Gujarat High Court
Rameshbhai vs State on 14 June, 2012
Author: R.M.Chhaya
Bench: R.M.Chhaya
Gujarat High Court Case Information System
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SCA/6938/2012 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No.6938 of 2012
=====================================================
RAMESHBHAI
ISHWARBHAI TAILOR & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=====================================================
Appearance
:
MR DK PUJ for Petitioner(s) : 1 -
3.
MR RONAK RAVAL, AGP for Respondent(s) : 1 - 2.
MR KAUSHAL D
PANDYA for Respondent(s) :
3,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 14/06/2012
ORAL
ORDER
(1) By way of this petition, the petitioners have prayed for the following reliefs:
"(A)YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ, order and/or direction, quashing and setting aside the preliminary Town Planning Scheme no.28 (Althan-Bhatar), Surat qua the land belonging to the petitioners, viz. the land bearing original revenue Block no.247-paikai, which has been allotted original Plot no.79/B/3, being final plot no. 121, in the interest of justice.
(B) Alternatively, YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ, order and/or directions, directing the respondent authorities to give possession of actual land in place in final plot no. 121 of village Althan, in preliminary Town Planning Scheme no. 28 (Althan-Bhatar), Surat in lieu of the land belonging to the petitioners, viz. the land original block no. 247-paiki, which has been allotted original plot no.79/B/3, final plot no. 121, in the interest of justice.
(C) Pending admission hearing and till final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further proceedings of Town Planning Scheme no. 28 (Althan-Bhatar), Surat qua the land belonging to the petitioners, viz. the land original block no.
247-paiki, which has been allotted original plot no. 79/B/3, final plot no. 121, in the interest of justice.
(D) Pending admission hearing and till final disposal of the present petition, YOUR LORDSHIPS may be pleased to restrain the respondents, their officers, Agents and/or servants from forcibly taking possession of the land belonging to the petitioners, viz. the land original block no. 247-paiki, which has been allotted original plot no. 79/B/3, final plot no. 121, in the interest of justice.
(E) YOUR LORDSHIPS may be pleased to pass such other and/or further orders that may be deemed fit, just and proper in the interest of justice.
(2) Heard Mr.D.K.Puj, learned advocate for the petitioners, Mr.Ronak Raval, learned Assistant Government Pleader for respondent Nos.1 and 2, and Mr.Kaushal Pandya, learned advocate appearing for respondent No.3.
(3) The facts which can be carved out from the record of the petition are that the petitioners are the owners and occupiers of land being original Block No.247 paiki, Village Althan, Tal. Choryasi, Dist. Surat, which now forms part of the local limits of Surat Municipal Corporation (SMC). It appears from the record that respondent No.3, appropriate authority, declared its intention to prepare and publish Town Planning Scheme No.28 (Althan-Bhatar), Surat on 06.06.1995 as contemplated under Section 41(1) of the Gujarat Town Planning and Urban Development Act, 1976 (the Act). After following the procedure as prescribed under the Act and the Gujarat Town Planning and Urban Development Rules, 1979 (the Rules) the State Government sanctioned the said Draft Town Planning Scheme No.28 (Althan-Bhatar), Surat under Section 48(2) of the Act by Notification dated 30.07.1998.
(4) As averred by the petitioners in the petition the Town Planning Officer came to be appointed as contemplated under Section 50 of the Act. The Town Planning Officer after assuming duty prepared and formulated the said preliminary Town Planning Scheme after following the procedure as prescribed under the Rules and as contemplated under Section 52(1) of the Act. As averred by the petitioners the land belonging to the petitioners was given original Plot No.79/B/7 and by way of reconstitution in lieu of the aforesaid original plot the petitioners have been allotted Final Plot No.121. It appears that objections were raised by one of the owners of the original plot and on consideration of the same the Town Planning Officer submitted the said preliminary scheme so prepared and formulated to the State Government under Section 64 of he Act. The State Government thereafter sanctioned the said preliminary Town Planning Scheme as contemplated under Section 65(3) of the Act by a Notification dated 12.07.2010.
(5) On the preliminary scheme being sanctioned as aforesaid respondent No.3, as an implementing authority, issued a notice as contemplated under Section 67 of the Act for implementing the said Town Planning Scheme in relation to the land belonging to the petitioners. Thereafter a further notice has also been issued by respondent No.3 implementing authority as contemplated under Section 68 read with Rule 33 of the Rules dated 20.04.2012. Being aggrieved by the aforesaid action of respondent No.3, the petitioners have preferred the present petition.
(6) This Court (Coram: Rajesh H. Shukla, J) vide order dated 05.06.2012 passed the following order:
"Heard learned counsel, Mr.D.K. Puj for the petitioners and learned counsel, Mr.Kaushal Pandya for the respondent no.3.
In view of the order dated 24.05.2012, the matter is listed today. However, as there is no urgency in the matter, the matter is ordered to be posted on 12 th June, 2012, by which, the reply to the notice may be given by the petitioner if he so desires and till then, notice shall not be implemented."
(7) Mr.D.K.Puj, learned advocate for the petitioners, submitted that as per the aforesaid order the petitioners have now filed their reply to the aforesaid notice dated 20.04.2012.
(8) Considering the fact that the preliminary scheme has already been sanctioned by the State Government as contemplated under Section 65 of the Act vide Notification dated 12.07.2012 the said scheme has become part of the Act as envisaged under Section 65(3) of the Act. Learned advocate for the petitioners has not been able to justify and place on record any material which warrants interference by this Court in the scheme which is sanctioned after following due process of law and which has to become part of the act and, therefore, the prayers prayed for in Paragraph No.10(A) of the petition cannot be entertained.
(9) However, so far as the prayer prayed for in Paragraph No.10(B) of the petition is concerned, respondent No.3, being the implementing authority under the Act is bound to follow the procedure as prescribed under the Act. At this stage it would be advantageous to refer to the ratio laid down by the Apex Court in the case of M/s. Babubhai & Co. and Ors. Vs. State of Gujarat and Ors., 1985(2) G.L.R. 883, more particularly in Paragraph No.8 it is observed thus:
"8. In the instant case on an examination of the scheme of the Act as also the purpose sought to be achieved by Sec. 54 it will appear clear that the topic of making of town planning schemes is dealt with in secs. 21 to 53 while sec. 54 (and some of the following sections like 55 and 71 to 78) deal with the aspect of the execution of town planning scheme and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in their occupation has been conferred upon the Local Authority itself - a highly responsible body, and that the power is required to be exercised by it in objective manner (it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying lands which they are not entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by passing speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing matter extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non-germane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court. Having regard to these aspects, mere absence of corrective machinery by way of appeal or review would not in our view render the provisions invalid."
(10) In view of the aforesaid binding decision of the Apex Court respondent No.3, as the implementing authority being a quasi-judicial authority has to follow principles of natural justice before implementing the scheme and, therefore, respondent No.3-SMC is directed to follow the principles of natural justice before implementing the said scheme. Mr.Puj, learned advocate for the petitioners, further submits that while implementing the said scheme as per the notice dated 20.04.2010 respondent No.3 authority may be directed to demarcate the final plot which is so allotted to the petitioners as per the sanctioned preliminary Town Planning Scheme.
Learned advocate for the petitioners has relied upon the judgment of this Court (Coram: M. R. Shah, J) in case of Jiviben Hansrajbhai Patel wd/o. Hansrajbhai Devjibhai Patel Vs. State of Gujarat, Through Secretary, in Special Civil Application No.16550 of 2010 considering the aforesaid contentions raised by the learned advocate for the petitioners this Court in the aforesaid case in Paragraph No.10 has observed thus:
10. Therefore, under Final Town Planning Scheme "No.1, Jamnagar the owners of land bearing survey no.123 are entitled to occupy Final Plot Nos. 64, 68, 90 and 93 only which are allotted to them under the Final Town Planning Scheme No.1, Jamnagar and rest of the land out of the land bearing Survey No.123, which are now given Final Plot Nos. 73, 63, 65, 91 and 92, which are reserved for public purpose and for road, the original owners / occupiers are required to hand over the peaceful and vacant possession of the same to the appropriate authority. It appears that for implementing the Town Planning Scheme No.1, Jamnagar, which has become final, the respective occupiers were served with the notices under Section 68 r/w Rule 33 of the Gujarat Town Planning and Urban Development Act and Rules and they were called upon to hand over the peaceful and vacant possession of land bearing Survey No.123, which are given Final Plot Nos. 73, 63, 65, 91 and 92, which are reserved for public purpose and public road and at that stage two co-owners Keshavji Devjibhai Patel and Ravjibhai Devjibhai Patel petitioners of Special Civil Application No.7732 of 2008 have challenged the said notice by way of Special Civil Application No. 7806 of 1988on the ground that before issuing the notices under Section 68 r/w Rule 33 of the Act and Rules, the opportunity of being heard was not given to them and learned Single Judge of this Court by judgment and order dated 30.10.2006 passed in Special Civil Application No.7806 of 1988 directed the appropriate authority to give an opportunity of being heard to those persons, which was for the purpose of enforcement of the Town Planning Scheme No.1. Thereafter, the respective petitioners of the aforesaid Special Civil Applications were heard by the appropriate authority and thereafter the impugned order dated 8.5.2008 has been passed by the appropriate authority.
10.1. Considering the fact that the Town Planning Scheme has become final and the respective owners of original land bearing survey no.123 are allotted Final Nos.
64, 68, 90 and 93 total admeasuring 63688 sq.mtrs. of land and the rest of the land out of the land bearing Survey No.123 total admeasuring No. 33436.46 sq.mtrs. has been given Final Plot Nos.73, 63, 65, 91 and 92, the respective occupiers / original land owners of land bearing survey no.123 are required to hand over the peaceful and vacant possession of the Final Plot No. 73, 63, 65, 91 and 92, which are reserved for public purpose and the rights of the respective parties are to be determined as per the re-constitute plots under the Final Town Planning Scheme. Under the circumstances, it cannot be said that order passed by the appropriate authority dated 8.5.2008 is in any way illegal and / or contrary to the provision of law. The aforesaid notice has been issued for implementing of the Town Planning Scheme which has become final. Even as per the earlier order passed by this Court in Special Civil Application No.7806 of 1988, and as observed by the learned Single Judge the legality and validity of the Town Planning Scheme, which has become final, is not required to be considered at all and the hearing was required to be given only with respect to enforcement of scheme, which has become final. Under the circumstances, contentions and objections raised by the petitioners of Special Civil Application No.7732 of 2008 with respect to measurement of the original land bearing survey no.123 etc. cannot be considered at this stage now. Even considering the earlier order passed by this Court, legality and validity of the Town Planning Scheme was not required to be considered at all and it was only for the enforcement of the Town Planning Scheme. Under the circumstances, on the aforesaid ground and the objections raised by the petitioner of Special Civil Application No.7732 of 2008 the order passed by the appropriate authority dated 8.5.2008 is not required to be quashed and set aside.
11. xxx xxx xxx
12. In view of the above and for the reasons stated above, Special Civil Application No.16550 of 2010 is hereby disposed of with respect to prayers in terms of para 27 (a) only by directing the appropriate authority to demarcate the Final Plot Nos. 64, 68, 90 and 93 which are jointly allotted to the owners of land bearing Survey No.123 which are allotted to them under the Final Town Planning Scheme No.1, Jamnagar at the earliest but not later than four weeks from today. However, it is made clear that this Court has not expressed anything with respect inter se rights of the respective parties with respect to aforesaid land and same are to be determined by the appropriate forum/ Court as in lieu of original land bearing Survey No.123 the aforesaid Final Plot Nos. 64, 68, 90 and 93 are jointly allotted to the original owners of land bearing Survey No.123."
(11) Considering the Form No.F and the notice impugned in the present petition while hearing the petitioners as per the aforesaid directions respondent No.3-SMC is also further directed to demarcate part of the final plot, which the petitioners are entitled to as per the preliminary scheme.
(12) With these observations, the petition is disposed of. NOTICE discharged. There shall be no order as to costs. Direct service permitted.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Top