Gujarat High Court
Shree Zalavad Gujarati Kansara ... vs Town Planning Officer & 3 on 28 April, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/LPA/2686/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2686 of 2010
In
SPECIAL CIVIL APPLICATION NO. 3696 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SHREE ZALAVAD GUJARATI KANSARA VIDYOTEJAK
SANSTHA....Appellant(s)
Versus
TOWN PLANNING OFFICER & 3....Respondent(s)
================================================================
Appearance:
MRS KETTY MEHTA, ADVOCATE with MR SATYEN B RAWAL, ADVOCATE
for the Appellant(s) No. 1
MR LB DABHI, AGP for the Respondent(s) No. 4
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 3
MR VIMAL A PUROHIT, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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Page 1 of 27
HC-NIC Page 1 of 27 Created On Wed Aug 16 08:25:57 IST 2017
C/LPA/2686/2010 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 28/04/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The appellant, a duly registered Trust, has preferred this appeal under Clause 15 of the Letters Patent being aggrieved and dissatisfied with the oral order dated 18.8.2010 passed in Special Civil Application No.3696 of 2008 passed by learned Single Judge, whereby a writ-petition filed by the petitioner- Trust raising manifold prayers against the Chief Officer of Vadhvan Municipality, Town Planning Authorities and District Collector, Surendranagar, came to be rejected.
2. If the prayer clause of the writ-petition is perused, it is mainly with regard to issuance of writ, order or direction to the respondents to allot land in lieu of deficit land to the petitioner- Trust on account of merger of Survey No.1871 in Vadhvan Town Planning Scheme No.1 and further to hand over open plot of land to the petitioner out of the Final Plot No.121 or 122 by duly demarcating boundaries of such plot and, inter alia, it was prayed to direct the respondents to produce relevant information and documents concerning the subject land etc.
3. Before learned Single Judge various facts were stated and in the context of such facts legal issues were raised. According to the petitioner on 9.11.1966 land bearing Survey No.1871 admeasuring 2579 sq.mtrs. (3085 sq.yd.) was purchased by Page 2 of 27 HC-NIC Page 2 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT virtue of registered sale deed executed on the same day from erstwhile owner Shah Vadilal Rameshchandra. By Notification dated 6.7.1995 Vadhvan Town Planning Scheme came to be introduced and Original Plot No.30/1 and 30/2 came to be given Final Plot No.121 and 122 respectively and above Final Plots were allotted in joint ownership of 12 persons by Town Planning Officer for which no consent was given or obtained as contemplated under the Act. The petitioner being aggrieved by such exercise of powers by Town Planning Officer preferred Municipal Case No.8 of 1994 before the Collector on 16.12.1995 for allotment of land in lieu of merger of land of the petitioner into Town Planning Scheme which came to be rejected by the Collector. According to the petitioner-Trust, as per sale deed, land was admeasuring 2579.93 sq.mtrs. and as per lay out plan of the petitioner-Trust, the entire land with all details and measurements are shown. The total area of the plot is 1823.22 sq.mtrs. and thus deficit of land of 756.21 sq.mtr. is to be allotted to the petitioner by drawing panchnama by metes and bounds. It is further the case of the petitioner that an application was preferred on 9.9.1999 to the Chief Officer in which an order was passed for allotment of land out of Final Plot No.122 in lieu of deficit land admeasuring 625 sq.mtr. on the eastern side of the Final Plot No.125. However, the above order was challenged by aggrieved party in Municipal Case No.14 of 2002 before the District Collector. By order dated 16.8.2004 earlier order came to be quashed and set aside and directions were issued to the Chief Officer to start proceedings under the Town Planning Act afresh. That various representations were made to the Chief Officer of the Municipality and Town Planning Authorities but no decision was taken and even earlier a writ petition being Special Civil Page 3 of 27 HC-NIC Page 3 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT Application No.16292 of 2006 was preferred before this Court claiming various reliefs against Chief Officer, Town Planner and Town Planning Committee for handing over possession of deficit land, which came to be disposed of with the directions issued therein.
4. As the order passed by learned Single Judge rejecting all contentions of the petitioner is in narrow compass, we would like to reproduce the said order, which reads as under:-
"1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order and/or direction, directing the respondents to allot land in lieu of deficit-land to the petitioner trust on account of merger of the Survey No.1871 in the Wadhwan Town Planning Scheme No.1.
The petitioner has also prayed for an appropriate writ, order and/or direction, directing Town Planning Officer and/or Town Planning Commissioner to hand over the open plot of land to the petitioner out of the Final Plot No.121 or 122 by duly earmarking/ demarcating the boundaries such allotted land and by recording the rojkam of such delivery of possession to the petitioner.
2. Having heard Mr.Satyen Raval, learned advocate appearing on behalf of the petitioner and Mr.M.R.Mengdey, learned Assistant Government Pleader appearing on behalf of respondent-State Authorities and Mr.P.S.Champaneri, learned advocate appearing on behalf of respondent No.3, it appears that the dispute is with respect to land bearing original survey No.1801 paiki and the said land in question was within the area of Town Planning Scheme Wadhwan No.1, which was given Original Plot Nos.30/1 and 30/2. However, it appears that thereafter some plottings were made and it was divided into 12 plots. Thereafter on the aforesaid Town Planning Scheme, Wadhwan No.1 being sanctioned, in lieu of original land bearing Survey Nos.1801 paiki, Original Plot Nos.30/1 and 30/2. In lieu of original Plots, Final Plot Nos.121 and 122 are allotted jointly. In redistribution and valuation statement, it is specifically mentioned while allotting Final Plot Nos.121 and 122 that the rights of the owners in Final Plots are as per Page 4 of 27 HC-NIC Page 4 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT their shares in Original Plots. Thus, it appears that while preparing Town Planning Scheme Wadhwan No.1, there was a total reduction to the extent of 16% and Original Plot Nos.30/1 and 30/2 have been reduced to 16% while allotting Final Plot Nos.121 and 122. It appears that the petitioner is subsequent purchaser and who wants now an individual plot out of Final Plot Nos.121 and 122. As stated hereinabove, Final Plot Nos.121 and 122 are allotted jointly while sanctioning the Town Planning Scheme Wadhwan No.1. If the predecessor-in- title of the petitioner and others were of the opinion that they were required to be allotted separate plots, in that case, they were required to submit their objections at the time of Draft / Preliminary Town Planning Scheme before the Town Planning Officer in light of Section 45 of the Town Planning Act. It appears that no objections were raised at the relevant time and predecessor-in- title of the petitioner and others accepted the Town Planning Scheme as it is and Final Plot Nos.121 and 122 came to be allotted jointly. Therefore, no relief can be granted to the petitioner directing the concerned respondents to allot the petitioner a separate plot now and that too in absence of other co-owners/joint owners on finalization of the Town Planning Scheme Wadhwan No.1. Area have been changed and by directing the respondents to allow separate plot to the petitioner, it will tantamount to vary the Scheme, which is not permissible. Only remedy available to the petitioner would be to approach the Competent Civil Court for partition and for establishing his right. Even otherwise, the area and measurement of the original land has been reduced to 16%, respondents have no authority to allot the petitioner a separate plot, dehors the Town Planning Scheme Wadhwan No.1.
3. For the reasons stated hereinabove, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed. Notice is discharged. No costs."
(Emphasis supplied)
5. Mrs.K.A.Mehta, learned counsel appearing for the appellant-Trust would contend that the learned Single Judge not only recorded incorrect facts about plotting made and original plot came to be divided into 12 plots and about claim of the petitioner that the petitioner demands an individual plot out of Final Plot No.121 and 122 but also failed to consider vital Page 5 of 27 HC-NIC Page 5 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT legal issues raised and argued in the writ petition. Learned counsel emphasized that while giving the land to 12 persons on joint ownership basis no consent as contemplated under Section 45 (2) (c) of the Gujarat Town Planning Act was obtained and no exercise was undertaken by the Town Planning Officer to execute and enforce the procedure to determine the share of the individual persons including the appellant-Trust. According to her, a statutory duty is cast upon Town Planner by virtue of Section 45 (2) (d) to allot a Final Plot to any owner who is dispossessed of land in furtherance of the scheme and further to determine the share of the individual persons as envisaged under Section 52 (1) (ii) and no such exercise is undertaken inspite of repeated representations and directions issued by this Court in earlier round of litigation. It is further submitted that the writ petition is, therefore, filed seeking mandamus and/or appropriate directions against the Town Planner to undertake such exercise as envisaged under Section 52 (1)(ii) of the Town Planning Act determining share of individual in the Final Plot No.121 and 122 of the Scheme.
5.1 Learned counsel also emphasized resolution passed by Vadhvan Municipality on 31.1.2006, whereby it was decided that for proportionate allotment of the land to be made by dividing the share of each of the parties and the work is to be carried out by the office of the Chief Officer as well as Deputy Town Planner but even such resolution is also not complied with. The above aspects of law have not been considered by learned Single Judge and, therefore, the order impugned deserved to be quashed and set aside and prayer made in writ petition be granted as prayed for.
Page 6 of 27HC-NIC Page 6 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT 5.2 In addition to above, Mrs.Mehta, learned counsel for the appellant has drawn our attention and relied on oral order dated 17.10.2011 passed in this appeal in which it is recorded that entitlement of the petitioner to a land, admeasuring 756.21 sq.mtr. under the Town Planning is not under dispute and stand taken by respondent authority was deprecated and direction was issued for taking appropriate steps to hand over possession of 756.21 sq.mtr. of land to the petitioner by measuring and identifying it by metes and bounds, even if need be, to take help from government agencies like DILR.
5.3 Learned counsel has referred to resolution passed by Vadhvan Municipality Planning Committee, Vadhvan, dated 31.1.2006, communication dated 7.1.2007 by Chief Officer, Vadhvan Municipality to the petitioner/appellant, that all joint plot holders together to submit deductible land per holder and to submit lay out to the authority, which require approval of planning committee of the District Collector. According to her, this would amount to abandoning statutory duty cast upon the Chief Officer, who has to carry out measurement by metes and bounds and by earmarking the land to hand over deficit land to the petitioner. According to her, inspite of directions issued by this Court in Special Civil Application No.16292 of 2006 by order dated 7.8.2006 and District Collector passing the order, no action is taken to which there is no finding or declaration as sought for in the order passed by learned Single Judge. Inter alia, it is submitted that in the affidavit filed by the Chief Officer of Vadhvan Municipality different stand is taken at different stages of proceedings which reveal that the authority is determined to harass the petitioner and to deprive legitimate share in the land. According to her, Form No.F Page 7 of 27 HC-NIC Page 7 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT prepared under Rule 21 and 35 of the Rules framed under the Gujarat Town Planning and Urban Development Act 1976, clearly reveal total land of survey number, original plots and final plots along with entitlement of the land of individual holder. By drawing our attention to map/sketch at Annexure- XIII to the affidavit-in-reply filed by respondent no.3 dated 7.12.2011, it is submitted that the building constructed for providing hostel accommodation and other facilities to the students studying and it require open land as per entitlement.
5.4 Mrs.Mehta relied on the decision of Full Bench of this Court in the case of Dungarlal Harichand v. State of Gujarat and Others reported in 1976 GLR 1152 in support of her argument that the validity of the legislative measure can be gone into even in writ jurisdiction at least to the limited extent to consider whether there is any transgression of jurisdiction of the authorities concerned and whether the Scheme has finally emerged is totally inconsistent with the Act. It is only the fundamental breaches appear on record, i.e. where minimum statutory essentials are not complied with, which result in a total lack of jurisdiction and not other procedural errors or defect that would render a scheme, which had become a legislative measure and a part of the Act, liable to attack or challenge in the Court on the ground that it is null and void.
5.5 The above decision considered earlier decisions of Division Bench in the case of Mohanlal Jesingbhai v. P.J.Patel, Town Development Officer, Ahmedabad Municipal Corporation and others reported in (1970) 11 GLR 135 and held that two decisions referred to in 11 GLR Page 8 of 27 HC-NIC Page 8 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT 943 and 11 GLR 1035 were wrongly decided only to the extent that right to individual notice under Rule 21 (3) and (4) is held to be so mandatory as to have a nullifying consequence.
5.6 Next in line of decisions relied on by learned counsel for the appellant is in the case of Jayamal Jayantilal Thakore v. Chief Commissioner of Income Tax and others reported in 1998 (1) GLR 43: 39 (1) GLR and submitted that when the petitioner establishes failure of duties to be performed by the authorities under the Statute, High Court can certainly issue directions to such statutory authorities to perform their duties within the parameters of the statute.
5.7 The decision relied on is in the case of Municipal Corporation v. M/s.Chelaram & Sons and another reported in AIR 1997 SC 31. The above decision was relied in support of the argument about procedure to be followed before issuing the direction for eviction under Section 54 read with Rule 27 and that notice merely calling upon occupant to vacate the premises without asking him to put his defence before the authorities would violate the principles of natural justice.
5.8 Similar such view taken by the Apex Court in the case Jaswantsingh Mathursingh and Another v. Ahmedabad Municipal Corporation and Others reported in 33 (1) GLR 253 interpreting Rule 21 (3) of Bombay Town Planning Rules, 1955 framed under the provisions of the Bombay Town Planning Act, 1954. That apart from the general notice as envisaged in Rule 21 (1), a special notice to the person in actual possession as laid down in Rule 21 (3) is absolutely Page 9 of 27 HC-NIC Page 9 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT necessary. The above decision partly overruled Full Bench decision in the case of Dungarlal Harichand (supra) by making it clear that the legislature had made a distinction between the general notice and special notice as envisaged in Sub-rule (1) of Rule 21 and Sub-rule (3) of Rule 21, which was in addition to the former.
6. Mr.S.P.Majmudar, learned counsel appearing for the respondent, Chief Officer of Vadhvan Municipality, has opposed grant of any relief to the appellant/petitioner as prayed for and submitted that the very basis of the prayer in the writ petition filed is misconceived. When Special Civil Application No.16292 of 2006 was filed an ex-parte order was obtained seeking directions against the District Collector and the petition came to be disposed of on 7.7.2006 in which neither the Chief Officer nor the Municipality was heard and the above order formed basis for various communications/ demands/ representations before the authorities and correct version was not presented before this Court at any point of time and reference is also made to order dated 31.1.2012 passed by the Apex Court in Special Leave to Appeal (Civil) No.2375 of 2012, wherein the permission was granted to apply to the High Court in view of recording of incorrect facts in oral order dated 17.10.2011 about absence of dispute of the subject land admeasuring 756.21 sq.mtrs. for which the petitioner was entitled, Civil Application for modification was preferred being Civil Application No.2230 of 2012 in which order was passed on 7.10.2015 to hear the above application along with this Letters Patent Appeal and, therefore, record of the above Civil Application be also considered which contained complete record of subject appeal.
Page 10 of 27HC-NIC Page 10 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT 6.1 Mr.S.P.Majmudar placed reliance on various affidavits filed by the Chief Officer of Vadhvan Municipality, respondent no.3, dated 7.12.2011 and 20.1.2012 and also of Town Planning Officer dated 10.12.2009 and 26.11.2011 and submitted that no legal right of the appellant is violated. According to learned advocate, it is evident from the affidavit filed by Town Planning Officer that Draft Town Planning Scheme No.1 (Vadhvan) prepared by the Vadhvan Area Development Authority was submitted to the State Government for sanction under Section 48 of the Gujarat Town Planning and Urban Development Act, which came to be sanctioned on 28.4.1983. As a consequence, Town Planning Officer was appointed under Section 50 of the Act and after inviting objections and suggestions from all affected persons a decision was rendered and preliminary scheme was submitted to the State Government for sanction. The record reveals notice for inviting objection to all on 2.4.1988 and even recording of statement of the appellant by Town Planning Officer pursuant to above notice on 23.4.1988 and by order of Town Planning Officer all objections of the appellant came to be rejected on 13.5.1988. Even request made to reconsider the decision was also rejected by Town Planning Officer and that no change can be made in the preliminary Town Planning Scheme as per the notification of even date which came into force with effect from 12.12.1994. Thus, it cannot be said that the appellant was not given any opportunity of hearing before the authority under the TP & UD Act. Learned counsel for respondent no.3 has further invited our attention to notice issued under Rule 26 for distribution and finalization of share in the Final Plot No.121 and 122 in the year 1995 and, ultimately, Page 11 of 27 HC-NIC Page 11 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT by Notification dated 6.7.1995 State Government sanctioned the Final Town Planning Scheme. Earlier in Municipal Case No.8/1994 by an order dated 16.12.1995, the District Collector directed the appellant to represent the case before Vadhvan Municipality and after verifying the record decision is to be taken. However, though Chief Officer was not having jurisdiction, ex-parte order was passed handing over 625 sq.mtrs. of land of Final Plot No.122 of the Scheme in favour of the appellant, inspite of the fact that objections were raised by the aggrieved persons. Against above decision, Municipal Case No.14/2002 was registered before District Collector, Surendranagar, and in exercise of powers under Section 258 of the Gujarat Municipalities Act, initially interim relief was granted on 20.6.2002 and after hearing the parties, examining the record, including that of finalization of Town Planning Scheme and deduction of 16% of the land qua individual owner of the Final Plots, the District Collector by an order dated 16.8.2004 permanently stayed the order of Chief Officer of the Municipality which was under challenge and the stay order attained finality for all purposes.
6.2 Therefore, once the Town Planning Scheme attained finality under the Act, belated plea of the appellant is devoid of merits and emerges only on the strength of ex-parte directions obtained qua order dated 7.7.2006 in Special Civil Application No.16292 of 2006 and, thereafter making representations and demands from the authority and rejection of writ petition by learned Single Judge vide impugned order deserves no interference.
6.3 Learned counsel reiterated that by order dated 31.1.2012 Page 12 of 27 HC-NIC Page 12 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT passed in Special Leave to Appeal (Civil) No.2375 of 2012, the respondent Municipality, petitioner therein, was permitted to apply to the High Court for modification of order dated 17.10.2011 and, accordingly, Civil Application No.2230 of 2012 was filed which was ordered to be heard with this Letters Patent Appeal as per order dated 9.10.2015 and, therefore, all relevant documents annexed with the above Civil Application may also be taken into consideration while deciding the appeal finally.
7. Learned Assistant Government Pleader appearing for the District Collector, Surendranagar, respondent no.4 herein has also made submissions based on affidavit-in-reply filed on 29.1.2012. He submitted that representative of the petitioner addressed communication dated 16.11.2011 to the Collector, Surendranagar for allotment of land pursuant to order dated 17.10.2011. By letter dated 14.12.2011 of Collector, it was instructed to Chief Officer, Vadhvan Nagarpalika and Town Planner to inform about the action taken pursuant to order dated 17.10.2011. By letter dated 15.12.2011, the petitioner complained the Chief Minister about non-compliance of order of Honourable High Court and conduct of the officer. Pursuant to which a meeting of the concerned officers was called and they were instructed to see to it that the direction issued by the Honourable High Court is complied with. As per letter dated 31.12.2011 of Chief Officer, the petitioner was informed in 2007 by letter dated 7.1.2007 that the name of the petitioner is not on record. It was also informed that since twelve persons are interested in Final Plot Nos.121 and 122, unless they present a layout plan about how they would like to have the land allotted, it will be difficult to hand over the land of Final Page 13 of 27 HC-NIC Page 13 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT Plot.
7.1 By letter dated 18.5.2007, the petitioner was informed that as there is joint ownership, after deducting proposed deduction proportionate land and layout for the same is to be presented so as to comply with the direction of this Court issued by order dated 7.8.2006 in Special Civil Application No.16292 of 2006. He further submitted that prior to the petitioner serving the copy of order dated 20.1.2012, a letter was written by the Collector to Chief Officer, Vadhvan Nagarpalika, in reply to which it is stated by the Chief Officer that though measurement was carried out with the help of DILR, land of the petitioner could not be identified as layout plans have not been submitted. Thereafter, a meeting of Chief Officer, DILR, City Survey and Town Planner was called and it was told that if the land is identified to be of the petitioner, the possession be handed over to the petitioner.
7.2 Learned AGP further submitted that the petitioner had purchased the land fully knowing the fact that the land for the road as sanctioned by the Government is to be kept open. He also submitted that 80 feet wide road was contemplated at the site since 6.11.1968 and, therefore, that part of the land was not available to be retained by the petitioner. He further submitted that even if the sale deed dated 9.11.1966 with regard to the land in question is seen, there was no sanctioned layout plan. He further submitted that the petitioner is already in possession of excess land and possession of 450.15 sq.mtr. of land is required to be handed over by the petitioner for 80 feet road and the petitioner is entitled to retain only 58.77 sq.mtr. of land as per their share in the Final Plot. In view of Page 14 of 27 HC-NIC Page 14 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT above, he prayed to dismiss present appeal.
7.3 Learned AGP has also drawn our attention to reply dated 10.12.2009 of Town Planner, Surendranagar, and submitted that when Draft Scheme was submitted and sanctioned by the State Government name of the present appellant was not reflected either in revenue record or in the city survey record and no objections were raised against the draft scheme. Learned AGP placed reliance on the documents and notification of publication of Draft Town Planning Scheme and a statement for re-distribution under Rule 21 and 35 of the Rules framed under the Act 1976, which contained city survey number, original plots and final plots and name of the owner, the map prepared of the land situated in the Town Planning Scheme which is subject matter of the appeal and failure on the part of the appellant to get the lay out plan sanctioned with the signatures of the holder of the original plot. Further, another affidavit dated 26.11.2011 filed by the Town Planner, Surendranagar, which contained decision dated 13.5.1988 of Town Planning Officer and Town Planning Scheme No.1 of Vadhvan in which reply filed by the present appellant to the notice of re-constitution though no name was reflected in any record was with regard to the alignment of 24.00 meter road to the west side of the trust property and a request made that such property be kept as per the old proposal by which the building of the trust was not to be affected. The Town Planning Officer has given reasons for not accepting such request since the appellant-trust had constructed the building without leaving any margin and such subsequent extension was illegal and not as per the provisions of the Development Controlling Regulations and requirement of a continuous 24.00 meter of Page 15 of 27 HC-NIC Page 15 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT road linking different parts of the town for which width could not be reduced. Thus, request was not accepted as early as in the year 1988.
7.4 Accordingly, it is submitted that none of the contentions of the learned counsel for the appellant has merit either of law or on facts and decisions relied on by her have no applicability in the facts of this case, so submitted herein above.
8. Having heard learned counsel appearing for the parties, perusal of record, including order under challenge, we may refer to Sections 45 and 52 (1) of the Act 1976 and Rules 26 and 27 of the Rules 1979.
"45. (1) In the draft scheme referred to in section 44, the size and shape of every plot shall be determined, so far as may be, to render it suitable for building purposes and where the plot as already built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces.
(2) For the purposes of sub-section (1), the draft scheme may contain proposals-
(a) to form a final plot by the reconstitution of an original plot by the alteration of its boundaries, if necessary;
(b) to form a final plot from an original plot by the transfer of any adjoining lands;
(c) to provide with the consent of the owners that two or more original plots which are owned by several persons or owned by persons jointly be held in ownership in common as a final plot, with or without alteration of boundaries;
(d) to allot a final plot to any owner dispossessed of land in furtherance of the scheme; and
(e) to transfer the ownership of a plot from one person to another.
(3) Where under clause (k) of sub-section (3) of section 40, the Page 16 of 27 HC-NIC Page 16 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT purpose to which buildings or specified areas may not be appropriated have been specified, the buildings shall cease to be used for a purposes other than the purposes specified in the scheme within such time as may be specified in the final scheme and the person affected by the provision shall be entitled to compensation from the appropriate authority in the manner and according to the method prescribed :
Provided that in ascertaining such compensation the time within which the person affected was permitted to change the use shall be taken into consideration."
52. Contents of preliminary and final scheme.-(1) In a preliminary scheme, the Town Planning Officer shall,-
(i) after giving notice in the prescribed manner and in the prescribed from to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots;
(ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;
(iii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with the provisions of section 81;
(iv) determine the period within which the works provided in the scheme shall be completed by the appropriate authority."
Rules 26 and 27 "26. Procedure to be followed by Town Planning officer under section 51 and under sub-section (1) of section 52.
(1) 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 shall state therein 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 Page 17 of 27 HC-NIC Page 17 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT areas comprised in the scheme and at the office of the Town Planning Officer.
(2) 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. (3) The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, publish 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 State that all 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 the Town Planning Officer within a period of twenty days from the publication of notice in the Official Gazette. Such notice shall also be pasted at the office of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality.
(4) 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.
(5) 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.
(6) 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.
(7) The scheme as drawn up by the town Planning Officer shall include particulars specified in rule 21 read with section 52. (8) The component parts of the scheme shall be so arranged that they may be readily referred to in connection with the map and plans.
(9) 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 newspapers announcing that the scheme shall be open 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 Page 18 of 27 HC-NIC Page 18 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT case may be. The Town Planning Officer shall also inform the President of the Board of Appeal about the publication of final scheme.
27. Manner of drawing of preliminary scheme and final scheme under Section 52.
The preliminary scheme drawn up by the Town Planning Officer shall contain relevant plans and forms with details referred to in rule 21 and the decisions recorded by the Town Planning Officer under sub-section (1) of section 52. The final scheme drawn up by the Town Planning Officer shall contain all plans of the preliminary scheme, forms, regulations for control of development and decisions recorded by the Town Planning Officer under sub-section (3) of section 52."
8.1 If the above Sections and Rules are perused, they provide for reconstitution of plots and Contents of Preliminary and Final Scheme, while Rules are pertaining to procedure to be followed by Town Planning Officer under Section 51 and Sub-section (1) of Section 52 of the Act and the Rule is about manner of drawing of Preliminary Scheme and Final Scheme under Section 52. In the context of contentions raised by learned counsel for the appellant about duty cast upon Town Planning Officer to follow the procedure under Section 45 (2) of the Act 1976, it is only about requirement of containing proposals to provide with the consent of the owners in case two or more original plots if owned by several persons or owned by persons jointly be held in ownership in common as a final plot with or without alteration of boundaries and to allot a final plot to one owner dispossessed of land in furtherance of the Scheme, but at the same time, the above reconstitution of plots are subject to restrictions on use of development of land after declaration of scheme under Section 49 of the Act, 1976. Under Section 48-A inserted by Gujarat Act 2 of 1999 with effect from Page 19 of 27 HC-NIC Page 19 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT 1.5.1999 vesting of land upon sanction of a draft scheme by the State Government under Sub-section (2) of Section 48 is absolute to the extent that all lands required by the appropriate authority for the purposes specified in clause (c),
(f), (g) or (h) of Sub-section (3) of Section 40 shall vest in the appropriate authority free from all encumbrances. The role of the Town Planning Officer comes into play as provided under Section 50 of the Act where within one month from the date on which the sanction of the State Government to a Draft Scheme is published in the official gazette, duty is cast upon the State Government to appoint a Town Planning Officer with requisite qualification prescribed and such officer is to perform the duties as provided under Section 51 read with Rule 26 of the Rules. Section 52 is only about contents of preliminary and final scheme in which notices are to be given for determining and defining the areas allotted to, reserved for, public purpose or for a purpose of the appropriate authority and also to persons affected by the Scheme. It also gives discretion upon Town Planning Officer in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such person to be determined by him.
8.2 In the facts of this case, as emerges from the record, which the petitioner has neither stated in the writ petition nor in the appeal about adequate opportunity provided by Town Planning Officer, Town Planning Scheme, Vadhvan No.1, to the petitioner on 13.5.1998 and request of the petitioner came to be rejected. The above fact is suppressed by the petitioner. A reasoned order passed in this regard reads as under:-
"There are several owners in the land comprised of Original Page 20 of 27 HC-NIC Page 20 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT Plot 30, notices to them, whose names are recorded in the revenue record or known to be interested in the land, were served and some of them have represented to allot Final Plot in their own land, in individual ownership. Since the clear record of all owners of land such as area, ownership, plot size, sanad, CTS number and individual entity of each is not available separately, Final Plot is allotted in combined ownership and accordingly, most of them, owners, interested persons were informed, made aware of the matter, those who appeared before TPO during personal hearing that if all of such details are not available even on search, final plot in combined ownership will be allotted. One of the owners, the Jhalawad Gujarat Kansara Vidhyottejak Trust (the appellant herein) though its name is not available in revenue record, on behalf of the Trust, Shri Dhirajlal Amratlal Kansara in response to notice of reconstitution, has represented that the alignment of 24.00 mtr. road, to the west of the Trust property should be kept as per the old proposal by which the building of the trust was not affected. By the present proposal, as per reconstitution, the building of the trust gets affected.
The Trust has constructed the building (Extension afterwards) without leaving any margin. Thus the subsequent extension is illegal and not as per the provision of the Development Controlling Regulation.
The proposed road is a continuous 24.00 mtr. road. It is thoroughfare road, it is necessary as it is in continuous link. As it is in continuous link, its width cannot be reduced in any circumstance. It is also below 66 kw electric line, hence, the alignment cannot be changed. Hence, the request is not accepted."
8.3 Thus, full opportunity was given to the petitioner- appellant Trust by Town Planning Officer as early as on 13.5.1988 to which no mention is made.
9. The genesis of the litigation before this Court in filing writ petition is the order dated 7.7.2006 passed in Special Civil Application No.16292 of 2006, which was passed in absence of respondent-Municipality. A careful perusal of the order reveal that no one appears for the respondent and leave was granted to join District Collector, Surendranagar, as party respondent.
Page 21 of 27HC-NIC Page 21 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT The said order is reproduced hereunder:-
"1. Leave to join District Collector, Surendranagar as party respondent.
2. The petitioner has preferred the petition for various reliefs and the principal contention of the petitioner is that after the order dated 16.8.2004 passed by the District Collector, Town Planning Authority of the Municipality has not taken any steps further to comply with the order passed by the Collector.
3. As such, for such purpose the petitioner could have approached the Collector and had the petitioner approached the Collector and the Collector declined to pass any order, the matter would have been different. In the present case no material is produced before this Court even to show that the petitioner pursued the matter before the Collector.
4. Under the above circumstances, the present petition is disposed of with the direction that if the petitioner approaches the District Collector for compliance of the order dated 16th August, 2004 passed by the Collector in Municipal Case No.14 of 2004 within a period of two weeks from today, the District Collector shall examine the matter and shall see that appropriate action is taken by the Town Planning Authority of the Municipality in accordance with law preferably within a period of six months from the date of receipt of the representation."
9.1 Thus, the directions against the District Collector were obtained by presenting incorrect and incomplete facts. On the strength of the above order from time to time various directions were given to which compliance was sought for till learned Single Judge disposed of the case finally. Even at the time of admission of this Letters Patent Appeal, oral order was passed on 17.10.2011 in which in para 2 it was recorded that "It is not in dispute that the petitioner was entitled to land, admeasuring 756.21 sq.mtrs. under the Town Planning Scheme." The above recording was incorrect, according to learned counsel for the Chief Officer of the Municipality and, therefore, they approached the Apex Court by filing Special Leave to Appeal (Civil) No.2375 of 2012 in which liberty was Page 22 of 27 HC-NIC Page 22 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT reserved to approach the High Court seeking appropriate modification with regard to recording of incorrect facts in oral order dated 17.10.2011 and disposed of said Special Leave to Appeal on 31.1.2012. Thereafter, Civil Application No.2230 of 2012 was filed by the Municipality in which order was passed on 09.10.2015 that record of the above Civil Application be considered at the time of hearing of Letters Patel Appeal, which reveals the manner in which the appellant has made attempt to mislead this Court. Even in this appeal also, subsequent orders were passed seeking an explanation from the District Collector, Surendranagar, and even Secretary of the concerned department of the State Government for non- compliance of the earlier order and affidavits were filed accordingly.
10. However, the facts remain almost undisputed are as under:-
10.1 That Sanction under Section 42 of the Act 1976 to the Town Planning Scheme No.1, Vadhvan, was given by the State Government on 28.4.1983, objections were invited under Section 50 of the Act by Town Planning Officer in which a representative of the appellant-Trust was heard and a reasoned order was passed by the Town Planning Officer on 13.5.1988 to which a reference is made in earlier paragraph of this order. That preliminary Town Planning Scheme was notified in the Gazette with effect from 12.12.1994. Even procedure was followed for distribution and finalization of share in the Final Plot Nos.121 and 122 as provided under Rule 26 and Final Town Planning Scheme came to be sanctioned by notification dated 6.7.1995. An order passed by the Chief Page 23 of 27 HC-NIC Page 23 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT Officer without jurisdiction was rightly set aside by the District Collector on 16.8.2004 in Municipal Case No.14 of 2006, which remained unchallenged and, thus, final scenario that emerges and correctly reflected in the affidavit dated 29.1.2012 filed by the District Collector-respondent no.4, in paragraph 7, 8 and 9 thereof, reads as under:
"7. Petitioner has purchased the piece of land fully knowing well that land for road as sanctioned by the Government is to be left un-constructed. Annexed hereto and marked as Annexure-X is a copy of layout plan which is of the adjoining land to the land of the petitioner. This is produced to bring to the notice the fact that 80 feet wide road was already contemplated at the then time i.e. as on 06.11.1968. This is to drive home fact that the petitioner was required to submit plan having 80 feet wide road in layout plan of the land and that part was not available to be retained by the petitioner.
8. Annexed hereto and marked as Annexure-XI is a copy of sale-deed dated 09.11.1966 with regard to the land of the petitioner. There was no sanctioned layout at the time of this sale-deed. Annexed hereto and marked as Annexure-R-XII is a copy of first of the communications dated 02.08.1969 requesting submission and get the lay out plan sanctioned. There are more such communications and the same may be produced for the perusal of the Hon'ble Court. The last of such communication is dated 29.09.1973. All these communications clearly indicates that petitioner has not got the layout plan sanctioned. Had at that time, petitioner submitted and got the lay out plan sanctioned, petitioner could have realized that land covered by 80 feet wide road was never available for considering as forming part for original plot of the petitioner. Following table and map at Annexure-XIII is worked out on approximation of the area to clarify the matter:
Sr. Description Sq.Mts. Sq.Yards
1 Land purchased as per sale 2579.45 3085
deed.
2 Land required to be kept for 1195.05 1429.3
road if the petitioner had
submitted layout plan (Area
marked as 4 & 3 in map)
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C/LPA/2686/2010 CAV JUDGMENT
3 Remaining Area of land of 1384.4 1655.7
Original Plot if petitioner had
submitted layout plan with
80 feet road.
4 Deduction @ 16.12% land of 223.17 266.9
original plot as per
T.P.scheme.
5 Area of land that would be 1161.23 1388.8
entitled to as per their share
in the final plot of
T.P.scheme.
6 Area of land in possession 1552.61 1856.89
From table above it can be seen that the petitioner is already in possession of land in excess to what they are entitled to. They are required to hand over possession of 450.15 Sq.Mts. of land for 80 feet road. It has been mentioned in purchase deed that they can use land after providing roads as sanctioned by government. After handing over possession of 450.15 Sq.Mts. of land for the road the petitioner are be entitled to get 58.77 Sq.Mts. of land as per their remaining share of final plot.
Nagarpalika would be in a better position to say about this being implementing agency. The calculation stated hereinabove is approximate and as per the understanding of the answering respondent but final view can be had from Nagarpalika only. As stated earlier Nagarpalika being implementing agency of town planning scheme.
9. The figures of 756 sq.meters as mentioned in the order, needs to be recalculated in view of the calculation shown hereinabove. The petitioner may please be directed to submit lay out plan and leave possession of land forming part of 80 feet road. Land measuring 58.77 Sq.Mts. may please be granted as remaining share of final plot as per T.P.Scheme."
10.2 The above affirmation on oath by the deponent is based on scrutiny of record with regard to framing of the draft scheme, objections received and consideration thereof and ultimately notifying Town Planning Scheme finally and that, therefore, the appellant has to submit lay out plan and leave possession of the land of 80 feet or equivalent thereto i.e. Page 25 of 27 HC-NIC Page 25 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT 24.00 meters for public road. Besides even the construction of the building is also carried out without leaving margin land as required under law and, even by making suitable adjustment, the appellant is not entitled to land more than 58.77 sq.mtrs.
10.3 Further, Form-F under Rule 21 and 35 of the Town Planning Act, 1976 pertaining to Re-distribution and Valuation Statement clearly state in remarks column about rights of owners in Final Plot will be as per the share in Original Plot and the owners to receive compensation in proportion to their share in Original Plot and to pay incremental and other contribution in proportion to their share in Final Plot.
11. Considering the factual scenario, as above, it cannot be said that there was a breach of provision either under Section 45 (2) and/or Section 52 (1) of the Act 1976 or Rules made thereunder and rejection of writ petition by learned Single Judge, though may have little incorrect recording of facts, however, do not entail any advantage to the appellant since on facts as well as on law, no case is made out by the appellant. That the conclusions drawn by learned Single Judge, as emphasized in earlier paragraph of this judgment, are based on appreciation of documentary record and the same cannot be termed as contrary to law warranting interference in this appeal. The decision in the case of Dungarlal Harichand (Supra) relied on by learned counsel for the appellant about maintainability of the writ petition under Article 226 of the Constitution of India, even after Town Planning Scheme is finalized, to which we have no disagreement, and the other decisions to which a reference is made in paragraph 5.5, 5.6 and 5.7 of this judgment have no applicability in the facts of Page 26 of 27 HC-NIC Page 26 of 27 Created On Wed Aug 16 08:25:57 IST 2017 C/LPA/2686/2010 CAV JUDGMENT this case.
12. Accordingly, in absence of merit, this Letters Patel Appeal is dismissed.
Sd/-
(ANANT S.DAVE, J.) Sd/-
(A.Y. KOGJE, J.) *malek Page 27 of 27 HC-NIC Page 27 of 27 Created On Wed Aug 16 08:25:57 IST 2017