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Code of Civil Procedure, 1908 – Or. 41, r.31 – Gujarat Town Planning and Urban Development Act, 1976 – ss.52, 54, 70, 71, 81, 82 – Plaintiffs’ father owner of various plots surrendered land pursuant to a Town Planning Scheme – The Corporation allotted two separate final plots out of which possession of one was delivered to the plaintiffs’ father however, the possession of the other plot i.e. Final Plot No.463 was not delivered – Town Planning Scheme was varied later but without any alternative plot being allotted in lieu of Final Plot No.463 – However, under the second varied scheme, plaintiffs were offered Final Plot No.187 which had a smaller area by 974 sq. mts., and as per them they were offered meagre compensation @ ₹25/- per sq. mt. for the deducted area of 974 sq. mts. – Suit filed by plaintiffs against Corporation seeking compensation with interest or, alternatively, for allotment of land, i.e., an extent of 974 sq. mts., in any Town Planning Scheme in the western zone of Ahmedabad – Suit decreed by Trial Court accepting the alternative prayer, main prayer for compensation was rejected – Appeal filed by the Corporation was allowed by High Court, cross-objection filed by the plaintiffs were rejected – Plea of the plaintiffs inter alia that the judgment of the High Court is liable to be set aside on the ground that no points for determination were framed therein, as required by Or. 41, r.31 CPC: Held: Mere omission to frame the points for determination would not vitiate the judgment of the first appellate Court, provided that the first appellate Court recorded its reasons based on the evidence adduced by both parties – Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal – Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient – High Court did set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal – Further, no particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal – No merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh – Furthermore, on merits, plaintiffs, being well aware of the fact that Final Plot No. 187 allotted to them under the second varied Town Planning Scheme, was of lesser area, accepted the same without any protest and without agitating a right to a larger area in the light of the initial allotment of Plot No.463, and their conduct in depositing ₹24,350/- thereafter, implying receipt of the compensation amount for the shortfall area of 974 sq. mts. @ 25/- per sq. mt., foreclosed their right, if any, to either challenge the allotment of a plot of lesser area or to seek more compensation – Further, upon the preparation or variation of a Town Planning Scheme, the rights in the earlier plots of land would stand extinguished – Thus, such rights, if any, which became extinct cannot be the basis for a later cause of action – Also, the quantification of compensation @ 25/- per sq. mt. for the shortfall area of 974 sq. mts., which is relatable to the power of the Town Planning Officer u/s.52(3)(x), was a decision which was amenable to appellate review u/s.54 however, admittedly the plaintiffs did not avail such remedy – Plaintiffs’ claim for damages/compensation was also not supported by material evidence – Further, as there was never any guarantee that a plot owner who surrendered his land pursuant to a Town Planning Scheme would be allotted any land after reconstitution of the plots, the plaintiffs cannot assert any vested right in that regard – High Court justified in allowing the first appeal filed by the Corporation and non-suiting the plaintiffs in entirety – Impugned judgment not interfered with. [Paras 29-31, 34, 35, 39, 41 and 42]Gujarat Town Planning and Urban Development Act, 1976 – ss.70, 71 – Plaintiffs argued that variation of the Town Planning Scheme as permitted u/ss.70 and 71 must be read together: Held: No merit in this submission – Section 70 deals with the power to vary a Town Planning Scheme on the ground of error, irregularity or informality while Section 71 is general in nature and states that, notwithstanding anything contained in Section 70, a Town Planning Scheme may at any time be varied by a subsequent scheme made, published and sanctioned in accordance with the provisions of the Act of 1976 – The very fact that Section 71 begins with a non-obstante clause referring to Section 70, manifests that the power thereunder is not fettered in any manner, unlike the power under Section 70 which can only be exercised on the grounds of error, irregularity or informality – Further, Section 71 postulates that the variation of the Town Planning Scheme is to be made, published and sanctioned in accordance with the provisions of the Act of 1976, which would mean that the entire exercise would be undertaken afresh upon such variation, including reconstitution of the plots under Section 45 – Therefore, further reduction of a plot notified in the original Town Planning Scheme is implicit in the general power of variation vesting in the authority under Section 71 of the Act of 1976. [Para 37] Gujarat Town Planning and Urban Development Act, 1976 – Scheme – Chapter 5 – Town Planning Schemes – ss.40-76 – Discussed. Gujarat Town Planning and Urban Development Act, 1976 – s.45 – Reconstitution of plots – Plaintiffs contended that the 1976 Act does not contemplate a second reduction in the reconstituted plot area: Held: Said argument does not merit acceptance – Section 45 deals with reconstitution of plots – A plot owner who has surrendered his original land for the purposes of the Town Planning Scheme is not even assured of allotment of a reconstituted plot in lieu thereof – In such an event, he is entitled only to compensation – Therefore, there is no guaranteed right vesting in a plot owner who surrendered his land in accordance with the Town Planning Scheme that he would be allotted another plot of land in lieu thereof, much less, a plot of the same area – It is an admitted fact that, when the plaintiffs’ father surrendered an extent of 19823 sq. yds./16575 sq. mts., he was allotted a lesser extent of 15576 sq. yds./13023 sq. mts in two plots in the original Town Planning Scheme, with a deduction of 21.40% – As there was never any guarantee that a plot owner who surrendered his land pursuant to a Town Planning Scheme would be allotted any land after reconstitution of the plots, the plaintiffs cannot assert any vested right in that regard. [Paras 38, 41] |
