Gujarat High Court
Laxmanbhai Bhurabhai Bharwad vs State Of Gujarat on 14 March, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/7839/2018 ORDER DATED: 14/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7839 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 7839 of 2018
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LAXMANBHAI BHURABHAI BHARWAD
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1,2,3,4
MR. AYAAN PATEL, AGP for the Respondent No.1
DIPAK N JOSHI(1689) for the Respondent(s) No. 2
MR DEEP D VYAS(3869) for the Respondent(s) No. 4
MR DILIP L KANOJIYA(3691) for the Respondent(s) No. 7
NOTICE SERVED BY DS for the Respondent(s) No. 3,5,6
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 14/03/2022
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioners for following relief:-
"(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction for quashing and setting aside the Town Planning Scheme No.84 (Vatva-4), Ahmedabad qua the Final Plot No.23/1 admeasuring 2730 sq.mtr. and be further direct the respondent authorities to vary the Town Planning Scheme No. 84(Vatva-4), Ahmedabad and be further direct the respondent authorities to correct the Town Planning Scheme No.84 (Vatva-4), Ahmedabad so far as the situation and location of survey no.36/1/1 is concerned and further be direct the respondent authorities to allot the Final plot to the petitioners on the same place where at present the survey no.36/1/1 is situated."
[2] The challenge is to Town Planning Scheme No. 84 (Vatva-4) (preliminary) sanctioned by the Government of Gujarat on 23.10.2017 regarding land bearing survey no.34/2, 35, 36/1/1, 36/2, against which the authorities allotted original plot No.23/1 and Final Page 1 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 Plot No. 23/1 of village Vatva, Taluka, City East, District:
Ahmedabad.
[3] It is the case of the petitioners that the petitioners are the owners and occupiers of five survey numbers i.e. survey No.34/2 admeasuring 910 sq.mtrs, survey No.35 admeasuring 708 sq.mtrs, survey No.36/2 admeasuring 304 sq.mtrs, survey No.36/1/1 admeasuring 2630 sq.mtrs and survey No.40 admeasuring 5160 sq.mtrs. After the introduction of the Town Planning Scheme No. 84 (Vatva-4), the Town Planning Authority at the stage of draft town planning scheme has given two final plot to the present petitioners i.e Final Plot No.23/1 admeasuring 3153 sq.mtrs against survey Nos.34/2, 35, 36/1/1 and 36/2. Against the survey No.40, a separate final plot No.23/2 is allotted by the authority. The main dispute in the present petition is in respect of Final Plot No.23/1, allotted by the authority against four survey Nos. i.e. 34/2 admeasuring 910 sq.mtrs, survey No.35 admeasuring 708 sq.mtrs, survey No.36/2 admeasuring 304 sq.mtrs, survey No.36/1/1 admeasuring 2630 sq.mtrs. The main grievance of the petitioners is pertaining to the original survey No.36/1/1 which is the biggest survey number of the present petitioners so far as the final plot No.23/1 is concerned.
[4] Learned advocate Mr. Jigar Raval appearing for the petitioners submitted that the authority decided to frame the town planning scheme No.84 (Vatva-4) under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short "the Act"). The said land included in the draft town planning scheme alongwith the other land of the present petitioners and against that the authority has given Final Plot No.23/1. The present petitioners came to know that there is some mistake regarding the location of survey No.36/1/1 and therefore, the petitioners made representation to the authority. The land of the present petitioners is situated on 18.00 meter road shown in the map at Annexure-D, but due to the mistake on the part of the Town Planning Authority, they have considered the Page 2 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 survey No.36/1/2 in place of the land of the petitioners i.e. 36/1/1. Therefore, petitioners requested all the authorities on so many occasions to do the needful in the matter. Again the petitioners made detailed representation to the Town Planning Officer on 11.02.2016.
[4.1] It is submitted that thereafter the Talati-cum-Mantri, Vatva in presence of the panchas, drawn the panchnama considering the possession of original owners over the land in question and submitted the same to the Town Planning Authority by communication dated 25.07.2016. The petitioners requested the Town Planning Authority to give the correct effect regarding the said land in the preliminary scheme, however the authority did not correct the situation of the final plot so far as the land of the petitioners is concerned.
[4.2] It is argued that it is the duty of the authority before even framing any draft town planning scheme, to verify the actual position of the land. It is also the duty of the authority to consider and verify all the revenue records available regarding the lands included in the town planning scheme. The survey No.36/1/1 is clearly situated on 18 meter road but somehow, the authority considered the land of petitioners at far from 18 meters road and considered the survey No.36/1/2 on 18 meter road. The Talati-cum- Mantri in presence of the panchas (one of the panchas was the co- owner of survey No.36/1/2), drawn the panchnama and prepared the map regarding the same. From the map, the land of the present petitioners is situated on 18 meter road. The final town planning scheme No.84(Vatva-4) is absolutely incorrect, so far as survey No.36/1/1 and the Final Plot No.23 is concerned and it is also clear that the authorities below despite of the available record and order of this Court, did not correct the said mistake while finalizing the town planning scheme.
Page 3 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022C/SCA/7839/2018 ORDER DATED: 14/03/2022 [5] Learned advocate Mr. Deep D. Vyas appearing on behalf of the respondent-corporation submitted that the petitioners have challenged the preliminary town planning scheme qua final plot No.23/1, inter alia, claiming that while sanctioning of the scheme there appears to be interchanged location between survey No.36/1/1 and 36/1/2, belonging to the petitioners and the private respondent No.7. It appears that the petitioners have filed Special Civil Application No.7298 of 2017, wherein vide order dated 20.04.2017, the objections that have been raised by the petitioners, were directed to be considered by the competent authority, under the scheme of the provisions of the Act. Further, in absence of competent order adjudicating the dispute of the location and the area, by the orders passed by the competent authority, mere possession by itself may not render valid authority in favour of the parties.
[6] Learned advocate appearing on behalf of respondent No.7 submitted that the petitioners are owners of five different survey numbers being 34/2, 35, 36/2, 36/1/1 and 40 which have been given final plot Nos.23/1 and 23/2. The respondent No.7 is the owner of revenue survey No.36/1/2 as well as 38/2 which are part of the said scheme and has been given final plot No.24. The said scheme was introduced in the year 2006. The petitioners on 05.06.2011 have written a letter to the Town Planning Officer to consolidate the various plots belonging to them. It further transpires that again on 23.08.2012 the petitioners have written a letter to the Town Planning Officer to consolidate their various plots. From time to time, the said scheme was introduced, revenue survey No.36/1/2 has been shown to be adjoining 18 meter road and that the said plot is to the south of revenue survey No.36/1/1. The petitioners are the owners of survey No.36/2, this survey number is to the north of revenue survey No.36/1/1. Therefore, also from a bare perusal of the said scheme and the fact that the petitioners are owners of revenue survey No.36/2 and revenue survey No.36/1/1, it transpires that the Page 4 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 revenue survey No.36/1/1 is adjoining survey No.36/2. He submitted that one Budhaji Shivaji Thakore was the original owner of lands bearing revenue survey No.36/1/2 and revenue survey No.38/2 and since the inception final plot No.24 has been included in the said scheme to be adjoining 18 meter road. Even various part plans issued by the concerned authorities in the year 2014 clearly show revenue survey No.36/1/2 to be adjoining 18 meter road. He submitted that the respondent No.7 after due diligence and confirming the location of the land as evident from the part plants, purchased the said land from the legal heirs of Budhaji Shivaji Thakore by way of registered sale deed dated 23.10.2005 for consideration amount of Rs.1,12,56,500/-. Even from the recital of the said registered sale deed, it is mentioned therein that there is 18 meter road on the southern side of the said land where final plot No.23/1 is to the northern side of the said land.
[7] The Court has heard submissions of rival parties and perused the documents placed on record. In exercise of the powers conferred with the Act, the said Authority prepared the Draft Development Plan which was sanctioned by Government by its Urban Development & Urban Housing Department Notification No.GH/V/2 1/UDA/1177/646(3)-Q-2 on 30.01.1978. Thereafter Ahmedabad Urban Development Authority prepared and submitted Revised Draft Development Plan which was sanctioned by State Government by its Urban Development & Urban Housing Department "Notification No.GH/V/21 of 2002/DVP/1599/1368/L, on 18.05.2022. Thereafter, Ahmedabad Urban Development Authority prepared and submitted Revised Draft Development Plan which was sanctioned by State Government by is Urban Development & Urban Housing Department Notification No.GlVV/107 of 2014/DVP/112013/4777/L on 20.12.2014. In pursuance of the provisions constrained in clause-(m) of subsection-(2) or section-12 of the said Act made the Regulations which are called the "Draft General Development Control Page 5 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 Regulations" & also Government of Gujarat Sanctioned variation in GDCR ws-116A (2),122(1) of said Act on 01.10.2017 in the revised Draft Development Plan of Ahmedabad Urban Development Authority (AUDA) (Including Ahmedabad Municipal Corporation Area) Ahmedabad Municipal Corporation had declared its intention to prepare Draft Town Planning Scheme No. 84 (VATVA-4), after following the due procedures. As per Act, Ahmedabad Municipal Corporation prepared the proposals of the Draft Town Planning Scheme and submitted it to the State Government under Section 48(1) of the Act. The State Government under its Urban Development and Urban Housing Department's Notification No. GH/ V/118 of 2006/TPS-112005-739-L dated 21-04-2006, sanctioned the Draft Town Planning Scheme No. 84 (VATVA-4) with modification under Section 48(2) of the Act.
The State Government under its Urban Development & Urban Housing Department Notification No.GH/V/68 OF 2007/TPV- 102006/6295-V dated 02.02.2007, appointed the Town Planning Officer Unit Bodakdev, Ahmedabad under section 50(1) of the Act to finalize the said Draft Town Planning Scheme.
The Town Planning Officer entered upon his duty in the Draft Town Planning Scheme No. 84(VATVA-4) on 15.03.2007 which was published in Government gazette on dated 05.04.2007 part II Miscellaneous Notices and Advertisements in page no. 371 to 372 and daily local newspaper 'Gujarat Samachar' on 18.03.2007 and 'Sandesh' on 19.03.2007 for receiving objections & suggestion for preparing the Preliminary Scheme under Section 5(1) of the Act.
Thereafter, the State Government under its Urban Development and Housing Department Notification No. GH/V-68 Of 2007/TPV-102006-6295-v dated 02.02.2007, appointed the Town Planning Officer, Unit No.12, Ahmedabad, under section 50(1) of the Page 6 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 Act to finalize the Draft Town Planning Scheme No. 84 (VATVA-4).
As per Proposal of sanctioned Draft Town Planning Scheme No.84 (Vatva-4) R.S.No. 34/2,35,36/1/1,36/2, and 40 earmarked as an Original plot No. 23/1 & 23/2 (subsequent Area: 4552 sq.m, 5160 sq.m Total O.P.Area: 9712 sq.mt) allotted Final plot no. 23/1, 23/2 (subsequent Area: 3153 sq.m, 2674 sq.m. Total F.P. Area 5827 sq.mt, where Deduction was 40%.
Town planning officer followed all the Prescribed Procedure required as under the Act and declared decision of Preliminary Town planning Scheme under section 52(2) & 64 of the Act and submitted the Preliminary Scheme to Government for its sanction. The State government under its Urban Development & Urban Housing Department Notification No GH/V7292 of 2017/TPS/112017-3654L, dated 23.10.2017 under section 65 of the Act, Sanctioned the Prelim Scheme and it becomes part of the Act.
As per Sanctioned Preliminary Town Planning Scheme No.84 (Vatva-4), the land of Survey No. 34/2, 35, 36/1/1, 36/2 earmarked as an Original Plot No. 23/1 (Area: 4552 sq.mt) In lieu of allotted the Final Plot No. 23/1 (Area: 2730 sq.mt. where deduction was 40%.
[7.1] The Town Planning Officer issued notice to the land owners regarding the sanctioned draft scheme proposal for giving objections and suggestions on 29.09.2007 and 25.04.2008, but the land owners or their representatives neither remained present nor submitted any objection against the proposal of draft town planning scheme. The Town Planning Officer also published notice in the local newspaper "Sandesh" on 27.02.2022 regarding draft scheme proposal but the petitioners/land owners did not remain present and submit any objection in writing. After that Town Planning Officer had issued notice regarding Tentative Proposal of land in question on 02.09.2013, but the petitioners/land owner did not remain present and did not produce any authentic evidence regarding land and the original position of Page 7 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 R.S.No. 36/1/1. After that the Town Planning Officer also published the notice in local newspaper, "DIVYBHASKAR" on 03.10.2013 regarding Tentative Proposal of Town Planning Scheme No.84 (Vatava), but petitioner did not respond at that time also.
[7.2] After following all the procedures laid down under Said Act, Town Planning officer declared his decision on 17.11.2016 of Preliminary Town Planning Scheme No. 84 (Vatva-4) as per Section 52(1) of the Act and submitted to the Government under Section 52(2) & 64 of Act on 31.03.2016. As per Provision of said Act and said rules, the Town Planning Officer informed the owners through form-(j) about the decision taken by him for the said survey number.
[7.3] The petitioners made representation before the Town Planning Officer to correct the location of revenue survey No.36/1/1 and 36/1/2 as per their possession in the Town Planning Scheme No.84 (Vatva-4), but did not submit any authorized revenue record (Hissa-mapani) to correct the same. The location of revenue survey No.36/1/1 and revenue survey No.36/1/2 is shown as per as per Revenue record/DILR in sanctioned Draft Scheme & Preliminary Town Planning Scheme No. 84 (Vatva-4). The petitioners requested to the authority to correct the location of revenue survey No.36/1/1 & 36/1/2 in the Town Planning Scheme as per their possession but did not submitted any authorized Revenue record (Hissa-mapni) to correct the same. The Town Planning Officer wrote a letter dated 05.08.2016 to DILR-Ahmedabad, for actual location of R.S.No.36/1/1 and 36/1/2, as per D.l.L.R record. In reference to that, D.I.L.R replied on 03.09.2016. As per Reply of D.I.L.R., the petitioners have Produced "Talati panchnama", & rough sketch of Hissa mapni of land which is not an authentic document, to rectify/correct location of R.S.No.36/1/1 and 36/1/2. No relevant authentic document to support the claim made by the petitioners was produced before the Town Planning Officer.
Page 8 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022C/SCA/7839/2018 ORDER DATED: 14/03/2022 [7.4] After giving ample opportunities to the petitioners to produce
the authentic document regarding the location of revenue survey Nos.36/1/1 and 36/1/2, the petitioners had not produced any authentic document and after following all the prescribed procedure laid down under Act, the Town Planning officer declared his decision of Preliminary Town Planning Scheme No. 84 (Vatva-4) under Section 52(1) of the Act on 17.11.2016 and submitted the Preliminary Town Planning Scheme No.84 (Vatva-4) to the Government under Sections 52(2) and 64 of the Act. On 31.03.2016, the State government has sanctioned the scheme vide Urban Development & Urban Housing Department Notification No.GH/V/292 of 2017/TPS/ 112017-3654L, dated 23.10.2017. The petitioners have not submitted authentic Revenue Record in support of their demand to correct the location of R.S.No.36/1/1, but Petitioner Produced a "Hissa", as per Talati panchnama, & rough sketch of Hissa of land, which is not an authentic document to correct the location of land as per D.I.L.R. letter dated 03.09.2016.
[8] The Court has perused the part plan produced at Annexure-R1 and the description form No.F and as per Rule 21 and 35 of the Gujarat Town Planning and Urban Development Rules, 1979, the Town Planning Scheme No.84 (Vatva-4) is finalized. It is not in question that the petitioners are also having various survey numbers running in their name being survey No.34/2, 35, 36/1/1 and 36/2, whereas the private respondent who has purchased this plot from one namely Budhaji Shivaji, the original owner which pertains to survey No.36/1/2 and therefore, if the map is same then survey No.36/1/1, 36/2, 34/2 and 35 given OP No.23/1 and F.P.No.23/1. All the aforesaid survey numbers are contagious to each other and therefore, only from the petitioners' representation to the Town Planning Officer to give one final plot to all the contagious survey numbers, whereas the original survey No.36/1/2 was on one side of the all the aforesaid contagious numbers, the contention of the petitioners that survey No.36/1/1 was separate from rest of the survey numbers, appears to be an afterthought so as to gain Page 9 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022 C/SCA/7839/2018 ORDER DATED: 14/03/2022 plot of land abutting to 18 meter road. The closer look at the plan produced on record would indicate that in natural course of town planning all the survey numbers of one party will be pooled together especially the survey numbers. which are contagious to give one original plot and consequentially one final plot, like in the present case.
[9] The petitioners came to know that the Town Planning Officer is likely to send the town planning scheme to Government for sanction and therefore, the petitioners approached this Court by way of Special Civil Application No.7298 of 2017 which was disposed by this Court vide order dated 20.04.2017 by directing the State Government to consider the objection of the petitioners.
[10] In view of the aforesaid reasonings, no case is made out by the petitioners for interference to quash or revise town planning scheme in so far as survey number in question is concerned. The petition therefore deserves to be and the same is hereby dismissed.
[11] In view of the order passed in the main matter, no order is required to be passed in the Civil Application and hence, stands disposed of accordingly.
(A.Y. KOGJE, J) SIDDHARTH Page 10 of 10 Downloaded on : Sat Dec 24 12:52:02 IST 2022