2024 INSC 401 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 16956-16957 OF 2017

Mrugendra Indravadan Mehta and others … Appellants

Versus

Ahmedabad Municipal Corporation … Respondent

J U D G M E N T

SANJAY KUMAR, J

1. These two appeals arise out of the common judgment dated

18.06.2013 passed by a Division Bench of the High Court of Gujarat at

Ahmedabad in First Appeal No. 3596 of 2009 and Cross-Objection No. 81

of 2010 in First Appeal No. 3596 of 2009. Thereby, the Division Bench

allowed the first appeal filed by the Ahmedabad Municipal Corporation

(for brevity, ‘the Corporation’) and dismissed the cross-objection filed by

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the respondents in the first appeal. Aggrieved thereby, the said

respondents filed these appeals.

2. The Corporation filed the aforestated first appeal challenging

the judgment and decree dated 17.12.2008 passed by a learned Judge of

the City Civil Court, Ahmedabad, in Civil Suit No. 4583 of 1998. The said

suit was filed by the appellants herein against the Corporation seeking

compensation of ₹1,63,97,673/- with interest thereon @ 18% p.a. or, in

the alternative, allotment of land, i.e., an extent of 974 sq. mts., in any

Town Planning Scheme in the western zone of Ahmedabad.

3. The suit averments of the appellants (hereinafter, referred to

as ‘the plaintiffs’) were as follows: The plaintiffs’ father was the owner of

original Plot Nos. 144, 150/P and 151/P in Survey Nos. 155, 209 and

210/P respectively, admeasuring 19823 sq. yds./16575 sq. mts. While so,

the Corporation prepared Town Planning Scheme No.6, Paldi, under the

provisions of the Gujarat Town Planning and Urban Development Act,

1976 (for brevity, ‘the Act of 1976’). The scheme came into force from

01.08.1963, whereupon the plaintiffs’ father was required to contribute

21.40% of his lands, i.e., 4247 sq. yds./3552 sq. mts., to the Corporation

for public purposes. For the remaining extent of 15576 sq. yds./13023 sq.

mts., the Corporation allotted two separate final plots, viz., Final Plot No.

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478, admeasuring 11686 sq. yds./9771 sq. mts., and Final Plot No. 463,

admeasuring 3890 sq. yds./3252 sq. mts. The vacant possession of Final

Plot No. 478 was delivered to the plaintiffs’ father but the Corporation

failed to deliver possession of Final Plot No. 463 owing to its occupation

by slum dwellers. Town Planning Scheme No. 6 was varied thereafter in

1983 but without any alternative plot being allotted in lieu of Final Plot No.

463. The Corporation then prepared a second varied scheme in the year

1986, viz., Town Planning Scheme No. 6, Paldi (second varied), which

came into force on 26.04.1991. Thereunder, Final Plot No. 463 was taken

back for the purpose of slum upgradation and the plaintiffs were offered

Final Plot No. 187, admeasuring 2724 sq. yds./2278 sq. mts. In effect, the

land allotment in their favour was reduced by 974 sq. mts., when

compared with the area of the initially allotted plot. The plaintiffs claimed

that they were offered meagre compensation @ ₹25/- per sq. mt. for the

deducted area of 974 sq. mts, though the value of the land in 1991 was

about ₹6000/- per sq. mt. in Paldi area. Even after the second variation of

the scheme, in which Final Plot No. 187 was allotted to them, the

Corporation failed to give vacant possession thereof, due to litigation

between the Corporation and the occupant of the said plot. Ultimately, the

Corporation was able to handover possession of Final Plot No. 187 to

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them only on 31.01.1996, after the litigation came to an end. Thus, from

01.08.1963, the date on which Town Planning Scheme No. 6, Paldi

(Principal Scheme), came into force, the plaintiffs were deprived of

possession and enjoyment of 3890 sq. yds. of land, as was promised

initially, as the Corporation was not in a position to allot the said land to

them and on 31.01.1996, they were finally delivered possession of Final

Plot No. 187 admeasuring only 2278 sq. mts. The compensation awarded

to them for the shortfall of 974 sq. mts. @ ₹25/- per sq. mt. was an eye

wash in view of the prevailing prices of land in Paldi area in the year

1991. The plaintiffs stated that they were, therefore, constrained to sue

for compensation for the damages suffered by them due to the failure of

the Corporation in discharging its duties under the Act of 1976.

4. Further, the plaintiffs pointed out that, in Town Planning

Scheme No. 6, Final Plot No. 187 was reserved for construction of a

school but the Corporation permitted one Pulkit Trust to use it as a

playground in 1970. In the first variation of the scheme, Final Plot No. 187

was reserved for a Civic Centre. Litigation cropped up between Pulkit

Trust and the Corporation and during the pendency thereof, the

Corporation prepared the second varied scheme, whereby the plaintiffs

were allotted Final Plot No. 187 though it was still in the occupation of

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Pulkit Trust. The Corporation issued Notice dated 27.04.1992 under

Section 68 of the Act of 1976 proposing to evict Pulkit Trust from the land.

After considering the objections raised by Pulkit Trust, the Corporation

informed it on 27.09.1994 that the same were not accepted. Thereupon,

Pulkit Trust filed Civil Suit No. 5415 of 1994, which ultimately culminated

with the dismissal of the SLP filed by it before this Court in 1995.

5. The plaintiffs further stated that, in the meantime, a public

interest litigation was instituted before the High Court of Gujarat vide

Special Civil Application No. 3980 of 1992. The plaintiffs also joined the

litigation thereafter as necessary parties. This case was finally dismissed

by the High Court on 3/4.04.1995. The plaintiffs stated that they had

suffered huge monetary losses as they were deprived of the benefit of

enjoying the property since 1963 and the failure of the Corporation in

allotting them suitable land, at the time the scheme was implemented,

amounted to failure in discharge of its statutory obligation and duty under

Sections 65, 68, 84 and 85 of the Act of 1976. The plaintiffs claimed that

the market rate of the land allotted to the plaintiffs was about ₹150/- per

sq. yd. in the year 1963 and, therefore, the value of 3890 sq. yds. would

come to ₹5,83,500/-. They asserted that if this amount had been invested

at 10% p.a. compound rate of interest, it would come to ₹1,63,97,673/-.

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They prayed for compensation of ₹1,63,97,673/-. They further stated that,

the scheme was framed as per the provisions of the Act of 1976, whereby

deduction of 21.40% of their land was necessitated, but they were finally

allotted land with a further deduction of 974 sq. mts. illegally. They,

therefore, sought allotment of that land in the alternative.

6. The Corporation filed its written statement in the suit, stating

as under:The suit, as framed, was not maintainable and the Civil Court

had no jurisdiction to entertain it and grant the reliefs prayed for therein.

The suit also required to be dismissed for non-joinder of parties, as the

State Government had not been impleaded therein. Even on merits, the

plaintiffs were not entitled to the reliefs prayed for. The plaintiffs were

allotted Final Plot No. 187, admeasuring 2278 sq. mts., under the

scheme, which had been varied after following the due procedure. As

regards the shortfall of land, the plaintiffs were paid compensation @

₹25/- per sq. mt. under the scheme itself and, as such, the plaintiffs

accepted possession of Final Plot No. 187 and the compensation, in

respect of the remaining area of land, without protest and without

challenging the same. Therefore, it was not open to them to make out a

grievance either with respect to the remaining area of land and/or the

quantum of compensation. If they had any grievance with respect to the

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quantum of compensation, they were required to prefer an appeal under

Section 54 of the Act of 1976. Further, the plaintiffs could not pray for

compensation for the extent of 974 sq. mts. on the basis of the original

Town Planning Scheme No. 6, Paldi, as upon variation of the scheme, the

original scheme ceased to be in existence and stood substituted by the

varied scheme under Section 71 of the Act of 1976. The Corporation,

accordingly, prayed for dismissal of the suit.

7. On the basis of the aforesaid pleadings, the Trial Court

framed the following issues for consideration: -

‘1)Whether the plaintiff proves that deceased father was the

original owner of land bearing S. Nos. 255, 209 and 210/P (original

plot Nos. 144, 150/P and 151/P) admeasuring 19823 sq. yards in

Paldi area?

2)Whether the plaintiff proves that they required to be allotted

155/6 sq. yards by Ahmedabad Municipal Corporation due to

enforcement of Town Planning Scheme?

3)Whether the plaintiff proves that one final plot was allotted

on the original plot itself and another final plot admeasuring about

3890 sq. yards bearing S. No. 403 was allotted to other side?

4)Whether the plaintiff proves that the defendant failed

perform its legal obligation to give vacant and peaceful possession

of Final Plot No. 463 due to alleged reasons?

5)Whether the plaintiff proves that the defendant offered Final

Plot No. 187 admeasuring 2278 sq. mts.?

6)Whether the plaintiff proves that the defendant offered a

meagre compensation for the deducted area of 972 sq. meter.

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Even though the real value of the land in 1991 was about Rs.

6000/- per sq. meter, in Paldi area?

7)Whether the plaintiff proves that the defendant handed over

and allotted the possession of Final Plot No. 187 on dt. 3196 after

litigation as alleged in the plaint?

8)Whether the plaintiff proves that the compensation

awarded, for the difference of 974 sq. meter. At the rate of Rs. 25

per sq. meter, was merely an eye wash in view of the prevailing

prices of land in Paldi area in the year 1991?

9)Whether the plaintiff proves that as alleged plots handed

over to him on different dates, so he suffered huge monetary loss

and deprived of benefit on enjoyment of their property since 1963?

10)Whether the plaintiff proves that the prevailing market rate

of the allotted land to them was about Rs. 150/- per sq. yard in

1963? And value of 3890 sq. yards land would come to Rs.

5,83,500?

11)Whether the plaintiffs prove that they are entitled to the

interest at the rate of 10% p.a. on Rs. 5,83,500/- which have

turned out in investment at compound rate of interest comes to Rs.

1,63,97,673/- as alleged?

11A)Whether the plaintiff is entitled to be allotted remaining land

of 974 sq. meter by the defendant as prayed for in para 10(A) of

plaint?

12)Whether the defendant proves that the suit is bad and

illegal for non-joinder of necessary parties as alleged?

13)Whether the defendant proves that the suit is not

maintainable as alleged?

14)Whether the defendant proves that the plaintiff had not

raised any objection at the proper time as alleged?

15)Whether the defendant proves that the plaintiff is not

entitled to any special notice as alleged?

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16)Whether the defendant proves that in plaintiff’s case they

followed all the necessary procedure as alleged?

17)Whether the defendant proves that this Court has no

jurisdiction to try this suit?

18)What order and what decree?’

8. After considering the evidence, oral and documentary, and the

arguments of both sides, the Trial Court answered Issue Nos. 1,2,3,4,5,7,

8,9 and 11A in the affirmative and Issue Nos. 6,10,11,12,13,14,15,16 and

17 in the negative. Significantly, the Corporation adduced no oral or

documentary evidence. As regards Issue Nos. 4 and 5, pertaining to the

offer and allotment of Final Plot No. 187, admeasuring 2278 sq. mts., the

Trial Court noted that Resolution dated 15.10.1986 was passed by the

Town Planning Committee, in which it was stated that in the place of Final

Plot No. 463, it was advised that the same area in Final Plot No. 187 is to

be allotted. The Trial Court also noted the Resolution passed by the

Corporation on 30.10.1986 that the plaintiffs would be allotted the same

area of land which was earlier allotted in Final Plot No. 463. The Trial

Court further noted the correspondence thereafter, which reflected that

Final Plot No. 187 was being allotted to the plaintiffs and that the change

of allotment of plots resulted in a reduction of 974 sq. mts. of land. The

Trial Court accordingly answered Issue Nos. 4 and 5 in the affirmative. As

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regards Issue No. 6, pertaining to the compensation for the reduced area

of 974 sq. mts., the Trial Court noted that though the plaintiffs pleaded

that, in the year 1991 the value of the land in Paldi area was about

₹6000/- per sq. mt., they did not produce a single document or

corroborative evidence to prove that fact. The issue was, therefore,

answered in the negative.

9. As regards Issue Nos. 8 and 9 as to whether the compensation

@ ₹25/- per sq. mt. was merely an eye wash and whether the plaintiffs

suffered huge monetary losses, the Trial Court noted that Final Plot No.

187 had been allotted to the plaintiffs in the place of Final Plot No. 463,

which was initially allotted to them in the year 1963 and for which the rate

was shown as ₹25/- per sq. mt. The Trial Court noted that 33 years after

the allotment of Final Plot No. 463, Final Plot No. 187 was handed over to

the plaintiffs in January, 1996, and the same rate of ₹25/- per sq. mt. was

adopted for the compensation. The Trial Court, accordingly, agreed with

the plaintiffs that the said rate was meagre and, therefore, the

compensation offered at that rate was merely an eye wash. As Final Plot

No. 187 was handed over to the plaintiffs 33 years after the allotment of

the first plot and as Paldi area could be considered a posh area, the Trial

Court affirmed that the plaintiffs had suffered monetary loss by the

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deprivation of the benefit of enjoying the property since 1963. Issue Nos.

8 and 9 were accordingly answered in the affirmative.

10. As the plaintiffs failed to adduce evidence in support of their

claim as to the market value of the land but as they had proved that the

Corporation failed to allot the remaining extent of 974 sq. mts. due to total

negligence, they were held entitled to get that extent of land. Issue Nos.

10 and 11 were answered in the negative but Issue No. 11A was

answered in the affirmative. Issue No. 12, pertaining to the maintainability

of the suit, was answered in favour of the plaintiffs and in the negative.

11. Issue Nos. 13,14,15,16 and 17 were taken up together and the

Trial Court answered all of them also in the negative. As regards the bar

under Section 105 of the Act of 1976, the Trial Court opined that this

provision was not intended to protect injustice caused to the parties and

as the Corporation had failed to provide the second final plot till the year

1996 and the same was given with a short fall in area and with meagre

compensation therefor, the said actions were not in good faith and the

statutory provision would not protect the Corporation.

12. The Trial Court, accordingly, decreed the suit by accepting the

alternative prayer made by the plaintiffs that they should be allotted an

extent of 974 sq. mts. in any Town Planning Scheme in the western zone

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of Ahmedabad, but rejected the main prayer for compensation of

₹1,63,97,673/- with interest thereon. The plaintiffs were, however,

directed to repay the amount of compensation received by them @ ₹25/-

per sq. mt. for the extent in question.

13. Assailing the aforestated judgment and decree, the Corporation

preferred the subject first appeal before the High Court while the plaintiffs

filed their cross-objection therein, apropos the rejection of their main

prayer for compensation to the tune of 1,63,97,673/-. Before doing so,

₹

the plaintiffs deposited 24,350/-, being the amount awarded towards

₹

compensation for 974 sq. mts. of land @ 25/- per sq. mt., as directed by

₹

the Trial Court. Thereafter, by the impugned judgment, the High Court

held in favour of the Corporation by allowing its appeal and against the

plaintiffs by rejecting their cross-objection.

14. Perusal of the impugned judgment reflects that the High Court

noted the contentions of both parties and then extracted the issues

framed by the Trial Court in extenso. The High Court, however, did not

frame the points that arose for determination in the appeal, in terms of

Order 41 Rule 31 CPC. The High Court then referred to the arguments

advanced on behalf of the parties and started the discussion on merits

from para 5.1 of the judgment. The High Court observed that

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compensation had been paid for the shortfall of 974 sq. mts. @ 25/- per

₹

sq. mt. and noted that it was not in dispute that the said compensation

amount had been accepted without protest. The High Court also noted

that the plaintiffs had not challenged the second varied Town Planning

Scheme No. 6, Paldi, under which they were allotted Final Plot No. 187,

admeasuring 2278 sq. mts., in lieu of the originally allotted Final Plot No.

463, admeasuring 3890 sq. yds. The High Court also took note of the fact

that the plaintiffs supported the second varied scheme before the Division

Bench of the High Court in Special Civil Application No. 3980 of 1992 and

concluded that they could not make out a grievance with regard to the

non-delivery of the remaining 974 sq. mts. of land.

15. Reference was made by the High Court to Section 71 of the Act

of 1976, which allowed variation of a Town Planning Scheme and it was

held that any right with respect to the remaining 974 sq. mts., on the

basis of the original Town Planning Scheme No. 6, Paldi, no longer

remained in existence after such variation. The High Court, accordingly,

held that the Trial Court had erred in directing the Corporation to allot 974

sq. mts. of land in any other scheme in the western zone of Ahmedabad.

The High Court also took note of the fact that the Trial Court had opined

that the compensation paid to the plaintiffs for the shortfall of 974 sq. mts.

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@ 25/- per sq. mt. was inadequate, which had led to the direction to the

₹

Corporation to allot an equivalent extent of land in any other Town

Planning Scheme, while directing the plaintiffs to return the amount of

compensation paid to them. The High Court, thereupon, observed that

once the plaintiffs accepted Final Plot No. 187 and the compensation for

the 974 sq. mts. of land @ 25/- per sq. mt. under the second varied

₹

Town Planning Scheme, No. 6, Paldi, without protest, it was not open to

the Trial Court to pass any order which would tantamount to further

varying the scheme when it was not even challenged by the plaintiffs.

16. As regards the inaction on the part of the Corporation in handing

over vacant possession of Final Plot No. 463, the High Court observed

that once the original Town Planning Scheme was varied, it was not open

to the plaintiffs to assert any grievance in relation to the plot allotted to

them under that scheme. As regards the inadequacy of compensation,

the High Court held that the Trial Court could not have gone into that

issue as no appeal was preferred by the plaintiffs under Section 54 of the

Act of 1976, if they were unhappy with the quantum of compensation.

17. Insofar as the cross-objection filed by the plaintiffs is concerned,

the High Court noted that the Trial Court had not accepted their prayer to

award them compensation of 1,63,97,673/- as they had failed to prove,

₹

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by leading evidence, that at the relevant time in 1963 the market price of

the land was 150/- per sq. mt. The High Court further held that it was

₹

not open to them to claim any damages, having accepted the smaller plot

allotted to them under the varied scheme and the compensation for the

shortfall of 974 sq. mts. @ 25/- per sq. mt. without protest. The High

₹

Court, accordingly, concluded that the cross-objection deserved to be

dismissed. It is on this basis that the High Court allowed the first appeal

filed by the Corporation and dismissed the cross-objection of the

plaintiffs.

18. Before we proceed further, it would be apposite to take note of

the statutory milieu pertinent to this case and the case law relevant

thereto. Chapter 5 of the Act of 1976 is titled ‘Town Planning Schemes’

and comprises Sections 40 to 76. Section 40 deals with the making and

the contents of a Town Planning Scheme and empowers the appropriate

authority to make one or more Town Planning Scheme(s) for a

development area. Section 40(3) states that a Town Planning Scheme

may make provision for the matters enumerated in clauses (a) to (m)

thereunder. Clause (jj) therein was, however, substituted with effect from

01.05.1999. Clause (a) refers to laying out or re-laying out of land, either

vacant or already built upon, while clause (d) relates to the construction,

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alteration and removal of buildings, bridges and other structures. Clause

(e) relates to the allotment or ear-marking of land for roads, open spaces,

gardens, recreation grounds, schools, markets, green-belts, dairies,

transport facilities and public purposes of all kinds. Section 41 requires

the appropriate authority, in consultation with the Chief Town Planner, to

declare its intention to make a Town Planning Scheme in respect of a

particular area and, within 21 days from the date of such declaration,

publish the same in the prescribed manner and dispatch a copy thereof to

the State Government, along with a plan showing the area which it

proposes to include in the Town Planning Scheme. A copy of such plan

shall be open to public inspection at the office of the appropriate authority.

Section 42 deals with the making and publication of a draft scheme and

states that, within 9 months from the date of declaration of intention under

Section 41, the appropriate authority shall make a draft scheme of the

area in respect of which the said declaration was made and publish the

same in the Official Gazette along with the draft regulations for carrying

out the provisions of the scheme. Section 44 details the contents of the

draft scheme and provides that it should contain the particulars

enumerated under Clauses (a) to (h). Clause (a) pertains to the area,

ownership and tenure of each original plot while clause (b) relates to the

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particulars of land allotted or reserved under Section 40(3)(e). Clause (c)

relates to the extent to which it is proposed to alter the boundaries of the

original plot and clause (e) requires a full description of all the details of

the scheme under Section 40(3), as may be applicable.

19. Section 45 of the Act of 1976 pertains to the reconstitution of

plots and Section 45(1) states that, in the draft scheme referred to in

Section 44, the size and shape of every plot shall be determined, so far

as may be, to render it suitable for building purposes and where the plot

has already been built upon, to ensure that the building, as far as

possible, complies with the provisions of the scheme as regards open

spaces. Section 45(2) states that, for the purposes of sub-section (1), the

draft scheme may contain proposals as to the details mentioned under

clauses (a) to (e). This provision reads as under: -

‘(2) For the purposes of sub-section (1), the draft scheme may

contain proposals-

(a)to form a final plot by the reconstitution of an original plot by

the alteration of its boundaries, if necessary;

(b)to form a final plot from an original plot by the transfer of

any adjoining lands;

(c)to provide with the consent of the owners that two or more

original plots which are owned by several persons or owned by

persons jointly be held in ownership in common as a final plot,

with or without alteration of boundaries;

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(d)to allot a final plot to any owner dispossessed of land in

furtherance of the scheme; and

(e)to transfer the ownership of a plot from one person to

another.’

20. Section 47 of the Act of 1976 provides for objections being

raised against the draft scheme and states that such objections are to be

made in writing within one month from the date of publication of the draft

scheme and the same should be considered by the appropriate authority.

Further, before submitting the draft scheme to the State Government, the

appropriate authority may modify the scheme as it thinks fit. Section 48

empowers the State Government to sanction the draft scheme. Section

50 requires the State Government to appoint a Town Planning Officer

within one month from the date on which the draft scheme has been

sanctioned and notified in the Official Gazette and the duties of such

Town Planning Officer are set out in Section 51. Thereunder, the Town

Planning Officer is required, within twelve months from the date of his

appointment, to sub-divide the Town Planning Scheme into a preliminary

scheme and a final scheme, following the prescribed procedure. Section

52 details the contents of the preliminary and final schemes. Insofar as a

preliminary scheme is concerned, the Town Planning Officer is required,

under Section 52(1), to give notice in the prescribed manner to the

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persons affected by the scheme and define and demarcate the areas

allotted to or reserved for a public purpose or for the purpose of the

appropriate authority and the final plots. Under Section 52(1)(iii), the

Town Planning Officer is empowered to provide for the total or partial

transfer of any right in an original plot to a final plot or provide for the

transfer of any right in an original plot in accordance with the provisions of

Section 81. Section 52(2) requires the Town Planning Officer to submit

the preliminary scheme so prepared to the State Government for sanction

and to, thereafter, prepare and submit to the State Government the final

scheme in accordance with the provisions of Section 52(3).

21. In the said final scheme, the Town Planning Officer is required,

under Section 52(3), to fix the difference between the total of the values

of the original plots and the total of the values of the plots included in the

scheme, in accordance with the provisions of Section 77(1)(f). Under

Clause (iii) of Section 52(3), the Town Planning Officer is required to

estimate the sums payable as compensation on each plot used, allotted

or reserved for a public purpose or for the purpose of the appropriate

authority, which is beneficial partly to owners or residents within the area

of the scheme and partly to the general public, which shall be included in

the costs of the scheme. Clauses (iv) to (ix), thereafter, deal with the

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Town Planning Officer’s power to calculate and determine the contribution

to be made by the plot owners in relation to the plots used, allotted or

reserved for public purposes or for the purpose of the appropriate

authority which is beneficial partly to the owners or residents within the

area of the scheme and partly to the general public. This would also

include the calculation of the contribution to be levied on each plot owner

under the final scheme. Section 52(3)(x) requires the Town Planning

Officer to estimate, with reference to claims made before him, after giving

due notice in the prescribed manner and form, the compensation to be

paid to the owner of any property or right injuriously affected by the

making of the Town Planning Scheme, in accordance with the provisions

of Section 82. Section 54 provides for an appeal against any decision of

the Town Planning Officer under Section 52(3)(iii), (iv), (vi), (vii), (viii) and

(x) which are to be communicated forthwith to the party concerned and

such party, if aggrieved thereby, is entitled to file an appeal within one

month from the date of such communication before the Board of Appeal,

constituted under Section 55. Section 67(a) refers to the effect of a

preliminary scheme and states that, on the day on which the preliminary

scheme comes into force, all lands required by the appropriate authority

shall, unless it is otherwise determined in such scheme, vest absolutely in

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the appropriate authority, free from all encumbrances. Section 67(b)

states that upon the preliminary scheme coming into force, all rights in

the original plots, which have been reconstituted into final plots, shall

determine and the final plots shall become subject to the rights settled by

the Town Planning Officer. Section 68 empowers the appropriate authority

to summarily evict any person continuing to occupy land which he is not

entitled to occupy under the preliminary scheme, in accordance with the

prescribed procedure, after such preliminary scheme comes into force.

Section 70 empowers the appropriate authority to apply in writing to the

State Government for variation of the preliminary or final scheme after it

has come into force, if the said authority considers that the scheme is

defective on account of an error, irregularity or informality. Section 71 is

titled ‘Variation of Town Planning Scheme by another scheme’. It begins

with a non-obstante clause and reads as under: -

‘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 by a subsequent

scheme made, published and sanctioned in accordance with the

provisions of this Act.’

]

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22. Section 81 is titled ‘Transfer of right from original to final plot or

extinction of such right’ and states that any right in an original plot which,

in the opinion of the Town Planning Officer, is capable of being

transferred wholly or in part, without prejudice to the making of a Town

Planning Scheme, to a final plot shall be so transferred and any right in

an original plot which, in the opinion of the Town Planning Officer, is not

capable of being so transferred, shall be extinguished. Section 82 is titled

‘Compensation in respect of property or right injuriously affected by the

scheme’ and states that the owner of any property or right which is

injuriously affected by the making of a Town Planning Scheme shall, if he

makes a claim before the Town Planning Officer within the prescribed

time, be entitled to be compensated in respect thereof by the appropriate

authority or by any person benefited or partly by the appropriate authority

and partly by such person, as the Town Planning Officer may in each

case determine. The proviso thereunder states that the value of such

property or right shall be deemed to be its market value on the date of

declaration of the intention to make a scheme or the date of the

notification issued by the State Government under Section 43(1) without

reference to improvements contemplated in the scheme, as the case may

be. Section 84 deals with cases in which the amount payable to the

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owner exceeds the amount due from him and states that, if the owner of

an original plot is not provided with a plot in the preliminary scheme or if

the contribution to be levied on him under Section 79 is less than the total

amount to be deducted therefrom under any of the provisions of the Act

of 1976, the net amount of his loss shall be payable to him by the

appropriate authority in case or in such other manner as may be agreed

upon by the parties. Section 105 is titled ‘Bar of legal proceedings’ and

states that no suit, prosecution or other legal proceeding shall lie against

the State Government, the appropriate authority or any public servant or

person duly appointed or authorized under the Act of 1976 in respect of

anything in good faith done or purported to be done under the provisions

thereof or any rules or regulations made thereunder.

23. Section 118 of the Act of 1976 empowers the State Government

to make rules consistent with the provisions of that statute to carry out the

purposes thereof. In exercise of such power, the Gujarat Town Planning

and Urban Development Rules, 1979, were framed. Rule 16 thereof

prescribes the procedure to be followed for publication of the declaration

under Section 41 of the Act of 1976. Rule 17 states that, for the purpose

of making the draft scheme under Section 42 of the Act of 1976, the

appropriate authority shall call a meeting or meetings of the owners of the

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lands included in the Town Planning Scheme, by a public notice as well

as by individual notice to every owner whose address is known to the

appropriate authority, and explain in such meeting the tentative proposals

of the draft scheme for eliciting public opinion and suggestions on the

said proposals. Thereafter, the appropriate authority is empowered to

take into consideration all such suggestions and objections raised on the

proposals for making the draft scheme under Section 42. Rule 26 details

the procedure to be followed by the Town Planning Officer under Sections

51 and 52(1) of the Act of 1976. Rule 26(1) requires the Town Planning

Officer to give notice in Form H of the date on which he would commence

his duties for preparing the preliminary scheme and final scheme and he

shall also state the time within which the owner of any property or right

which is injuriously affected by the making of the scheme, who would be

entitled under Section 82, to make a claim for compensation before him.

Under Rule 26(4), the Town Planning Officer is required to give every

person, interested in any land affected by a scheme, sufficient opportunity

of stating their views and not give a decision till he has duly considered

their representations, if any. Rule 37 states that a claim under Section 82

shall be made within three months from the date fixed in the notice given

under Rule 26(1).

24

24. Now, a quick recce of precedential thought on the Act of 1976

and the like. In State of Gujarat vs. Shantilal Mangaldas and others

1

, a

Constitution Bench had occasion to consider the provisions of the

Bombay Town Planning Act, 1955. The provisions of that enactment were

earlier applicable in the State of Gujarat and are in pari materia with

those of the Act of 1976. Section 53 of the Bombay Town Planning Act,

1955, provided that all lands required by the local authority shall, on the

day on which the final scheme comes into force, vest absolutely in the

local authority free from all encumbrances, unless it is otherwise

determined in such scheme, and that all rights in the original plots which

have been reconstituted shall determine and the reconstituted plots shall

become subject to the rights settled by the Town Planning Officer. In

effect, this provision is identical to Section 67 of the Act of 1976. The

argument advanced in that case before the High Court, which had found

favour with it in holding Section 53 ultra vires, was that when a plot is

reconstituted and out of that plot, a smaller area is given to the owner and

the remaining area is utilized for a public purpose, the area so utilized

vests in the local authority but as the Act did not provide for giving

compensation, which is a just equivalent of the land expropriated on the

date of extinction of interest, the guaranteed right under Article 31(2) of

1

(1969) 1 SCC 509

25

the Constitution stood infringed. Negating this contention, the Constitution

Bench held that Section 53 did not provide that a reconstituted plot is

transferred or is deemed to be transferred from the local authority to the

owner of the original plot, as it provides for statutory readjustment of the

rights of the owners of the original plots of land. The Bench pointed out

that when the scheme comes into force, all rights in the original plots

stand extinguished and, simultaneously therewith, ownership springs in

the reconstituted plots. Noting that there is no vesting of original plots in

the local authority nor transfer of the rights of the local authority in the

reconstituted plots, the Bench observed that a part or even the whole plot

belonging to an owner may go to form a reconstituted plot which may be

allotted to another person or may be appropriated to public purposes

under the scheme. The Bench further observed that the source of the

power to appropriate the whole or a part of the original plot in forming a

reconstituted plot is statutory and it does not predicate ownership of the

plot in the local authority and no process - actual or notional - of transfer

is contemplated in that appropriation. The Bench ultimately held that the

concept that lands vest in the local authority when the intention to make a

scheme is notified is against the plain intendment of the Act. Significantly,

while considering the provision in the Bombay Town Planning Act, 1955,

26

pertaining to the method of adjustment of contribution against

compensation receivable by an owner of land, viz., Section 67, the Bench

noted that the said provision states that the difference between the

market value of the plot, with all the buildings and works thereon, on the

date of declaration of the intention to make a scheme and the market

value of the plot as reconstituted on the same day and without reference

to the improvements contemplated in the scheme, is to be the

compensation due to the owner and in the event the owner of the original

land is not allotted a plot at all, he shall be paid the value of the original

plot on the date of declaration of the intention to make a scheme.

25. In Prakash Amichand Shah vs. State of Gujarat and others

2

,

another Constitution Bench again dealt with the provisions of the Bombay

Town Planning Act, 1955. It was observed therein that, on the final

scheme coming into force, the lands affected by the said scheme which

are needed by the local authority for the purposes of the scheme

automatically vest in the local authority and there is no need to set in

motion the provisions of the Land Acquisition Act, 1894. The Bench

pointed out that the Town Planning Officer is authorized to determine

whether any reconstituted plot can be given to a person whose land is

affected by the scheme, as all rights of private owners in the original plots

2

(1986) 1 SCC 581

27

would determine and certain consequential rights in favour of the owners

would arise therefrom. The Bench noted that, if reconstituted or final plots

are allotted to them in the scheme, they become owners of such final

plots, subject to the rights settled by the Town Planning Officer in the final

scheme, and in some cases the original plot of an owner might be

completely allotted by the local authority for a public purpose and such

private owner may be paid compensation or given a reconstituted plot in

some other place. Significantly, it was noted that such a reconstituted plot

may be a smaller or a bigger plot and, in some cases, it may not be

possible to allot a final plot at all. Reference was made to the provisions

of the said Act, which provided for certain financial adjustments regarding

payment of money to the local authority or to the owners of the original

plots and it was noted that the development and planning carried out

under the Act is primarily for the benefit of the public and the local

authority is under an obligation to function according to the Act and bear

a part of the expenses of the development. The Bench observed that, in

one sense, it is a package deal.

26. In Ahmedabad Municipal Corporation and another vs.

Ahmedabad Green Belt Khedut Mandal and others

3

, a 3-Judge Bench

of this Court considered the provisions of the Act of 1976. It was

3

(2014) 7 SCC 357

28

observed that the provisions of the Act of 1976, read conjointly, give a

clear picture that the Town Planning Scheme is just like consolidation

proceedings as the land belonging to various persons is first put into a

pool and then allocated for different purposes and, in such a way, after

having all deductions, the loss and profit of individual tenure-holders is to

be calculated. It was noted that a Town Planning Scheme would provide

for pooling the entire land covered by the scheme and, thereafter,

reshuffling and reconstituting of plots and the market value of the original

plots and final plots is to be assessed and the authority has to determine

as to whether a land owner has suffered some injury or has gained from

such process. It was also pointed out that reconstitution of plots is

permissible, as provided under the scheme of the Act and as is evident

from a reading of Sections 45(2)(a),(b),(c) and Section 52(1)(iii), in

accordance with Section 81 of the Act of 1976. The Bench observed that,

if by reconstitution of the plots, anybody suffers injury, the statutory

provisions provide for compensation under Section 67(b) read with

Section 82 of the Act of 1976. It was further noted that, by such

reconstitution and readjustment of plots, there is no vesting of land in the

local authority and the Act of 1976 provides for payment of non-monetary

compensation and that mode was approved by the Constitution Bench in

29

Shantilal Mangaldas (supra), wherein this Court held that when the

scheme comes into force, all rights in the original plots are extinguished

and, simultaneously therewith, ownership springs in the reconstituted

plots. Reference was also made to Maneklal Chhotalal and others vs.

M.G. Makwana and others

4

, wherein it was observed that, even if an

original plot owner is allotted a smaller extent of land in the final plot and

has to pay certain amount as contribution, having regard to the scheme

and its objects, it is inevitable and would not amount to deprivation. The

3-Judge Bench, accordingly, observed that it is evident that in case a land

owner is not provided with a final plot, the amount of his loss would be

payable to him as required under Section 82 of the Act of 1976. Again

referring to Shantilal Mangaldas (supra), it was noted that there is no

necessity to acquire the land as the title of the owners is readjusted upon

the scheme being sanctioned and the lands required for any of the

purposes of the scheme need not be acquired otherwise than under the

Act, for it is a settled rule of interpretation of statutes that when power is

given thereunder to do a certain thing in a certain way, the thing must be

done in that way or not at all.

27. This being the legal position vis-à-vis the Act of 1976, it was

contended before us by the plaintiffs that the impugned judgment of the

4

AIR 1967 SC 1373

30

High Court is liable to be set aside on the short ground that no points for

determination were framed therein, as required by Order 41 Rule 31

CPC. Reliance was placed on Malluru Mallappa (Dead) through Lrs. vs.

Kuruvathappa and others

5

, wherein this Court observed that the first

appellate Court is required to set out the points for determination, record

the decision thereon and give its own reasoning. It was further observed

that, even when the said Court affirms the judgment of the Trial Court, it

has to comply with the requirements of Order 41 Rule 31 CPC as

non-observance thereof would lead to an infirmity in its judgment.

However, it may be noted that no absolute proposition was laid down

therein to the effect that failure to frame points for determination, in itself,

would render the first appellate Court’s judgment invalid on that ground.

28. Reference was also made to Santosh Hazari vs. Purushottam

Tiwari (Deceased) by LRs

6

, wherein this Court held that a first appeal is a

valuable right and unless restricted by law, the whole case would be open

for rehearing before it, both on questions of fact and law, and, therefore,

the judgment of the first appellate Court must reflect conscious

application of mind and it must record findings supported by reasons on

all the issues arising, along with the contentions put forth and pressed by

5

(2020) 4 SCC 313

6

(2001) 3 SCC 179

31

the parties for decision of the said Court. It was further observed that,

while reversing a finding of fact, the first appellate Court must come into

close quarters with the reasoning of the Trial Court and then assign its

own reasons for arriving at a different finding. This, per this Court, would

satisfy the requirement of Order 41 Rule 31 CPC.

29. However, in Laliteshwar Prasad Singh and others vs. S.P.

Srivastava (Dead) thru. Lrs.

7

, this Court, while affirming the aforestated

principles, observed that it is well settled that the 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.

30. 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. In this regard, useful

reference may be made to G. Amalorpavam and others vs. R.C.

Diocese of Madurai and others

8

, wherein this Court held as under: -

‘9. The question whether in a particular case there has been

substantial compliance with the provisions of Order 41 Rule 31 CPC has

7

(2017) 2 SCC 415

8

(2006) 3 SCC 224

32

to be determined on the nature of the judgment delivered in each case.

Non-compliance with the provisions may not vitiate the judgment and

make it wholly void, and may be ignored if there has been substantial

compliance with it and the second appellate court is in a position to

ascertain the findings of the lower appellate court. It is no doubt desirable

that the appellate court should comply with all the requirements of Order

41 Rule 31 CPC. But if it is possible to make out from the judgment that

there is substantial compliance with the said requirements and that

justice has not thereby suffered, that would be sufficient. Where the

appellate court has considered the entire evidence on record and

discussed the same in detail, come to any conclusion and its findings are

supported by reasons even though the point has not been framed by the

appellate court there is substantial compliance with the provisions of

Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by

the absence of a point of determination. Where there is an honest

endeavour on the part of the lower appellate court to consider the

controversy between the parties and there is proper appraisement of the

respective cases and weighing and balancing of the evidence, facts and

the other considerations appearing on both sides is clearly manifest by

the perusal of the judgment of the lower appellate court, it would be a

valid judgment even though it does not contain the points for

determination. The object of the rule in making it incumbent upon the

appellate court to frame points for determination and to cite reasons for

the decision is to focus attention of the court on the rival contentions

which arise for determination and also to provide litigant parties

opportunity in understanding the ground upon which the decision is

founded with a view to enable them to know the basis of the decision and

if so considered appropriate and so advised to avail the remedy of

second appeal conferred by Section 100 CPC.’

33

31. As already noted hereinabove, the 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, we do not find that any particular issue that was

considered by the Trial Court was left out by the High Court while

adjudicating the appeal. In effect, we do not find 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.

32. As regards the merits of the matter, we may note that though the

father of the plaintiffs was allotted Final Plot No. 463, admeasuring 3890

sq. yds./3252 sq. mts. in the original Town Planning Scheme No. 6, Paldi,

in the year 1963, possession thereof could not be delivered to him as it was

occupied by slum dwellers. It was only in the second variation of Town

Planning Scheme No. 6 in August, 1986, that Final Plot No. 187 was

allotted to the plaintiffs in lieu of Plot No. 463 and it had a smaller area by

974 sq. mts. Reliance was placed by the plaintiffs upon the resolutions

passed by the Town Planning Committee in its meeting held on 15.10.1986

and the Corporation in its general board meeting held on 30.10.1986

respectively to contend that it was the intention of the authorities concerned

to allot the same area as in Final Plot No. 463 to them. However, we find

34

from the resolutions in question that Final Plot No. 187 was specifically

mentioned therein and the intention was that this plot should be allotted to

the plaintiffs. It is an admitted fact that this final plot was part of the original

Town Planning Scheme No. 6, Paldi, and it was always of the same area,

i.e., 2724 sq. yds/2278 sq. mts. Therefore, the mere use of the words

‘same area’ or ‘equal area’ in the resolutions had no impact as those words

were used in juxtaposition to Final Plot No. 187 and the area of the said

plot must have been within the knowledge of all concerned as on the dates

of the resolutions, given the statutory scheme of transparency.

33. Further, though so much stress was laid by the plaintiffs upon the

resolutions passed by the authorities in the year 1986 to contend that the

‘same area’ was to be allotted to them in lieu of Plot No. 463, we may note

that this mistaken impression, if at all entertained by the plaintiffs, despite

the clear mention of Final Plot No. 187 in those resolutions and their own

knowledge of the details of the scheme, stood dispelled in April, 1995. They

were parties to the public interest litigation initiated in Special Civil

Application No. 3980 of 1992 before a Division Bench of the High Court of

Gujarat at Ahmedabad. The challenge therein was to the allotment of Final

Plot No. 187 to them on the ground that the said plot was meant for a

public purpose. The plaintiffs were respondent Nos. 4 and 5 in Special Civil

35

Application No. 3980 of 1992. In the judgment rendered therein on

03/04.04.1995, the Division Bench observed that Final Plot No. 187 was to

be given to the plaintiffs instead of Final Plot No. 463 which was larger. The

Division Bench further observed that it was they who appeared to have lost

in the bargain, because the plot of land which was now being offered to

them, viz., Plot No. 187, was nearly 1200 sq. yds. lesser than Plot No. 463

and the only advantage which they got was that Plot No. 187 was free from

encumbrance. Nearly nine months later, Final Plot No. 187 was actually

delivered to the plaintiffs. However, in the interregnum, they raised no

objection or grievance as to the reduction in the plot size and quietly waited

for delivery of Final Plot No. 187. It is also an admitted fact that, shortly

thereafter, in the year 1998, the plaintiffs sold the said plot to

J.K. Cooperative Housing Society Limited.

34. The failure of the Corporation in handing over vacant possession

of Plot No. 463 was also subjected to attack, but we find that when the said

allotment was modified by the second variation of Town Planning Scheme

No. 6, Paldi, in the year 1986, whereby the plaintiffs were allotted Final Plot

No. 187 which was of a lesser area, they silently accepted the same and

did not choose to either seek implementation of the original scheme,

whereunder they were allotted a larger plot, or challenge the varied

36

scheme, whereby they were given a smaller plot. Having accepted the plot

allotted to them upon variation of the scheme without demur or protest, the

plaintiffs cannot now seek to reopen the negligence and delay, if any, on

the part of the Corporation prior to such variation. Further, as is evident

from the edicts laid down by this Court, referred to supra, upon the

preparation or variation of a Town Planning Scheme, the rights in the earlier

plots of land would stand extinguished. That being so, such rights, if any,

which have become extinct cannot be the basis for a later cause of action.

35. No doubt, even in 1986, when Final Plot No. 187 was allotted to

the plaintiffs, it was not free of occupation as it had been given to Pulkit

Trust for utilization as a playground. Even if this action on the part of the

Corporation is held to be not in good faith, it would only entail a claim for

compensation or damages, but as noted by the Trial Court as well as the

High Court, the plaintiffs did not choose to adduce any evidence in support

of their claim for the quantified damages of 1,63,97,673/-. No document

₹

was produced by the plaintiffs in proof of the price of land in Paldi area

being 150/- per sq. yd. in the year 1963. Though reference was made to

₹

the decision of this Court in Union of India and another vs. Smt. Shanti

Devi and others

9

in the context of a return of 10% p.a. being anticipated

from investment in land and a multiplier of 13% being adopted for the

9

(1983) 4 SCC 542

37

purpose of capitalization, this method of calculation would have had

meaning had the value of the land in the present case at the relevant point

of time been determined. However, as the plaintiffs did not adduce any

evidence whatsoever in proof of their claim as to the market value of the

land in question at the relevant point of time, this judgment does not further

their case, insofar as their claim for compensation/damages is concerned.

Reference to N. Nagendra Rao and Co. vs. State of A.P.

10

, in support of

the plaintiffs’ claim for compensation owing to the negligence of the

authorities is also of no avail as the principles contained therein would have

had application if the plaintiffs’ claim for damages/compensation was duly

supported by material evidence, which it is not.

36. Further, though it has been contended before us that the plaintiffs

never actually received the compensation offered by the Corporation for the

shortfall of 974 sq. mts. @ 25/- per sq. yd., it is an admitted fact that,

₹

pursuant to the judgment and decree of the Trial Court, the plaintiffs did

deposit the sum of 24,350/-, being the compensation for 974 sq. mts. @

₹

25/- per sq. mt., as directed by the Trial Court. Had it been their case that

₹

they did not receive such compensation, they ought not to have abided by

the direction of the Trial Court and deposited that amount. This voluntary

act on their part precludes them from contending, at this stage, that the

10

(1994) 6 SCC 205

38

said compensation was never paid to them and that they had deposited the

amount as it was only a paltry sum.

37. The further argument of the plaintiffs that the Act of 1976 does not

contemplate a second reduction in the reconstituted plot area does not

merit acceptance. Section 45 of the Act of 1976 deals with reconstitution of

plots and it is a settled legal position, per the decisions of this Court in

Prakash Amichand Shah and Ahmedabad Green Belt Khedut Mandal,

referred to hereinabove, that 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 No. 6, Paldi, with a deduction of

21.40%.

38. Though it has been contended on behalf of the plaintiffs that

variation of the Town Planning Scheme as permitted under Sections 70 and

39

71 of the Act of 1976 must be read together, we find 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. Reference in this regard may be made to the Division Bench

judgment of the Gujarat High Court in Bhupendra Kumar Ramanlal and

others vs. State of Gujarat and others

11

, wherein It was held that Section

11

(1995) 1 GLH 1124 = (1996) AIHC 109

40

71 of the Act of 1976 provides for the procedure laid down in the Act of

1976 for making a Town Planning Scheme being followed for the purpose

of varying a sanctioned scheme. We are in complete and respectful

agreement with the above view expressed by the High Court.

39. Viewed thus, we find that the plaintiffs, being well aware of the fact

that Final Plot No. 187 allotted to them under the second varied Town

Planning Scheme No. 6, Paldi, 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. In this regard, we may also note that Section 52 deals,

not only with the allotment of plots, but also the amount to be paid as

compensation. Section 52(3)(x) states that the Town Planning Officer shall

estimate, with reference to the claims made before him after notice has

been given by him in the prescribed manner and form, the compensation to

be paid to the owner of any property or right injuriously effected by the

making of the Town Planning Scheme in accordance with the provisions of

Section 82. Further, Section 54 provides an appellate remedy to the person

41

aggrieved by any decision of the Town Planning Officer under Section 52(3)

(x). In effect, 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 under Section 52(3)(x), was a decision which was

amenable to appellate review under Section 54. However, it is an admitted

fact that the plaintiffs did not avail such remedy.

40. We may also note that the plaintiffs’ main prayer in their suit was

for quantified compensation, which they had calculated on the strength of

the area of Final Plot No. 463 which could not be allotted to them, i.e., 3890

sq. yds., but their prayer, in the alternative, was for allotment of an extent of

land of 974 sq. yds., which was the shortfall in area when they were allotted

Final Plot No. 187 in the second varied scheme. In effect, the value of 3890

sq. yds. in Final Plot No. 463 in the original Town Planning Scheme was

equated by them to an extent of 974 sq. yds. in any Town Planning Scheme

in the western zone of Ahmedabad. Significantly, no evidence was led as to

the values of the two final plots, viz., Final Plot No. 463, admeasuring 3890

sq. yds., and Final Plot No. 187, admeasuring 2724 sq. yds. The monetary

value of these two plots would depend upon their situation, development,

proximity and access to the main road or highway, etc., and cannot be

surmised or estimated without relevant material being produced. It cannot

42

even be assessed as to whether they were of equal monetary value.

Therefore, the prayer of the plaintiffs for allotment of an extent of land

equivalent to the shortfall area of Final Plot No. 463 may not have been

logical as their values may not necessarily be commensurate or

comparable.

41. To sum up, having sought quantified damages of 1,63,97,673/-, it

₹

was incumbent upon the plaintiffs to adduce evidence in support of their

claim for this pre-determined sum. However, no evidence whatsoever was

produced by them in support of the land values relevant to any point in

time, be it of the original final plot or the final plot that was ultimately given

to them. In the absence of such crucial material, the plaintiffs’ prayer for

compensation necessarily had to be negated. 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.

42. On the above analysis, we are of the considered opinion that the

High Court was fully justified in allowing the first appeal filed by the

Corporation and non-suiting the plaintiffs in entirety. The impugned

judgment does not brook interference on any count.

43

The appeals are, therefore, bereft of merit and are accordingly

dismissed.

In the circumstances, parties shall bear their respective costs.

………………………..,J

(A.S. BOPANNA)

………………………..,J

(SANJAY KUMAR)

May 10, 2024;

New Delhi.

44