) That it be declared that regulations Annexures R & S purported to have been made by first respondent under the Gujarat Town Planning and Urban Development Act 1976 are ultra vires Articles 14 19 and 21 of the Constitution of India and therefore void; (C) That it be declared the regulations Annexures R and S made by first respondent under the Development Act are ultra vires its powers and the said regulations are ultra vires the Gujarat Town Planning and Urban Development Act 1976 (D) That this Honble Court may be pleased to issue an appropriate writ order or direction in the nature of mandamus or any other appropriate writ order or direction directing first respondent not to enforce and/or implement regulations Annexure R or Annexure S and not to levy or recover any amount as development fee under the said regulations; (E) That this Honble Court may be pleased to issue a writ of mandamus or any other appropriate writ order or direction directing first respondent to refund the amount of Rs. 7657.00 (rupees seven thousand six hundred fifty seven only) being the amount of development fee and fine charged from petitioner no. 1; (F) That it be declared that the construction carried out by petitioner no. 1-society on the said land is unauthorised and legal and the permission applied for on 23-11-79 is deemed to have been granted under the provisions of the said Act and the construction carried out is not unauthorised. ;


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