Gujarat High Court
Kishanbhai vs State on 10 February, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
SCA/26785/2007 61/ 61 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 26785 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
KISHANBHAI
HARGOVANDAS PATEL & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 5 - Respondent(s)
=========================================================
Appearance
:
MR.PRASHANT
DESAI, SR.COUNSEL WITH MR D K.PUJ
for
Petitioner(s):1-2.
MR M.R. MENGDEY ASST.GOVERNMENT PLEADER for
Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 4.
MR
PRAKASH K JANI for Respondent(s) : 4,
MR NAVIN PAHWA FOR M/S
THAKKAR ASSOC. for Respondent(s) : 5 -
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 10/02/2010
C.A.V.
JUDGMENT
By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order and/or directions quashing and setting aside the modification in the Preliminary Town Planning Scheme No.6 (Unja) QUA Original Plot No.207 Final Plot Nos.107, 224, 227 and 229, made by the respondents - State of Gujarat while exercising its powers as contemplated under sec.65(1)(a) and (b) read with sec.52(2) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the Act for short), with all consequential and incidental effects and to direct the respondents to vary the aforesaid Preliminary Town Planning Scheme No.6 (Unja) accordingly.
Facts leading to the present Special Civil Application and the chronological events in nutshell are as under:-
That the petitioners are the owners of the land bearing Survey No.296 admeasuring 4876 sq.mtrs. situated at Unja, District Mehsana. That Unja Area Development Authority (hereinafter referred to as the UADA for short) declared its intention to make a Town Planning Scheme under sec.42(1) of the Act on 2/5-11-1993 and the aforesaid land in question was brought within the area of proposed Town Planning Scheme. That thereafter, as per the provisions of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as the Rules for short), the intention was published in the local newspaper Jansatta by a public notice on 7/4/1995, whereby it was informed that the owners' meeting is going to be convened on 15/4/1995. That thereafter the appropriate authority made Preliminary Town Planning Scheme No.6 (Unja) and published the same in the local newspaper Jansatta on 24/4/1995, whereby invited objections and suggestions with respect to Draft Town Planning Scheme No.6 (Unja) as per sec.42(1) of the Act. That the same was also published in the Government Official Gazette on 27/4/1995. After taking into consideration the objections and suggestions received by the area development authority, it had submitted the said Draft Town Planning Scheme to the State Government for sanction under sec.48 of the Act on 24/8/1995. That the State Government (Urban Housing and Urban Development Department) in exercise of its powers under sec.48 of the Act sanctioned the said Town Planning Scheme No.6 (Unja) vide notification dtd.9/6/1999. That as per the sanctioned Draft Town Planning Scheme, Original Survey No.296 owned by the petitioners was given Original Plot No.207 admeasuring 4876 sq.mtrs. against which it was proposed to allot Final Plot No. 207 admeasuring 3900 sq.mtrs., the proposed deduction at the relevant time was 20%. That after the Draft Town Planning Scheme came to be sanctioned by the State Government under sec.48 of the Act, the State Government appointed Town Planning Officer on 21/8/1999 for finalisation of the Draft Town Planning Scheme in exercise of its powers under sec.50(1) of the Act. That the Town Planning Officer issued notices upon the petitioners - land owners inviting objections and suggestions on the sanctioned Draft Town Planning Scheme on 21/3/2000. It appears that in response to the aforesaid notice, no objections and/or suggestions were submitted to the Town Planning Officer on behalf of the land owners to the aforesaid proposal with respect to Survey No.269 - Original Plot No.207. That thereafter the Town Planning Officer vide its letter dtd.6/5/2003 to the UADA, forwarded the tentative reconstitution plan, showing the proposed Town Planning Road and Final Plots allotted to UADA for their further objections and suggestions. It appears that no objections and suggestions were received from UADA. Thereafter the UADA vide its Town Planning Committee vide its resolution dtd.6/8/2000 and General Board Resolution dtd.9/9/2003 sent its opinion to the Town Planning Officer. On the basis of the objections and suggestions received from the interested persons of the Scheme, the area and appropriate authority the Town Planning Officer prepared tentative reconstitution plan of the Town Planning Scheme No. 6. It is to be noted that as per the tentative reconstitution plan, it was decided to allot Final Plot No. 189 area admeasuring 3875 sq.mtrs. in lieu of Original Survey No.296 - Original Plot No. 207 admeasuring 4876 (instead of Final Plot No. 207 as per the sanctioned Draft Town Planning Scheme). It is also to be noted that while reconstituting the plan and shifting the allotment of Final Plot No. 189 instead of Final Plot No. 207, compare to the Draft Scheme proposal even the location also came to be changed and Final Plot was slightly shifted to East and have lesser approach of 12 mtrs.
T.P. Road from Souther Side. That as per the aforesaid tentative reconstitution plan, notice was issued to the land owners on 15/1/2004, inviting objections and suggestions. It appears that no one appeared on behalf of the owner before the Town Planning Officer on the date of hearing i.e. 23/1/2004. That thereafter the Town Planning Officer declared his decision on the Preliminary Town Planning Scheme No.6 on 9/5/2005 and prepared Preliminary Town Planning Scheme No. 6 and submitted the same to the State Government (Urban Housing and Urban Development Department) for its sanction on 21/5/2005 under the provisions of sec.64 of the Act. The decision of the Town Planning Officer (i.e. proposed Town Planning Scheme) was intimated to the land owners on 21/1/2005. It is to be noted that as per the proposed Preliminary Town Planning Scheme prepared by the Town Planning Officer which was sent to the State Government for its sanction under sec.65 of the Act which was intimated to the original land owners on 25/1/2005, instead of Final Plot No. 189 ( as per tentative reconstitution plan) it was decided by the Town Planning Officer to allot four Final Plots i.e. Final Plot Nos.107, 224, 227 and 229, total admeasuring 3876 sq.mtrs. in lieu of Original Survey No.296 Original Plot No.207 admeasuring 4876 sq.mtrs. of land. That after the receipt of the aforesaid Preliminary Scheme framed on by the Town Planning Officer, the same came to be considered by the State Government (Urban Housing and Urban Development Department) and the said Preliminary Town Planning Scheme No. 6 (Unja) came to be sanctioned by the State Government under sec.65 of the Act with further modifications on 5/7/2007 and as per the Preliminary Town Planning Scheme No.6 (Unja) sanctioned by the State Government (Urban Housing and Urban Development Department), instead of four Final Plots i.e. Final Plot Nos.107, 224, 227 and 229 [as proposed by the Town Planning Officer while framing / preparing Preliminary Town Planning Scheme No.6 (Unja)], as per the sanctioned Preliminary Scheme sanctioned by the State Government, it was proposed to allot Final Plot No. 294 admeasuring 3890 sq.mtrs in lieu of Survey no.296 Original Plot No.207 admeasuring 4876 sq.mtrs. and the State Government while sanctioning the Preliminary Scheme, modified the Preliminary Scheme submitted by the Town Planning Officer to the aforesaid extent i.e. by allotting only one Final Plot to the original land owners. Being aggrieved and dissatisfied with the aforesaid Preliminary Town Planning Scheme No.6 (Unja) sanctioned by the State Government and proposing to allot Final Plot No. 294 admeasuring 3890 sq.mtrs. to the original land owners i.e. petitioners in lieu of their Original Survey No.296 Final Plot No. 207 admeasuring 4876 sq.mtrs. and modifying the Preliminary Scheme submitted by the Town Planning Officer to the aforesaid extent, the petitioners - original land owners have preferred present Special Civil Application No. under Article 226 of the Constitution of India.
Mr.Prashant G. Desai, learned Senior Advocate appearing on behalf of the petitioners - original land owners has vehemently submitted that the impugned decision of the State Government to modify the Preliminary Scheme submitted by the Town Planning Officer in exercise of powers under sec.65 of the Act is absolutely illegal and arbitrary and as such contrary to the provisions of Sec.65 of the Act. It is submitted by Mr.Desai, learned Senior Advocate appearing on behalf of the petitioners that sec.65 of the Act does not give absolute powers to the State Government to vary the Preliminary Scheme submitted by the Town Planning Officer (Urban Housing and Urban Development Department). It is submitted that the State Government has only limited power to modify the Preliminary Scheme in case it decides to sanction with necessary corrections which are necessary in the opinion of the Government for the purpose of correcting an error, irregularity or informality only. It is submitted that in the present case the change made by the Government at the time of sanctioning the Preliminary Scheme cannot be any stretchy of imagination be considered either an irregularity, irregularity or informality. It is submitted that in the present case a substantial change has been made while modifying the Preliminary Scheme proposed by the Town Planning Officer. Mr.Desai, learned counsel appearing on behalf of the petitioners has relied upon the recent decision of the the Hon'ble Supreme Court in the case of Bhikhubhai Vithlabhai Patel & Ors. Vs. State of Gujarat & Anr., reported in AIR 2008 S.C. 1771.
Mr.Desai, learned senior advocate appearing on behalf of the petitioners has further submitted that even while exercising powers under sec.65 of the Act if the State Government takes a decision to modify the Preliminary scheme proposed by the Town Planning Officer in that case, an opinion is to be formed by the State Government with respect to such modification of the Preliminary Scheme whether there is an error, irregularity or informality which requires modification of Preliminary Town Planning Scheme proposed by the Town Planning Officer. It is further submitted by Mr.Desai, learned senior advocate appearing on behalf of the petitioners that not only that but the State Government is also required to form an opinion whether there is any necessity to modify the Scheme even in a case where there is an error, irregularity and informality in the Preliminary Town Planning Scheme proposed by the Town Planning Officer. Therefore, according to Mr.Desai, learned senior advocate appearing on behalf of the petitioners the State while modifying the Preliminary Town Planning Scheme submitted by the Town Planning Officer and sanctioning the same under sec.65 of the Act, the State Government is required to form two opinions namely (i) whether there is an error, irregularity or informality in the Preliminary Town Planning Scheme proposed by the Town Planning Officer and (ii) whether there is necessity for the purpose of correcting such an error, irregularity and informality, which requires modification of the Preliminary Scheme proposed by the Town Planning Officer. It is submitted that in the present case no such opinions have been formed by the State Government while modifying / sanctioning Preliminary Town Planning Scheme in question. Therefore, according to the learned advocate appearing on behalf of the petitioners such sanction of the Preliminary Town Planning Scheme with modification of the Preliminary Scheme proposed by the Town Planning Officer is absolutely illegal, arbitrary and even without following the procedure as required under sec.65 of the Act. Therefore, it is requested to quash and set aside the same. In support of the aforesaid submissions, learned advocate appearing on behalf of the petitioners has relied upon the aforesaid decision of the Hon'ble Supreme Court in the case of Bhikhubhai Vithlabhai Patel & Ors.
(supra).
Mr.Desai, learned senior advocate appearing on behalf of the petitioners has further submitted that even otherwise the impugned Preliminary Town Planning Scheme sanctioned by the State Government deserves to be quashed and set aside as the same is in breach of principles of natural justice inasmuch as no opportunity has been given to the petitioners before modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer and while sanctioning the Preliminary Town Planning Scheme in question. It is submitted that under Rule 26 of the Rules at every stage the land owners are required to be given an opportunity to submit objections and suggestions i.e. at the time of Draft Town Planning Scheme as well as at the time of preparation of the Preliminary Town Planning Scheme. It is submitted that in the present case at the time when the Draft Town Planning Scheme was sanctioned, the petitioners - original land owners were proposed to be allotted Final Plot No. 207 and thereafter objections and suggestions were invited by Town Planning Officer on the sanctioned Draft Scheme and thereafter Town Planning Officer prepared tentative reconstitution plan and instead of Final Plot No. 207 which was proposed to allot Final Plot No. 189 admeasuring 3875 sq.mtrs., altogether at a different location. It is submitted that at that stage also the petitioners - original land owners were issued notice inviting objections and suggestions against the allotment of Final Plot No. 189. It is submitted that thereafter, after considering the objections and suggestions, if any, Town Planning Officer prepared Preliminary Town Planning Scheme and instead of Final Plot No. 189 admeasuring 3875 sq.mtrs. of land, it was proposed to allot four different Final Plot i.e. Final Plot Nos. 107, 224, 227 and 229, total admeasuring 3876 sq.mtrs. of land and it was sent to the State Government for its sanction under sec.65 of the Act. It is submitted that instead of allotting aforesaid four Final Plots i.e. Final Plot Nos. 107, 224, 227 and 229, State Government sanctioned the Town Planning Scheme by modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer and instead of four Final Plots, under finalised / sanctioned Preliminary Town Planning Scheme by the State Government it has been decided to allot only one Final Plot i.e. Final Plot No. 294 admeasuring 3890 sq.mtrs. of land. Therefore, it is submitted that when the State Government takes a decision to modify sanctioned Preliminary Town Planning Scheme under sec.65 of the Act with modification i.e. by modifying the Preliminary Town Planning Scheme proposed by the Town Planning Officer, in that case, the State Government was required to give opportunity to the original land owners/petitioners and is required to issue notice upon the land owners who are likely to be affected on such modification. It is submitted that in a case where the State Government sanctions the Preliminary Town Planning Scheme under sec.65 of the Act without any modification i.e. accepts the Preliminary Town Planning Scheme submitted by the Town Planning Officer, in that case, there is no necessity to give opportunity, as earlier objections and suggestions are already invited at the time of preparing Preliminary Town Planning Scheme by the Town Planning Officer as required under Rule 26(a) of the Rules. Therefore, it is submitted that considering the Scheme of the Town Planning Act right from preparing the Draft Town Planning Scheme till its sanction, in the aforesaid situation, the right of hearing to be given to the land owners, is to be read in to even if it is not so specifically provided in the Act. Therefore, it is submitted that the impugned Preliminary Town Planning Scheme sanctioned by the State Government with modifications of the Preliminary Town Planning Scheme suggested by the Town Planning Officer is absolutely illegal and against the principles of natural justice which deserves to be quashed and set aside. Mr.Desai, learned advocate appearing on behalf of the petitioners has submitted that in such a situation, there can be two options available to the State Government i.e. (i) to give opportunity to the original land owners and invite objections and suggestions from the original land owners against the proposed changes to be made by the State Government while modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer and/or (ii) to return the Preliminary Town Planning Scheme sent by the Town Planning Officer for reconsidering the same by the Town Planning Officer along with the comments by the State Government and with proposed changes in the Preliminary Town Planning Scheme suggested by the Town Planning Officer, so that on remand the Town Planning Officer can consider the same and issue notice upon the original land owners and invite objections and suggestions as required under Rule 26(a) of the Rules. By making above submissions and relying upon the above decision it is requested to allow the present Special Civil Application.
The petition is opposed by Mr.M.R. Mengdey, learned Assistant Government Pleader and Mr.Navin Pahwa, learned advocate appearing on behalf of the respondent Nos.5 and 6 newly added parties i.e. the persons who are likely to be affected if the Preliminary Town Planning Scheme sanctioned by the State Government is quashed and set aside.
Mr.Mengdey, learned Assistant Government Pleader has heavily relied upon the Affidavit-in-reply filed on behalf of the respondents State. It is submitted by Mr.Mengdey, learned Assistant Government Pleader that sec.65 of the Act confers power upon the State Government to sanction Preliminary Scheme with such modifications as may, in its opinion be necessary for the purpose of correcting an error, irregularity or informality. It is submitted that powers conferred under sec.65 of the Act are absolute powers vest in the State Government either to sanction the Preliminary or Final Scheme or refuse to give sanction or may sanction such Scheme with such modifications. It is further submitted that in the present case at the time when the Draft Town Planning Scheme was sanctioned vide notification dtd.9/6/1999, Final Plot No. 207 admeasuring 3900 sq.mtrs. was proposed to be allotted to the petitioners - original land owners in lieu of original Survey No.296 Original Plot No.207 admeasuring 4876 sq.mtrs. almost in the Original Plot. It is submitted that thereafter the Town Planning Officer was appointed and the Town Planning Officer issued notice inviting objections and suggestions on the sanctioned Draft Scheme on 21/3/2000 and in response to the aforesaid notice, no objections and/or suggestions were received by the Town Planning Officer on behalf of the petitioners to the aforesaid Survey No.269 Original Plot No.207 (Final Plot No.
207). It is submitted that thereafter the Town Planning Officer forwarded the tentative reconstitution plan to the UADA and Final Plots were allotted by letter dtd.6/5/2003 showing proposed Town Planning Road and Final Plots allotted to the said authority for their objections and suggestions. It is submitted that so far as the land in question is concerned, no objection and/or suggestions were received. Thereafter, the UADA vide its Town Planning Committee passed Resolution dtd.6/8/2003 and General Body Resolution dtd.9/9/2003 and sent its opinion to the Town Planning Officer. That thereafter on the basis of the objections and suggestion received from the interested persons of the scheme area and the appropriate authority, Town Planning Officer prepared tentative reconstitution plan of the Town Planning Scheme No. 6 and under the tentative reconstitution plan, it was proposed to allow Final Plot No. 189 admeasuring 3875 sq.mtrs. in lieu of Original Survey No.296
- Original Plot No.207 admeasuring 4876. It is submitted that again Final Plot No. 189 proposed to be allotted to the petitioners - original land owners was allotted in the original plot itself. It is further submitted that as per the aforesaid tentative reconstitution plan, notice was again issued to the land owners on 15/1/2004 for inviting objections and suggestions and no one appeared on behalf of the original land owners before the Town Planning Officer on the date of hearing i.e. 23/1/2004. It is submitted that despite the same, after the tentative reconstitution the very Town Planning Officer in absence of their being any representation unanimously changed the aforesaid reconstitution and the Town Planning Officer declared its decision for the Preliminary Town Planning Scheme No.6 on 9/5/2005 and submitted the Preliminary Scheme for sanction to the State Government on 21/5/2005 under the provisions of sec.65 of the Act. It appears that ad per the said decision of the Town Planning Officer in respect of Final Plot No.189 it was proposed by the Town Planning Officer to allot four Final Plots i.e. Final Plot Nos.107, 224, 227 and 229, total admeasuring 3876 sq.mtrs. in the prime location in lieu of one original plot which was situated at a remote place at four different places having direct approach of 24 mtrs., 18 mtrs. and 12 mtrs. to the original land owners. It is submitted that the land of the original plot which was located in the remote place came to be allotted to the UADA for the purpose of saleable plot for commercial . It is submitted that in view of the above and after receipt of the aforesaid Preliminary Scheme framed by the Town Planning Officer, the State Government wrote to the Chief Town Planner seeking his opinion thereon. The Chief Town Planner submitted his opinion along with necessary suggestions to the State Government and one of the suggestions was in respect of the land in question. The Chief Town Planner inter-alia opined that there was an irregularity committed by the Town Planning Officer by acting against the well established guidelines in allotting the Final Plot at four different places to the land owners who had never represented in that behalf and that too at the prime location and to the disadvantage of the UADA, by allotting the parcels of land to the UADA at the remote places. It is submitted that in view of the above th State Government wrote to the Chief Town Planner inter-alia directing it to effect necessary changes as per his opinion dtd.1/11/2006 and to submit it again to the State Government and accordingly the Chief Town Planner after making necessary changes and rectifying the irregularity committed by the Town Planning Officer submitted Redistribution Statement and necessary changes to the State Government. It is submitted that thereafter the Preliminary Town Planning Scheme No.6 (Unja) came to be sanctioned by the State Government under sec.65 of the Act with some modification on 7/7/2007 and as per the sanctioned Town Planning Scheme it has been decided to allot Final Plot No. 294 to the petitioners - original land owners admeasuring 3890 sq.mtrs. in lieu of Survey no.296 Original Plot No.207 admeasuring 4876 sq.mtrs. of land. It is further submitted that thus, the State Government while sanctioning the Preliminary Scheme thought it fit to modify the Preliminary Scheme submitted by the Town Planning Officer by allotting only one Final Plot to the original land owners in lieu of original plot at its place as it was at the time of tentative reconstitution plan and the Final Plot allotted to the appropriate authority for the purpose of saleable plot for commercial in the original plot of land owners was modified and three different Final Plots namely Final Plot Nos. i.e. Final Plot Nos.107, 224, 227 and 229 are allotted to the UADA for the purpose of saleable plot for commercial having direct approach of 24 mtrs., 18 mtrs. and 12 mtrs. TP Road in the larger public interest and Final Plot No. 229 was decided to be retained by the society and for the purpose of approach road to the society located in the Original Plot No.155 (Final Plot No. 226) (which is in favour of the respondent Nos.5 and 6). Therefore, it is submitted that a conscious decision has been taken by the State Government while modifying the Preliminary Town Planning Scheme proposed by the Town Planning Officer and while sanctioning the Preliminary Town Planning Scheme under sec.65 of the Act.
It is submitted that there is an inbuilt mechanism under the Act for considering the question of modification in the Preliminary or Final Scheme on account of an error, irregularity or informality. It is submitted that as per sec.65 of the Act, the State Government has power to make such modifications for the purpose of correcting an error, irregularity or informality and in this case, the same are considered by the State Government and therefore, the action of the State Government in sanctioning the preliminary Town Planning Scheme after making the modification is legal and proper and therefore require to be upheld.
It is further submitted that in the present case the State Government at the time of sanctioning of the Preliminary Scheme found irregularity in Preliminary Scheme and therefore, the same has been corrected by the State Government in exercise of powers under sec.65 of the Act.
It is further submitted by Mr.Mengdey, learned Assistant Government Pleader that there is no question of giving any opportunity to the petitioner - original land owners and/or any land owner at the time of modifying the Preliminary Town Planning Scheme or the final Town Planning Scheme, as the case may be, while sanctioning the same under sec.65 of the Act. It is submitted that such a hearing and/or inviting objections and suggestions at that stage is neither provided in the Act nor in the Rules. Therefore, it is submitted that what is not provided in the Act or the Rules is not required to be observed. It is submitted that whenever the hearing is contemplated and/or suggestions and objections are to be invited, the same are provided either in the Act or in the Rules more particularly Rule 26 of the Rules. Therefore, it is submitted that on the ground that the petitioners
- original land owners were not given opportunity to submit their objections and/or suggestions at the time of sanctioning the Preliminary Town Planning Scheme in question by the State Government under sec.65 of the Act, by modifying the Preliminary Scheme proposed by the Town Planning Officer and correcting irregularity committed by the Town Planning Officer while preparing the Preliminary Town Planning Scheme to the extent stated above, the impugned Preliminary Town Planning Scheme is not required to be quashed and set aside and it is required to be upheld.
Mr.Navin Pahwa, learned advocate appearing on behalf of the respondent Nos.5 and 6 (newly added parties) has by and large adopted the submissions made by Mr.M.R. Mengdey, learned Assistant Government Pleader. It is submitted by Mr.Pahwa, learned advocate appears on behlaf of the respondent Nos.5 and 6 that as such the respective respondent Nos.5 and 6 were aggrieved by the decision of the Town Planning Officer preparing Preliminary Town Planning Scheme and allotting four Final Plots to the petitioners herein as the same was likely to affect the respondent Nos.5 and 6 and therefore, they had preferred Special Civil Application No. 23569 of 2005 and other allied matters challenging the Preliminary Town Planning Scheme prepared by the Town Planning Officer and this Court disposed of the aforesaid Special Civil Applications by submitting that the State Government shall consider the objections and suggestions and thereafter, after considering the objections and suggestions submitted by the petitioners, the Preliminary Town Planning Scheme is sanctioned by State Government vide notification dtd.5/7/2007 and the decision of the State Government while sanctioning the Town Planning Scheme correcting the irregularity committed by the Town Planning Officer while preparing the Preliminary Town Planning Scheme, is just and proper and is not required to be interfered with. Therefore, it is requested to dismiss the present Special Civil Application.
Heard the learned advocates appearing on behalf of the respective parties at length.
The short question which is posed for consideration of this Court is with respect to powers of the State Government (Urban Housing and Urban Development Department) while exercising powers under sec.65 of the Act, more particularly to sanction the Preliminary Town Planning Scheme with modifications and whether in a case where the State Government while sanctioning the Preliminary Scheme submitted by the Town Planning Officer sanctions the same with modifications i.e. instead of Final Plot A proposed to be allotted under the Preliminary Town Planning Scheme prepared and proposed by the Town Planning Officer, if State Government modifies the same and sanctions the same and allots Final Plot B , in such a case whether any opportunity is to be given to the land owner or not with respect to the Final Plot allotted under the Preliminary Town Planning Scheme sanctioned by the State Government?
Before dealing with the contentions and the submissions made by the learned advocate appearing on behalf of the respective parties the Scheme of the Town Planning Act with respect to Town Planning Scheme is required to be referred to 14.1. Sec.41 of the Act confers power upon the appropriate authority to resolve on declaration of intention to make the scheme. Before making any Town Planning Scheme under the Town Planning Act with respect to any area, the appropriate authority, in consultation with the Chief Town Planner is required to declare its intention to make such a scheme with respect to such a scheme. As per sub-sec.(2) of sec.41 after such declaration of intention to make a scheme, appropriate authority is required to publish it in the prescribed manner and shall dispatch a copy thereof along with a plan in the area which it proposes to include in the Town Planning Scheme to the State Government. As per sub-sec.(3) of sec.41 copy of the plan dispatched to the State Government is required to be kept open to the inspection of the public during the office hours of the appropriate authority.
14.2. As per sec.42 of the Act within a period of nine months from the date of the declaration of the intention to make a scheme under sec.41, appropriate authority is required to make a Draft Scheme of the area in respect of which the said declaration has been made and publish in the official gazette, along with the draft regulations for carrying out the provisions of the Scheme (period of nine months to make a Draft Scheme can be extended as per proviso to sub-sec.(1) of sec.42). In case the Draft Scheme is not made and published by the appropriate authority within the period specified in sub-sec.(1) of sec.42 or within the period extended under the proviso to that sub-section, an officer appointed by the State Government may make and publish in the official gazette a Draft Scheme for the area in respect of which declaration of intention to make a scheme has been made within a period of nine months from the date of the expiry of period within which appropriate authority was required to make and declare the Draft Scheme.
14.3. As per sec.44 of the Act the Draft Scheme shall contain the following particulars namely, (a) the area, ownership and tenure of each original plot; (b) the particulars of land allotted or reserved under clause (e) of sub-section (3) of section 40 with a general indication of the uses to which such land is to be put and the terms and conditions subject to which such land is to be put to such uses;
(c) the extent to which it is proposed to alter the boundaries of original plots; (d) an estimate of the net cost of the scheme to be borne by the appropriate authority; (e) a full description of all the details of the scheme under sub-section (3) of section 40 as may be applicable; (f) the laying out or relaying out of land either vacant or already built upon; (g) the filling up or reclamation of law-lying, swampy or unhealthy areas or levelling up land.
14.4. As per sec.45 of the Act in the Draft Scheme referred to in sec.44 size and shape of every plot is required to be referred to be determined so far as may be, to render it suitable plots for building purposes and where the building has already built upon to ensure that the building as far as possible complies with the provisions of the Scheme as regards open spaces.
14.5. As per sub-sec.(2) of sec.45, for the purposes of sec.45(1) the Draft Scheme may contain proposal.....(a) to form a Final Plot of the reconstitution of an Original Plot while the altering its boundaries, if necessary; (b) to form a Final Plot from an Original Plot by the transfer of any adjoining land; (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 Final Plot with or without alteration of the boundaries; (d) to allot Final Plot to any owner dispossessed of land in furtherance of the scheme; and (e) to transfer ownership of a plot from one person to another.
14.6. As per sec.46 of the Act when there is a disputed claim of the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the appropriate authority or the Town Planning Officer at any time prior to the date on which the Town Planning Officer draws up the Preliminary Town Planning Scheme under sec.51 by as the State Government may appoint for the purpose of deciding as to who shall be deemed to be owner for the purpose of Town Planning Act.
14.7. After making of the Draft Town Planning Scheme as per sec.44 of the Act read with Rule 21 read with sec.45 of the Act and preparing Redistribution and Valuation Statement in Form-F, any person affected by such Draft Scheme submits any objection within a month from the date of publication of a Draft Scheme relating to such scheme, appropriate authority is required to consider such objection and the appropriate authority may at any time before submitting Draft Scheme to the State (as per sec.48 of the Act) modify such Scheme as it thinks fit.
14.8. Sec.48 of the Act cast duty upon the appropriate authority to submit the Draft Scheme to the State Government within three months from the date of the publication of the Draft Scheme in the official gazette, with any modifications that may have been made therein under sec.47 together with the objections which may have been communicated to it, for the State Government sanction.
14.9. Sub-sec.(2) of sec.48 confers power upon the State Government to sanction such Draft Scheme submitted by the appropriate authority with or without modifications or subject to such condition as it may think fit to impose or refuse to sanction it.
14.10. As per Sub-sec.(3) of sec.48 if the State Government sanctions such Draft Scheme, it shall in such notification state at what place and time the Draft Scheme shall be open for the inspection of the public.
14.11. When a Draft Scheme has been sanctioned by the State Government under sub-sec.(2) of sec.48, as per sec.48-A, all the lands required by the appropriate authority for the purpose specified in clauses (c), (f),
(g) or (h) of sub-sec.3 of sec.40 shall vest absolutely in the appropriate authority free from all encumbrances. As per sub-sec.(3) of sec.48-A, State Government and/or appropriate authority may get possession of plots/lands required for the purposes specified in clauses (c), (f), (g) or (h) of sub-sec.3 of sec.40 as if sanctioned Draft Scheme, were a Preliminary Scheme, after following provisions of secs.68 and 69 of the Act.
14.12. As per sec.49 of the Act on and after the date on which a Draft Scheme is published under sec.41, no person shall, within the area included n the Scheme, carry out any development unless such person has applied for and obtained necessary permission for doing so from the appropriate authority in the prescribed form. Thus, sec.49 of the Act imposes a restriction upon a land owner of the land included in the Scheme to use the land and/or develop the land in question.
After the Draft Scheme is sanctioned by the State Government in exercise of powers under sec.48 of the Act, the State Government is required to appoint a Town Planning Officer within one month from the date on which sanction of the State Government is notified in the Official Gazette. Town Planning Officer is required to be appointed in conformity with the provisions of Rule 24 and even appointment of Town Planning Officer is required to be published in the official gazette as required under sub-rule (2) of Rule 24 and copy of which is required to be forwarded to the appropriate authority concerned, who shall immediately on receiving a copy of such notification post it up at the office of the appropriate authority and on some prominent place within the area of the jurisdiction of the appropriate authority.
14.13. After appointment of Town Planning Officer under sec.50 of the Act, the Town Planning Officer is required to sub-divide Town Planning Scheme into a Preliminary Scheme and Final Scheme after following the prescribed procedure as required under Rule 26 of the Rules.
14.14. While preparing a Preliminary Scheme and Final Scheme as per secs.51 and 52 of the Act, a Town Planning Officer is required to follow the following procedure as per Rule 26 of the Rules. Rule 26 of the Rules reads as under:-
Rule
26. Procedure to be followed by Town Planning Officer under section 51 and under sub-section (1) of section 52.--
For the purpose of preparing the preliminary scheme and final scheme the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and he shall state the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim before him. Such notice shall be published in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer.
The Town Planning Officer shall after the date fixed in the notice given under sub-rule (1), continue to carry on his duties as far as possible on working days and during working hours.
The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, published a notice in form H in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority. Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and the State that all the persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to be Town Planning Officer within a period of twenty days from the publication of notice in the Official Gazette. Such notice shall also be posted at the office of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at at a convenient places in the said locality.
The Town Planning Officer shall give every person interested in any land affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any.
If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefore. All such minutes shall be appended to the scheme.
The Town Planning Officer shall record and enter in the scheme every decision given by him. The calculations and estimates shall be set out and recorded in Form F, Form G and in other statements as may be prepared by the Town Planning Officer.
The scheme as drawn up by the Town Planning Officer shall include particulars specified in rule 21 read with section 52.
The component parts of the scheme shall be so arranged that they may be readily referred to in connection with the map and plans.
The Town Planning Officer shall publish the scheme drawn up by him by notification in the Official Gazette in Form I and also by means of an advertisement in one or more local newspaper announcing the scheme shall be open for for the inspection of the public during office hours at his office and communicate forthwith the decisions taken by him in respect of each plot to the owner or person interested by the issue of the requisite extract from the scheme in Form J and Form K as the case may be. The Town Planning Officer shall also inform the President of the Board of Appeal about publication of final scheme.
Before the Preliminary Scheme is prepared by the Town Planning Officer and is sent to the State Government for its sanction as per sub-rule (3) of rule 26, the Town Planning Officer shall publish a notice in Form-H in the official gazette and in one or more Gujarati newspaper circulating within the area of the appropriate authority and such notice shall specify matters which are proposed to be decided by the Town Planning Officer and state that all persons in the plots affected by any of the matters specified in the notice, shall communicate in writing their objections to the Town Planning Officer within a period of twenty days from the date of publication of the notice in the official gazette. Such notice is also required to be pasted at the office of the Taluka Development Officer and of the appropriate authority and substance of such notice shall also be pasted at convenient place of the said authority.
14.15. As per sub-rule (4) of rule 26, the Town Planning Officer is required to give every person interested in any land affected by any particular of the Scheme, sufficient opportunity of stating their views and the Town Planning Officer shall not give any decision unless he has duly considered their representations, if any. If during the proceedings it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme, the Town Planning Officer is required to record a brief minutes in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefor and all such minutes shall be appended to the Scheme. As per sub-rule (6) of rule 26, the Town Planning Officer shall record and enter in the scheme every decision given by him. The calculation and the estimate shall be set out and recorded in Form-F, Form-G and in any other statements as may be prepared by the Town Planning Officer. Thereafter, after considering the objections, if any, received and the decision on such objections, as stated hereinabove, the Town Planning Officer shall make and prepare the Preliminary Town Planning Scheme as per sec.52 of the Act and define and demarcate areas allotted to or reserved for any purpose or for a purpose of the appropriate authority and the Final Plots. That after the Preliminary Town Planning Scheme is prepared by the Town Planning Officer, as per sub-sec.(1) of sec.52 of the Act, the Town Planning Officer shall submit such Preliminary Town Planning Scheme so prepared to the State for its sanction as per sub-sec.(2) of sec.52.
14.16. After the Preliminary Town Planning Scheme is prepared by the Town Planning Officer to be sent to the State Government for its sanction, the Town Planning Officer is required to publish the same (Preliminary Town Planning Scheme) by notification in the Government Gazette in Form-I and also by means of a advertisement in one or more local newspaper announcing that the scheme shall be open for inspection of the people at office hours at his office and communicate forthwith decision taken by him in respect of which plot to the original owner or person interested by the issue of the requisite extract of the scheme in Form-J and Form-K, as the case may be. As per Form-I, any person who is aggrieved of the decision taken by the Town Planning Officer under sec.54 of the Act may present an appeal which are appealable to the Board of Appeal.
14.17. That thereafter, after the Preliminary Town Planning Scheme is sent by the Town Planning Officer to the State Government for its sanction, as per sec.65 of the Act, on receipt of the Preliminary Town Planning Scheme, the State Government (Urban Housing and Urban Development Department) may sanction the Preliminary Town Planning Scheme or refuse to give sanction, provided that in sanctioning any such scheme State Government may make such modifications as may, in its opinion be necessary for the purpose of correcting an error, irregularity or informality. When the State Government sanctions the Preliminary Town Planning Scheme with or without modifications, as per sub-sec.(1) of sec.65 of the Act, it shall state in the Notification (a) place at which the Scheme shall be kept open for the inspection of the public and (b) a date (which shall not be earlier than one month after the date of publication of the Notification) in which all liabilities created by the scheme shall come into force. As per sub-sec.(3) of sec.65 of the Act, on and after the date fixed in such notification, Preliminary Scheme or the Final Scheme, as the case may be, shall have effect as if it were enacted in the Town Planning Act.
14.18. As per sec.67 of the Act, on the date on which the Preliminary Scheme comes into force, all the lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vests absolutely in the appropriate authority free from all encumbrances and all the rights in the Original Plot which have been reconstituted into Final Plot shall determine and the Final Plots shall become subject to the rights settled by the Town Planning Officer.
14.19. Sec.68 of the Act confers powers upon the the appropriate authority to summarily evict any person continuing to occupy any land which he is not entitled to occupy under the Preliminary Scheme in accordance with the prescribed procedure.
14.20. After the Preliminary Town Planning Scheme is sanctioned by the State Government with or without modifications as per sec.65(1) of the Act and after notification with respect to sanctioning of the Preliminary Town Planning Scheme by the State Government, as stated hereinabove, the Town Planning Officer is required to prepare a Final Scheme and is required to mention the particulars in such Final Scheme as required under sub-sec.(3) of sec.52 of the Act and is required to serve a notice in Form-K, and thereafter the State Government is required to sanction such Final Scheme under sub-sec.(1) of sec.65 of the Act and as stated above, on sanctioning of the Preliminary Town Planning Scheme or the Final Town Planning Scheme, as the case may be, necessary consequences, as stated hereinabove, shall follow i.e. vesting of the lands etc. Thus, considering the aforesaid Scheme of the Act while preparing the Draft Town Planning Scheme; sanction it by the State; preparing the Preliminary Town Planning Scheme and sending it to the State Government for its sanction, the persons affected by such Scheme, are required to be served with the notices in Form-F, Form-G. Form-H, Form-I, Form-J and Form-K and at every stage of Draft Scheme as well as Preliminary Scheme, objections and suggestions are invited in the prescribed form the affected persons likely to be affected by such Scheme. Thus, if at the stage of Draft Scheme while preparing the Redistribution and Valuation Statement in Form-F, if a land owner/person is proposed to be allotted a particular Final Plot, his objections and suggestions are invited. After the Draft Town Planning Scheme is sanctioned by the State Government, the Town Planning Officer is required to publish a notice in Form-H in the official gazette and in one or more Gujarati newspaper circulating within the area of the appropriate authority specifying the matters which are proposed to be decided by him and state that all the persons who are interested in the plots or are affected by any of such matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of 20 days from the publication of notice in the official gazette and before even making and/or preparing Preliminary Town Planning Scheme, the Town Planning Officer is required to give every person interested in any land affected by any of the particular, sufficient opportunity of stating their views and the Town Planning Officer shall not give give any decision till he has duly considered their representation, if any. Therefore, if after the Draft Town Planning Scheme is sanctioned by the State Government a particular person/land owner is proposed to be allotted Final Plot A , such person/land owner has a right to submit his objections and suggestions against the proposed allotment of said Final Plot and the Town Planning Officer is required to consider the same at the time of making or preparing Preliminary Town Planning Scheme and if during such proceedings it appears to the Town Planning Officer that there are conflicting claim or any difference of opinion with regard to any part of the scheme, the Town Planning Officer is required to record a brief minutes setting out the points at issue and the necessary particulars, and is required to give a decision with the reasons and all such minutes is required to be appended to the Scheme. The Town Planning Officer is required to record and enter in the scheme every decision given by him and is required to send all objections and suggestions received by him, if any, along with the Preliminary Town Planning Scheme prepared by him and sent it to the State Government for its sanction. As stated above, even after the Preliminary Town Planning Scheme is made and prepared by the Town Planning Officer which was being submitted to the State for its sanction, a person/land owner is required to be served with notice in Form-J i.e. the decision taken by the Town Planning Officer while preparing and making the Preliminary Town Planning Scheme which was being submitted to the State Government for its sanction i.e. with the particulars of original Survey Number; original Plot Number; area of Original Plot in square meters; Plot Number of Final Plot allotted; area of Final Plot allotted in square meter and remarks, if any. Suppose in a given case under the Draft Town Planning Scheme a land owner is proposed to be allotted Final Plot A which came to be sanctioned by the State Government and after considering the objections and suggestions, if any, by any aggrieved person that particular owner is proposed to be allotted Final Plot B and at that stage that owner who proposed to be allotted Final Plot B is informed that under the Preliminary Town Planning Scheme it is proposed to allot him Final Plot B in lieu of his original Survey Number Original Plot Number and thereafter, while sanctioning such Preliminary Town Planning Scheme, the State Government decides to modify the Preliminary Town Planning Scheme proposed by the Town Planning Officer i.e. instead of Final Plot B under the Preliminary Town Planning Scheme proposed by the Town Planning Officer, the State Government while sanctioning the Preliminary Town Planning Scheme takes a decision to allot another Final Plot i.e. Final Plot C , the question whether at that stage and before any decision by the State Government while sanctioning the Preliminary Town Planning Scheme with modification, as stated hereinabove, any hearing/opportunity is required to be given or not? Considering the Scheme of the entire Town Planning Act, as stated hereinabove such an opportunity is required to be given to such owners who are are likely to be affected by such modification. An owner/person adversely affected by such modification of Preliminary Town Planning Scheme suggested by the Town Planning Officer is required to be given a fair hearing/opportunity, more particularly when at every stage at the time of Draft Town Planning Scheme and/or preparing Preliminary Town Planning Scheme such a land owner / person is informed with respect to proposed Final Plot to be allotted and his objections and suggestions are invited which are to be dealt with by the Town Planning Officer.
In the case of Lala Shri Bhagvan & Anr. Vs. Ramchand & Anr.
reported in AIR 1965 S.C. 1767, the Hon'ble Supreme Court observed that powers to determine the questions affecting the rights of the of the citizen would impose limitation and the power should be exercised in conformity with the principles of natural justice. In case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, reported in 1991 (Suppl.) 1 SCC 600, the Hon'ble Supreme Court has observed that it is now well settled that audi alteram partem rule which in essence enforces equality clause in Article 14 of the Constitution of India is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party in question unless the application of the rule has been expressly excluded by the Act or the regulation or rule. It is by now well settled that without affording an opportunity of being heard no order adverse to a person can be passed. Principles of natural justice require that before taking action against the citizen he must have a right to be heard. The said requirement of principles of natural justice can be abridged or even totally shut out, however, the same can be done only by specific provisions or by necessary implication. In other words, when the statute is silent, the principles of natural justice can be read into it and unless a statutory provisions specifically or by necessary implication dispenses with the principles of natural justice, the hearing must be given before passing any adverse order. Similar view has been expressed by the Hon'ble Supreme Court in the case of State Government Houseless Harijan Employees Association vs. State of Karnataka and Others, reported in 2001 (1) SCC 610. Under the circumstances, while sanctioning the Preliminary Town Planning Scheme, modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer, the requirement of principles of natural justice can be read into.
It is to be noted that sec.65(1) confers power upon the State Government to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer with such modification as may, in its opinion be necessary for the purpose of correcting an error, irregularity or informality. Therefore, only in a case where the State Government forms an opinion that it is necessary for the purpose of correcting an error, irregularity or informality, the State Government may modify the Preliminary Town Planning Scheme suggested by the Town Planning Officer while sanctioning the Preliminary Town Planning Scheme suggested by the Town Planning Officer. Therefore, if the opportunity would have been given to the persons/land/or owners likely to be affected by such modification of the Preliminary Town Planning Scheme suggested by the Town Planning Officer, the land owner may point out that there is no necessity to modify the Scheme and/or modification which is sought to be made by the State Government, there is no error, irregularity or informality and modification which is likely to be made by the State Government while sanctioning the Preliminary Town Planning Scheme is substantial in nature. Therefore, if such a requirement of principles of natural justice is not read into at the stage when the State Government proposes to sanction the Preliminary Town Planning Scheme suggested by the Town Planning Officer with modifications, a grave prejudice shall be caused to such a person/land owner It is to be noted that even under sub-sec.(1) of sec.65 of the Act, it is not incumbent upon the State Government to sanction the Preliminary Town Planning Scheme suggested by the Town Planning Officer. The State Government may refuse to sanction the Town Planning Scheme suggested by the Town Planning Officer and may return the same to the Town Planning Officer with their comments and/or objection against sanctioning of the Preliminary Town Planning Scheme with their comments and modification and the Town Planning Officer can consider the same again and at that stage again before preparing and/or making the Preliminary Town Planning Scheme as suggested by the State Government and before sending it to the State Government again for its sanction, the Town Planning Officer is required to follow the procedure as required to be followed at the time of preparation of the Preliminary Town Planning Scheme i.e. as required under sub-rule (3) and (4) of rule 26, which provides to give opportunity to the persons interested in any land affected by any particular of the Scheme.
Now considering the facts of the case, at the time when the Draft Town Planning Scheme was sanctioned, the petitioners were proposed to be allotted Final Plot No. 207 admeasuring 3900 sq.mtrs. in lieu of Original Survey No.296 Original Plot No.207 admeasuring 4876 sq.mtrs. and accordingly the petitioners were served with Redistribution and Valuation Statement in Form-F and the petitioners were served with notices by the Town Planning Officer inviting objections and suggestions, if any, as required under Rule 26(3) and (4) of the Rules. It also further appears that thereafter, on the basis of the objections and suggestions received from the interested persons of the scheme area and the appropriate authority, the Town Planning Officer prepared tentative reconstitution plan of the Town Planning Scheme No. 6 and as per the tentative reconstitution plan, instead of Final Plot No. 207 admeasuring 3900 sq.mtrs, it was proposed to allot Final Plot No. 189 admeasuring 3875 sq.mtrs. and compared to the Draft Scheme Proposal, the Final Plot was slightly shifted towards East and was having lesser area and away from 12 meters. TP Road from the South side and 7.62 meters TP Road was deleted. That as per the aforesaid tentative reconstitution plan, notice was issued upon the petitioners - land owners inviting objections and suggestions. That thereafter, when the Town Planning Officer prepared and declared his decision for the Preliminary Town Planning Scheme No.6, instead of proposed Final Plot No. 189 admeasuring 3875 sq.mtrs, the petitioners - original land owners were allotted four different Final Plots being Final Plot Nos.107, 2009, 227 and 224 of different areas, totaling to 3876 sq.mtrs. and it was sent to the State Government for its sanction under sec.65 of the Act and State Government sanctioned the same modifying the Preliminary Town Planning Scheme prepared and suggested by the Town Planning Officer and instead of four different Final Plots to be allotted to the petitioners as suggested by the Town Planning Officer, while sanctioning the Preliminary Town Planning Scheme, the State Government has allotted Final Plot altogether a different Final Plot No. 294 admeasuring 3890 sq.mtrs. entirely changing the dimension and position of the land/plot/plots suggested by the Town Planning Officer, without giving any opportunity to the petitioners
- land owners and without inviting objections and suggestions from the petitioners - land owners. Considering the aforesaid scheme of the Act and the objections and suggestions to be invited from the land owners at the time of Draft Town Planning Scheme and Preliminary Town Planning Scheme, when the State Government proposes to sanction the Preliminary Town Planning Scheme in exercise of powers under sec.65 of the Act with modification and instead of Final Plot proposed by Town Planning Officer under the Preliminary Town Planning Scheme if the State Government allots another Final Plot, may be, while correcting an error, irregularity or informality, in that case, an opportunity is required to be given to the petitioners - land owners and therefore, any modification of the Preliminary Town Planning Scheme suggested by the Town Planning Officer, while sanctioning the Preliminary Town Planning Scheme by the State under sec.65 of the Act would be against the principles of natural justice and would be vitiated and deserves to be quashed and set aside to that extent.
As stated above, under sec.65 of the Act, the State Government has three options available to it when the Preliminary Scheme is sent to it by the Town Planning Officer for its sanction namely [1] the State Government may sanction the Preliminary Town Planning Scheme suggested by the Town Planning Officer as it is [2] The State Government may refuse to sanction the Preliminary Town Planning Scheme suggested by the Town Planning Officer in toto and/or return the same to the Town Planning Officer with their comments and the Town Planning Officer may consider the same and again prepare the Preliminary Town Planning Scheme accordingly, after giving an opportunity to the persons likely to be affected by such modification and/or preparation of Preliminary Town Planning Scheme as suggested by the State Government; or [3] may sanction the Preliminary Town Planning Scheme with such modifications as may in its opinion, be necessary for the purpose of correcting an error, irregularity and/or informality. Therefore, if the State Government was of the opinion that four final plots to be allotted to the petitioners - original land owners as suggested by the Town Planning Officer, the Preliminary Town Planning Scheme was required to be modified for the purpose of correcting an error, irregularity or informality, in that case, either the State Government was required to give an opportunity to the petitioners - original land owners or might have return the same to the Town Planning Officer with their comments so that while preparing the Preliminary Town Planning Scheme again as suggested by the State Government, the objections and suggestions as required under Rule 26 can be invited from the land owners petitioners. In any case, in the present case, the State Government could not have sanctioned the Preliminary Town Planning Scheme No. 6 by allotting Final Plot No. 294 admeasuring 3890 sq.mtrs to the petitioners - land owners in lieu of their original Survey no.296 Original Plot No.207 admeasuring 4876, instead of four Final Plots being Final Plot Nos.107, 229, 227 and 224, total admeasuring 3876 sq.mtrs. as suggested by the Town Planning Officer in the Preliminary Town Planning Scheme without giving an opportunity to the petitioners - land owners of submitting their objections and suggestions against the same. It is to be noted that while allotting Final Plot No. 294 to the petitioners under the sanctioned Preliminary Town Planning Scheme by the State Government, not only Final Plot is changed, but even the measurement is also changed and even the location is also changed. Whether the aforesaid modification/change can be said to be an error, irregularity or informality is also a serious dispute. According to Mr.Desai, learned senior advocate appearing on behalf of the petitioners the modification made by the State Government in the Preliminary Town Planning Scheme proposed by the Town Planning Officer while sanctioning the same under sec.65 of the Act cannot be said to be correcting an error, irregularity or informality and according to him, it is a substantial modification / change which could not have been done by the State Government while exercising powers under sec.65 of the Act. Therefore, whether such a modification is an error, irregularity or informality or not, or can be modified while sanctioning the Scheme under sec.65 of the Act, opportunity is required to be given to the petitioners - land owners and if the opportunity would have been given, in that case, the petitioners - land owners could have pointed out that the proposed modification in the Preliminary Town Planning Officer Scheme by the Town Planning Officer is substantial one and not an error or informality which could not be corrected in exercise of powers under sec.65 of the Act.
Another contention of Mr.Prashant Desai, learned senior advocate appearing on behalf of the petitioners is with respect to formation of opinion by the State Government while sanctioning the Scheme with modification. According to Mr.Desai, learned senior advocate, while sanctioning the Preliminary Scheme with modifications the State Government is required to form an opinion not only with respect to an error, irregularity or informality but the State Government is also required to form an opinion as to whether there is necessity for the purpose of correcting such an error, irregularity or informality. Therefore, according to Mr.Desai, learned counsel appearing on behalf of the petitioners two types of opinion are required to be formed by the State Government as stated above. In support of his above submission, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bhikhubhai Vithlabhai Patel and others (supra), more particularly para 20 and 21. That was a decision while dealing with sec.17 of the Gujarat Town Planning Act and powers of the State Government to sanction Development Plan with modification. According to Mr.Desai, learned senior advocate appearing on behalf of the petitioners, the Hon'ble Supreme Court has observed and held that forming of opinion by the State Government with reference to the necessity that may had arisen to make substantial modification in the Draft Development Plan and the form of the opinion by the State Government should reflect intense application of mind with reference to material available on record that it had become necessary to propose substantial modification to the Draft Development Plan.
Now, considering the aforesaid decision and relevant provisions of the Act i.e. sec.17 of the Act (which was under consideration by the Hon'ble Supreme Court) and the language used in sec.65 of the Act, the wordings are somewhat different. In sec.17 of the Act the wordings are provided that where the State Government is of the opinion that substantial modification in the Draft Development Plan and Regulations are necessary, State Government may..... publish modification so consider necessary in the official gazette along with a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications . In sec.65 of the Act the wordings are State Government may....... make such modifications as may, in its opinion be necessary for the purpose of correcting an error, irregularity or informality. Therefore, considering the wordings, according to this Court, forming of the opinion by the State Government should be with respect to the modification of the Preliminary Scheme for the purpose of correcting an error, irregularity or informality and not with respect to necessity for the purpose of correcting an error, irregularity or informality. Once the State Government forms an opinion while sanctioning the Preliminary Town Planning Scheme that modification is required for the purpose of correcting an error, irregularity or informality and the State Government forms an opinion with respect to any error, irregularity or informality, the State Government has power to sanction the Scheme with modifications for the purpose of correcting such an error, irregularity or informality.
The sum and substance of the aforesaid discussion is that in a case where the State Government sanctions the Preliminary Town Planning Scheme with modification in the Preliminary Town Planning Scheme suggested by the Town Planning Officer and instead of Final Plot A suggested by the Town Planning Officer under the Town Planning Scheme, Final Plot B is allotted to the land owner at the time of sanctioning the Preliminary Town Planning Scheme No.65 of the Town Planning Act i.e. modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer to the aforesaid extent, before such a modification, an opportunity is required to be given to the original land owners to submit their objections and suggestions and at that stage, principles of natural justice is required to be read into. Under the circumstances, the impugned Preliminary Town Planning Scheme No.6(Unja) sanctioned by the State Government with respect to the lands of the petitioners
- original land owners deserves to be quashed and set aside.
Now the next question is what further steps to be taken by the State Government. It was suggested that the Preliminary Town Planning Scheme No.6 sanctioned by the State Government allotting Final Plot No. 294 to the petitioners - original land owners in lieu of their original Survey No.296- Original Plot No.207 admeasuring 4876 sq.mtrs. be treated as Notices to the petitioners - original land owners and other persons likely to be affected inclusive of the private respondent Nos.5 and 6 so that the petitioners and private respondent Nos.5 and 6 and any other affected persons can submit their objections and suggestions to the same.
Mr.Desai, learned senior advocate appearing on behalf of the petitioners and Mr.Navin Pahwa, learned advocate appearing on behalf of the respondent Nos.5 and 6 have stated at the bar that the petitioners and the respondent Nos.5 and 6 respectively shall submit their objections and suggestions against the same at the earliest.
In view of the above and for the reasons stated above, the petitions succeeds. The impugned Preliminary Town Planning Scheme No. 6 sanctioned by the State Government in exercise of the powers under sec.65 of the Act in so far as land belonging to the petitioners and/or qua the petitioners - original land owners is hereby quashed and set aside. Let the Preliminary Town Planning Scheme sanctioned by the State Government with respect to the lands in question of the petitioners be treated as a notice inviting objections and suggestions and it will be open for the petitioners and respondent Nos.5 and 6 and all other persons likely to be affected, to submit their objections and suggestions at the earliest and thereafter, the State Government is directed to take appropriate decision in accordance with law and on merits, after considering the objections and suggestions, if any, received and considering sec.65 of the Act. All the questions, whether such a proposed modification would be a substantial modification or of correcting an error, irregularity or informality are kept open. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik Top