Gujarat High Court
Bhupendrabhai Mathurbhai Patel vs State Of Gujarat on 18 February, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16287 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10943 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10960 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI sd/-
===========================================================
1 Whether Reporters of Local Papers may be allowed to YES see the judgment ?
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 or NO
any order made thereunder ?
=========================================================== BHUPENDRABHAI MATHURBHAI PATEL Versus STATE OF GUJARAT =========================================================== Appearance: (SCA/19287/2020) MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1 MR KURVEN DESAI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 MR JAYRAJ CHAUHAN(2966) for the Respondent(s) No. 5,6,7 MR NILESH A PANDYA(549) for the Respondent(s) No. 3,4 NOTICE SERVED for the Respondent(s) No. 2 Appearance: (SCA/10943/2020 & SCA/10960/2020) MR JAYRAJ CHAUHAN for MR ASHOK RATHOD for the Petitioner(s) No.1, 2 MR KURVEN DESAI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 MR NILESH A PANDYA(549) for the Respondent(s) No. 2 MR PARTHIV SHAH for the Respondent(s) No. 4 NOTICE SERVED for the Respondent(s) No. 3 ========================================================== Page 1 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 18/02/2022 COMMON CAV ORDER
1. This group of petitions being clubbed together by virtue of an order date 09.02.2021 have been taken up conjointly as per the request of learned advocates since common question of facts and law have arisen.
2. This group of petitions have been filed under Article 226 of the Constitution of India challenging the inaction of the authority in not handing over the possession of the land in question. So far as petition being Special Civil Application No. 16287 of 2020 is concerned, relief is sought to the effect that the respondent authorities be directed to hand over the possession of 316 sq.mtrs., as per Final Plot No. 42 forming part of the Town Planning Scheme No. 1 of Sayajipura to the petitioner in the interest of justice. The said relief is sought on the premise that the petitioner of this petition namely Bhupendrabhai Mathurbhai Patel is the owner of the revenue Survey Nos. 552/1, 553, 554 and 555 of Village Sayajipura, Taluka and District :
Vadodara. On the said lands Town Planning Scheme came to be introduced and after implementation of the Town Planning Scheme all the survey numbers were initially given Original Plot No. 65 and subsequently were given Final Plot No. 42 admeasuring 11,589 sq.mtrs. The said claim came to be finalized by the State Government in the year 2010 and subsequently, notice under Section 68 of the Gujarat Town Planning and Urban Development Act (for short "the Act") came to be issued to the petitioner on 27.02.2013.
2.1. It is the case of the petitioner that on 20.01.2014, respondent Page 2 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 no. 3 - Corporation issued notice under Section 87 of the Act to pay incremental contribution charge. As a result of this, the petitioner made a specific representation on 15.05.2014 to respondents for handing over the possession of land admeasuring 316 sq.mtrs., which was to be received by the petitioner from Survey No, 249/3, however, the respondent - Corporation has not handed over the said land till date. It is further the case of the petitioner that on service of the said representation, the respondent - Corporation vide letter dated 10.07.2014, requested the petitioner to provide certain information. It is further the case of the petitioner that on inquiry from the officers, it was informed that as the petitioner has not handed over the possession to the other owners, no action can be taken by the authority in respect of representations by the petitioner.
Accordingly, the petitioner immediately handed over the possession of the land to the concerned persons and vacated the land. The petitioner also made a representation on 12.11.2014 pointing out that the petitioner has already vacated the land in question. However, even after that, the authority has not taken any action. It is submitted that since for a pretty long period repeated request has not been adhered to, yet another representation was made by the petitioner on 12.05.2016, but the authority vide letter dated 14.07.2016 again informed the petitioner to hand over the possession of the land to other owners. The respondents also requested to obtain the possession from the other owners and also produced the consent letter. It is the case of the petitioner that though said act has to be performed by the respondent authority, the petitioner was directed to do the same.
2.2. It is the case of the petitioner that even the petitioner has paid incremental contribution charge on 21.11.2016 to the extent of Rs.5,75,650/- and the same has been acknowledged upon issuance of Page 3 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 receipt. It is the case of the petitioner that all formalities which were required to be performed by the petitioner were completed, and the petitioner also handed over possession of Final Plot No. 109 to the Corporation, but the Corporation did not take any steps to hand over in turn the possession of land admeasuring 316 sq.mtrs., which was to be handed over as the same was forming part of the Final Plot No.
42. As a result of this, again a representation was made on 29.05.2019 by annexing all necessary documents. Surprisingly, according to the petitioner, even after compliance of the obligation after representation of the petitioner dated 29.05.2019, the respondents further informed the petitioner vide communication dated 04.06.2019 to hand over the possession to the other owners as also to provide latest evidence qua ownership of the petitioner. Thus, it appears that the respondent authorities were quite aware about the fact that land admeasuring 316 sq.mtrs., forming part of Final Plot No. 42 is encroached by the original owners of Final Plot Nos. 43 and 44, however, in respect of the same, the respondent authorities are not taking any steps to hand over the peaceful and vacant possession to the petitioner. As a result of of this once the Town Planning Scheme becomes final, it becomes part of the Town Planning Act and it is the obligation of the authority to hand over peaceful and vacant possession of Final Plot to the owners as per the provisions of the Act. Right from 2014 till 2019, though representations having been made, the authorities have not made a single effort to hand over the possession of 316 sq.mtrs., of the land to the petitioner which is encroached by the owners of Final Plot Nos. 43 and 44. Thus, left with no other alternate, the petitioner is constrained to approach this Court by way of present petition for seeking the following reliefs :-
"7(A) Your Lordships be pleased to issue appropriate writ, Page 4 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 order or direction, directing the respondent authorities to hand over the possession of 316 sq.mtrs as per F.P. No. 42 forming part of T.P. Scheme No. 1 of Sayajipura to the petitioner, in the interest of justice;
(B) Your Lordships be pleased to direct the respondent authorities to produce before this Hon'ble Court the action taken report in pursuance to various representations made by petitioner from 2014 till 2019, in the interest of justice;
(C ) Your Lordships be pleased to grant such other and further reliefs as deemed fit in the interest of justice."
2.3. In addition to this, one Civil Application is filed by three applicants to be joined as proposed respondent nos. 5, 6 and 7 who are in actual occupation of Final Plot No. 42 forming part of the Town Planning at Sayajipura and as such, they being affected person have submitted an application since their interest is also at stake and according to them, the authority has not extended any opportunity and thereby acted detrimental to the interest.
2.4. After hearing the said application, vide order dated 13.09.2018, the applicants have been ordered to be joined in the main petition as respondent nos. 5, 6 and 7. So the basic grievance of this petitioner is that despite repeated request and despite having completed all the formalities, the petitioner has not been handed over the land admeasuring 316 sq.mtrs., of Final Plot No. 42 forming part of Town Planning at Sayajipura.
3. So far as another cognate petition attached to this group is concerned, which is Special Civil Application No. 10960 of 2020 is to the effect that the petitioner of this petition is the owner of original Plot no. 6/ Parvatinagar Society in sim of Village Sayajipura, Town Planning Scheme, Final Plot no. 42 earmarked for economically and socially backward class people from its original owners in the year Page 5 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 1998 and the petitioner of this petition is using this land as a godown, since he is carrying on wholesale business of selling cement and other construction material. According to the petitioner, this land is being used by the petitioner namely Plot No. 6 since about 20 years, regularly paying property tax as levied by the respondents since 2003, has become part of the Town Planning Scheme No. 1 which has come to the effect from 10.12.2010. After a pretty long period, respondent no. 2 issued notice on 12.06.2020 and gave only very short time of seven days, informing the petitioner to demolish the so called illegal construction and it is only the petitioner who received the notice and no other person in the very next neighbourhood is given such kind of notice of demolition or removal of encroachment and as such, aggrieved by the said notice, the petitioner preferred Special Civil Application for the reliefs which are quoted in para 8 which is reproduced hereunder :
"8(a) Your Lordship be pleased to allow and admit the present application.
(b) Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing the notice at Annexure 'A' herein issued by the Respondent no. 3 and restrain demolition of the residential house of the petitioner and also further direct the respondents to regularize the construction of the petitioner by charging necessary/ appropriate fee in the interest of natural justice and good conscience.
(c ) Your Lordship by way of interim relief be pleased to grant stay and restrain the demolition proceedings on the construction, which is mentioned in the Notice dated 12.06.2020 till the pendency of the petition and pass any just and proper order in the interest of natural justice and good conscience.
(d) Any other and/or further order that may be deemed necessary in the interest of justice may kindly be passed."
Page 6 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 3.1. In addition to this, an application has been submitted by Bhupendrabhai Mathurbhai Patel - petitioner of cognate petition i.e. Special Civil Application No. 16287 of 2020 to be impleaded in the present petition as party respondent and the said application Civil Application (For Joining Party) No. 1 of 2021 appears to have been allowed by virtue of an order dated 01.03.2021 by the co-ordinate Bench of this Court and the pleadings having been completed in the present application, this Special Civil Application has also been clubbed with the main petition as stated above.
4. So far as petition being Special Civil Application No. 10943 of 2020 is concerned, the same is filed by two petitioners namely Kanaksinh B. Rathwa and Arunaben Karansinh Rathwa claiming to be owners of the original Plot No .16/B of Village Sayajipura Town Planning Scheme No. 1 Final Plot No. 42 and in the ownership right from the year 1998. The petitioners claiming to have put up the construction of single floor house, in the year 2002-03, and in front side two shops were constructed after incurring huge hard earned money. This Plot No. 16/B is in occupation for about 20 years, having drainage connection, light connection, and regularly paying property tax to the Corporation levied by respondent no. 2 from time to time. It is the say of the petitioners of this petition that in sim of Village Sayajipura, Town Planning Scheme has come into effect on 10.12.2010 and after a pretty long period respondent no. 3 has issued notice on 12.06.2020. Though notice has been given after a long passage of time, notice period is prescribed of seven days only for calling upon the petitioners to demolish the construction and this has given rise to the petitioners to approach this Court by way of present petition for claiming the following reliefs :-
"8(a) Your Lordship be pleased to allow and admit the present Page 7 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 application.
(b) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing the notice at Annexure 'A' herein issued by the Respondent no. 3 and restrain demolition of the residential house of the petitioner and also further direct the respondents to regularize the construction of the petitioner by charging necessary/appropriate fee in the interest of natural justice and good conscience.
(c ) Your Lordship by way of interim relief be pleased to grant stay and restrain the demolition proceedings on the construction, which is mentioned in the notice dated 12.06.2020 till the pendency o the petition and pass any just and proper order in the interest of natural justice and good conscience.
(d) Any other and/or further order that may be deemed necessary in the interest of justice may kindly be passed."
4.1. In this Special Civil Application after issuance of notice it appears that one Bhupendrabhai Mathurbhai Patel, petitioner of Special Civil Application No. 16287 of 2020 has come up with an application for being impleaded as party in this petition as respondent and it appears that after hearing both the sides, vide order dated 01.03.2021 the said application came to be allowed by the co-ordinate Bench of this Court and with the aforesaid background this petition is also clubbed along with the present group.
5. These three petitions appears to have been interlinked in respect of basic grievance and by virtue of an order dated 09.02.2021 have been ordered to be heard together. Hence, since the pleadings have been completed, a request was made by the learned advocates appearing for the respective sides to take up the hearing conjointly. As a result of which, extensive hearing has taken place in Page 8 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 which the learned advocates appearing for the respective parties have requested to treat Special Civil Application No. 16287 of 2020 as a lead matter for the sake of convenience.
6. The learned advocates have firstly represented Special Civil Application No. 16287 of 2020 as a lead matter. Mr. Parthiv Shah, learned advocate appearing for the petitioner in the lead matter has contended that petitioner of Special Civil Application No. 16287 of 2020 is the owner of Survey No. 522/1, 553, 554 and 555 having Original Plot. No. 65 Final Plot No. 42 of Village Sayajipura as Town Planning Scheme no.1 came to be floated pursuant to the Resolution no. 874 dated 29.11.1991which was also published in the local daily newspaper 'Sandesh' on 16.12.1991 and subsequently, on number of occasions, as per the provisions of the Town Planning Act such development of town planning scheme was published in the newspaper. Pursuant to the said scheme, even a Town Planner came to be appointed on 08.10.1993 and subsequently, the scheme is processed in view of the provisions of the Act and later on 30.05.2011, the scheme has been finalized and such finalization of the scheme was also published in the local daily newspapers namely 'Gujarat Samachar' and 'Divya Bhaskar' on 31.05.2011 which is indicated on page 35.
6.1. According to learned advocate Mr. Shah, after the scheme came to be finalized, on several occasions, the petitioner made representations before the respondent - Corporation to implement the scheme as per sanction which has been accorded and for that purpose on 15.05.2014, 12.11.2014 and 29.05.2019, representations in writing were made, but no action was initiated. As a result of this, the petitioner was constrained to approach this Court for implementation of the said scheme.
Page 9 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 6.2. Learned advocate Mr. Shah has contended that it is settled position of law that whenever the Town Planning Scheme is attaining finality, it becomes duty of the implementing authority to carry out the steps and to give effect to the said final scheme and for that purpose, learned advocate Mr. Shah has drawn attention of this Court to the decision of the Apex Court in the case of Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd., reported in 1971 (3) SCC 381 as well as the decision of this Court in the case of Rajeshbhai Vitthalbhai Sardhara v. State of Gujarat reported in 2016 JX (Guj) 425 and by referring to these decisions, contention is raised that it is the Corporation being implementing authority is duty bound under the Act to narrate the steps pursuant to the finalization of the Town Planning Scheme. It has also been contended by learned advocate Mr. Shah that once Town Planning Scheme is sanctioned by the appropriate government, the same becomes part of the Act and as such, the same is not assailable in the manner in which, as obstruction is tried to be raised by the petitioners of other petitions of this group. For that purpose, learned advocate Mr. Shah has relied upon and referred to a decision delivered by this Court in the case of Dungarlal Harichand v. State of Gujarat reported in AIR 1977 Gujarat 23. Learned advocate Mr. Shah has further submitted that what would be the effect of preliminary scheme which has come into force and for that purpose, learned advocate Mr. Shah has contended that by virtue of Section 67 of the Town Planning Act, the day on which preliminary scheme comes into force all portion of land vests absolutely in the appropriate authority free from all incumbencies and for this purpose, learned advocate Mr. Shah has referred to decision of this Court in the case of Murtujakhan Joravarkhan Babu (Nawab of Page 10 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 Radhanpur Through His Power of Attorney Holder Mohmad Umarbhai Desai) v. Municipal Corporation of Ahmedabad reported in 1975 GLR 806 = (1975 AIR 182 Guj). By referring to the aforesaid decision, contention is raised by learned advocate Mr. Shah that the respondent - Corporation has submitted reply affidavit from page 24 to 27. It is admitted by the respondent - Corporation that Final Plot No. 42 belongs to the petitioner as per the Town Planning Scheme whereas petitioners i.e. contesting respondents herein, who are petitioners of Special Civil Application Nos. 10943 of 2020 and 10960 of 2020 are sheer encroachers and as such, when the Town Planning Scheme has attained finality for all practical purposes on 08.01.2013, long back, the effect must have been given in full vigour by the implementing authority namely the Corporation. It is only on account of stay which has been continued in Special Civil Application Nos. 10943 of 2020 and 10960 of 2020, the possession appears to have not been able to be handed over to the petitioner by the respondent - Corporation.
6.3. In furtherance of this, learned advocate Mr. Shah has further contended that so far as respondent nos. 5 to 7 are concerned, during the entire process of Town Planning Scheme, right from 1991 till 2013, no objections ever have been raised by either and it is not the case of these respondents that the objections have been raised and not considered by the authority and further there is no challenge made to the Town Planning Scheme nor any request for variance is sought and as such, under the circumstances the stand taken by the private respondents does not deserve to be entertained. In fact, from the pleadings of Special Civil Application No. 10943 of 2020, the construction of the property in question was made only in the year 2003 which could not have been permitted in any case and it is merely a request made by the village panchayat to frame the scheme Page 11 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 in the manner whereby the huts may not be required to be dismantled. It has been contended that it was a condition and not recommendation, is thoroughly ill founded as per the say of learned advocate Mr. Shah. It has further been contended that the contention which is tried to be raised by the private respondents herein that they were not given any notice about the change of alignment, but in view of the law laid down by this Court in the case of Kanjibhai Dahyabhai Malsattar v. State of Gujarat reported in 2005 (2) GLH 515, individual/special notices are not required to be issued under Section 52 of the Act read with Rule 26(2) of the Rules. However, learned advocate Mr. Shah has further alternatively submitted that as per the information available to the petitioner, there is no change in the alignment of the Town Planning Scheme, so no notice was also required and whatever, notices have been required were served to the original owners i.e., Shantaben Chhaganbhai, Madhuben, Chhaganbhai and Vitthalbhai Chhaganbhai on 12.10.1994, 03.04.1995 under Rule 26(1) and under Rule 26(3) and under Section 52(1) on 07.11.2005, 23.07.2007 and that being the case, the private respondents in this petition, according to learned advocate Mr. Shah have no locus to stand.
6.4. Learned advocate Mr. Shah then has further submitted that the petitioners of those two petitions have merely challenge the notice issued by the respondent - Corporation on 16.12.2020 and also prayed for regularization of construction by charging necessary appropriate fee. Now to seek this relief, neither the petitioners have produced by proof establishing their title over the property and mere an agreement to sell with the possession letter would not confer or accord any interest or charge or right over the property in view of the settled position of law so much so that for construction no sanctioned plans are produced by those petitioners to establish that Page 12 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 the construction was permitted by the Corporation at any point of time. When that be so, there is hardly any merit in those petitions to seek such relief.
6.5. So far as challenge to the notice under Section 68 of the Town Planning Act made by them is concerned, it has been contended that the petitions are required to be dismissed in view of the decision delivered by this Court in the case of Kanjibhai Dahyabhai Malsattar (supra) since notice challenged by those petitioners cannot be said to be notice under Section 68 of the Act. Insofar as further contention is concerned, learned advocate Mr. Shah has stated that in view of Section 49 of the Town Planning Act, on or after the date on which a draft scheme is published under Section 41 of the Act, no person shall within the area included in the scheme can carry out any development unless such person has applied for and obtained necessary permission for doing so. So, here the chronology of events would clearly indicate that as per the pleadings the construction carried out by those petitioners had been done after the date and as such in view of the law laid down by this Court in the case of Ramanbhai Hargovinddas Limbachai v. State of Gujarat reported in 2016 (3) GLR 2695, no relief deserves to be granted and thereto equitable in nature.
6.6. So far as last contention is concerned, learned advocate Mr. Shah has submitted that the hardship of an individual cannot be a ground either to strike down the statutory provisions or the statutory effect to be given to the scheme which has attained finality and for this purpose, learned advocate Mr. Shah has relied upon and referred to a decision in the case of Ahmedabad Municipal Corporation & Anr., v. Ahmedabad Green Belt Kehdut Mandal & Ors., reported in (2014) 7 SCC 357.
Page 13 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 6.7. After referring and raising such kind of contentions, learned advocate Mr. Shah has requested to allow this lead matter i.e. Special Civil Application No. 16287 of 2020 and consequently dismiss Special Civil Application No. 10960 of 2020 and Special Civil Application No. 10943 of 2020. No other contentions have been raised.
7. To deal with this submissions of learned advocate Mr. Shah, Mr. Nilesh Pandya, learned counsel appearing for the respondent - Corporation namely the Vadodara Mahanagar Seva Sadan and Town Planning Department, respondent nos. 3 and 4 herein has contended that a detailed affidavit-in-reply clarifying the position with regard to the controversy involved in these three petitions has already been made. It has been contended that the Town Planning Scheme No. 1, Sayajipura was already finalized by the State Government as indicated above, and the respondent Corporation is merely an implementing authority and in that context, notices have been issued to the petitioner/s of Special Civil Application No. 10943 of 2020 and Special Civil Application No.10960 of 2020 and it is on account of the stay which has been granted, the respondent - Corporation is not in a position to give effect to the finalization of the Scheme. In addition to this, learned advocate Mr. Pandya has further submitted that since both the petitioners of aforesaid petitions are merely encroachers of the land in question and accordingly they were informed to clear encroachments on 12.06.2020 with respect to the Town Planning Scheme No. 1, Sayajipura, Final Plot No. 42, the petitioner - Karansingh Rathva has to remove encroachment failing which he may be removed by the Corporation after seven days of the notice and this notice has been challenged by the said petitioner. Insofar as other petitioner namely Bharatbhai Naranbhai Prajapati is Page 14 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 concerned, petitioner of Special Civil Application No. 10960 of 2020, wherein also, with respect to Town Planning Scheme No. 1 Sayajipura which has already been finalized on 08.01.2013, Final Plot is required to be handed over to Bharatbhai Naranbhai Patel who has also filed Special Civil Application No. 16287 of 2020. According to learned advocate Mr. Pandya, it was specifically informed by way of filing an affidavit that encroachment which is pointed out is require to be removed as the same is illegally made by the petitioners of those two petitions, however, so far as lead matter i.e. Special Civil Application No. 16287 of 2020 is concerned, part of the land is merged in road and at the relevant point of time, compensation is already paid to Bharatbhai Naranbhai Patel wherein in the present case Bharatbhai Naranbhai Patel has filed petition to put himself in possession of the land in question and as such, learned advocate Mr. Pandya on instructions has submitted that if interim relief which has been granted is vacated, the effect will be given by the Corporation by taking appropriate steps. At this stage, learned advocate Mr. Pandya has also pointed out clearly that to the petitioner of lead petition i.e. Bharatbhai Naranbhai Patel, the respondent - Corporation has also issued notice to vacate Original Plot No. 65 so it can be merged in reserved plot of the Corporation under 109 which is merged in SEWS in Plot No. 109 and as such, correspondingly Bharatbhai Naranbhai Patel is also required to hand over Original Plot No. 62 in favour of the Corporation so that full implementation can take place and as such, learned advocate Mr. Pandya has submitted that these petitions be disposed of with appropriate directions so that the Corporation can take effective steps in respect of Town Planning Scheme which has attained finality.
8. To meet with this stand per contra, the petitioner of Special Civil Application No. 10943 of 2020 and Special Civil Application No. Page 15 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 10960 of 2020, learned advocate Mr. Jayraj Chauhan for Mr. Ashok R. Rathod appearing on behalf of the petitioners of these petitions has contended that by virtue of implementation of the Town Planning Scheme, the land in question is not required to be utilized for public purpose, but it is merely to be exchanged between two individuals. Since, there is dispute between two private individuals, the dispute is required to be adjudicated by civil court and for that purpose, lead matter i.e. Special Civil Application No. 16287 of 2020 is not tenable. It has been contended that notice has not been served either during draft or preliminary scheme processed upon the petitioners or even at a stage where alteration of alignment boundaries are decided after 15th May, 1998 and for that purpose, map at page 56 wherein yellow marking is a plot and red marking is original alignment, has been pointed out. It has been contended by learned advocate Mr. Rathod that if alignment is shifted to left after 1998, notice under Section 112 of the Town Planning Act is mandatory requirement and the same has not been served at all neither by the Corporation nor the petitioner of lead matter has substantiated this fact about issuance and/or service of notice to these petitioners and further the notice which has been issued by the respondent - Corporation did not speak under which provisions of law or rule is invoked. Hence, without mentioning relevant provisions when the notice is issued, it cannot be said that it is in connection with the Town Planning Scheme.
8.1. Learned advocate Mr. Chauhan has further submitted that even in the impugned notice of these two petitions to be treated as notice under Section 68 and Section 69 of the Act then also, by virtue of decision delivered by this Court in the case of Keshavji Devji Patel Through P.O.A. Mohanlal Keshavji v. State of Gujarat reported in 2007 (1) GLR 297 unless and until the Corporation Page 16 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 which is an implementing agency considered the matter after examining the petitions of the petitioners, it is not sustainable in the eye of law and as such, unless objections by the petitioners are not tried to be considered, interim relief granted by this Court deserves to be continued.
8.2. Learned advocate Mr. Chauhan has further submitted that when the preliminary scheme was framed, hutments and houses of the petitioners were shown in the record and as such, alignment was maintained in map dated 19.05.1998 marked in yellow portion whereby the property is not going in part of the client of learned advocate Mr. Shah i.e. lead matter, but land pertaining to client of Mr. Shah was going in a deduction for which no objection was raised and as such, the action which is tried to be initiated now by the respondent - Corporation is in gross violation of the principles of natural justice. From the photographs on page 47, according to Mr. Chauhan, it is clear that compound wall is to be demolished and for that notices have been given. So far as residential house of petitioner is concerned, is merely admeasuring 28 sq.mtrs., only and it is only since possession receipt has not been obtained from the landlord or the owner, it cannot be presumed that the petitioners are encroachers. So unless and until, according to learned advocate Mr. Chauhan, the petitioner of lead matter represented by learned advocate Mr. Shah is handing over the possession, the petitioners cannot be removed from their property. The property of the petitioner of lead matter and respondents in that matter is merely being used as party plot. As against this, the residential house of the petitioner will be demolished if the implementation is taking place and, therefore, also the interim relief which has been granted deserves to be continued. According to learned advocate Mr. Chauhan, it is an admitted fact that the petitioner of lead matter Page 17 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 represented by learned advocate Mr. Shah has not raised any objection qua demarcation as shown in map dated 19.05.1998 and as such, the Town Planning Officer is admittedly not justified in altering of boundaries and alignment on its own and such suo motu powers are not available to him. Hence, the action deserves to be held a colourable exercise of power.
8.3. For dealing with the decisions cited by learned advocate Mr. Shah, learned advocate Mr. Chauhan has pointed out that none of the decisions are of any assistance to the petitioner of lead matter since facts are altogether different and basically by giving effect to the scheme under public purpose is sought to be achieved. It has been pointed out by learned advocate Mr. Chauhan that the land which is going in deduction of the petitioner as against the respondents, are touching each other and as such the area can be retained as it is shown as in original survey number or as per the map dated 19.05.1998 being upper part of the land going to the petitioner of lead matter can be retained by the petitioner as house is standing over it, as against the land which is then to be handed over by the petitioner of lead matter belonging to him can be retained by him without violating the provisions of law. Since lower part of the land adjacent to land of the petitioner which is of the ownership of the petitioner of lead matter which has to be handed over to the Corporation and as such, if this exchange is by appropriate application of mind, if permitted, interest of all concerned will be retained. According to learned advocate Mr. Chauhan, Special Civil Application No. 16287 of 2020 contained no specific prayer that the Town Planning Scheme be implemented and even if sought for, same is not available and as such, has requested that these two petitions be allowed and lead matter being Special Civil Application No. 16287 of 2020 be rejected. For the purpose of substantiating his Page 18 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 contention, learned advocate Mr. Chauhan has pointed out few decisions and after referring to this, a request is made to dismiss the lead matter and allow both the petitions. No other submissions have been made. The following are the decisions which are as under :-
"(1) In the case of Keshavji Devji Patel Through P.O.A. Mohanlal Keshavji v. State of Gujarat reported in 2007 (1) GLR 297.
(2) In the case of M/s. Babubhai & Co., & Ors., v. State of Gujarat & Ors., reported in AIR 1985 SC 613.
(3) In the case of Municipal Corporation v. M/s. Chelaram & Sons and Anr., reported in AIR 1997 SC 31.
9. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, following circumstances deserves consideration before coming to the ultimate conclusion.
10. Here, undisputedly, Town Planning Scheme No. 1 was floated way back in November, 1991 and later on after due process, in accordance with law, the same was finalized and as per the submissions of learned advocates, the said final scheme was also published in local daily news papers way back on 31.05.2011. So the scheme relates to the present controversy has already attained its finality and became part of the Act on the basis of the aforesaid undisputed position. The corresponding effect deserves to be given by the implementing authority namely the Vadodara Municipal Corporation through its Town Planning Department.
10.1. It further reflects from the record that the relevant Town Planning Scheme is not challenged by either of the petitioners of Page 19 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 these petitions nor any request is made relating to Section 70 or Section 71 of the Town Planning Act. Hence, in absence of any such challenge, it is the statutory obligation of the implementing authority to give full effect to the scheme which has become final.
10.2. From the assertion of the lead matter i.e. Special Civil Application No. 16287 of 2020, the petitioner of this petition is also required to act as per the indication given by the implementing authority. This petitioner in lieu of the scheme was required to be handed over a portion of land as directed by the authority i.e. the Corporation and it is only on account of the Corporation having not initiated any steps to hand over the possession of 316 sq.mtrs., of land as per Town Planning Scheme of Sayajipura has given rise to filing of the petition since the said handing over could not be effected on account of stay being granted in two other petitions. Along with this the Corporation has also submitted its affidavit to that effect.
10.3. From a further perusal of the record of other two petitions, wherein reliefs which have been prayed is to restrain demolition of construction of residential house belonging to the petitioners of those petitions and to direct regularization of such construction upon payment of appropriate fees. On perusal of the relief clause as well as the pleadings, it appears that neither the scheme is under challenge nor any relief with regard to the variance of the Town Planning Scheme under Section 70 and 71 of the Act is sought. The only challenge is that the operation and implementation of the notice issued by the implementing authority be stayed. Since under the process of implementing the Town Planning Scheme No. 1, the said petitioner is required to clear and vacate the portion of land. It is not the case of these petitioners i.e. the petitioners of other two cognate petitions that there is any violation of the substantive provisions of Page 20 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 law nor any agitation with regard to any kind of finalization of the Town Planning Scheme and these petitioners are also accepting the fact that Town Planning Scheme has attained its finality.
10.4. From the assertion of the implementing agency, from the affidavit it is culled out that these petitioners of cognate two petitions are encroachers of the land in question and as such, were served upon with the notice impugned to remove the encroachment and the said notice is in connection with Town Planning Scheme No. 1 Sayajipura Final Plot No. 42 only. The Corporation has also reiterated the stand that the scheme has attained its finality long back and it is on account of stay being continued in two petitions, the effect is not possible to be given and as such, the stand of the Corporation is that the stay granted in those two petitions in the present group be vacated. Simultaneously, it has also been asserted that no proper documents are given to indicate about lawful occupancy over the land in question. However, the stand is that once the scheme has attained its finality in the absence of challenge to the same, no relief be sought for from the Court by those petitioners. It is also evident from the stand of the Corporation that on account of this scheme, part of the land is merged into road of petitioner of lead matter and compensation at the relevant point of time was already paid to Bharatbhai Naranbhai Patel i.e. the petitioner of the lead petition. It is also asserted by the implementing authority that at the time when the process was on, there was no objection raised before the finalization of the scheme and as such, the stay operative in cognate two petitions be vacated so that the Corporation can take necessary action. It is also asserted that Bharatbhai Naranbhai Patel i.e. the petitioner of lead petition has already been issued notice to vacate Original Plot No. 65 so that it can merge in reserved plot of Corporation No. 109 which is merged in SEWS in Plot No. 109 and as Page 21 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 such, simultaneously, the petitioner Bharatbhai Naranbhai Patel is also required to hand over Original Plot No. 65 in favour of the Corporation and hence, the sum and substance of the stand of the Corporation is once the scheme has attained its finality, this grievance which has been raised by the petitioner is no longer permissible to allow implementing authority, namely the Corporation to give effect to the scheme. So in substance though the scheme has attained finality, on account of pendency of the present proceedings, the Corporation is not in a position to give effect to the said scheme, so far it relates to lands which are involved in the present three petitions. The only objection in written submission made is that there is some alienation to boundary has taken place at the behest of the Town Planning Officer on his information and for that no opportunity was given, but there is nothing on record to indicate that such grievance was voiced out at the relevant point of time and further no cogent material was produced to substantiate.
10.5. As against this, it is reflecting from the record that at every stage before finalization of the Town Planning Scheme there appears to be proper publication, and there appears to be proper procedure and the same has also not been questioned by any of the petitions.
11. It is a trite law that on the preliminary scheme having come into force, attained finality under the provisions of the Act, the same is having effect as if it were enacted under the Act and bye-laws required by appropriate authority that land would vest absolutely in appropriate authority free from all encumbrances, and variation of the scheme would be done only by the State Government as per the provisions contained in Section 70 of the Act and as such, the settled legal position is that the validity of the same can be gone into only to a limited extent i.e. where there is transgression of jurisdiction of the Page 22 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 authorities concerned; or where scheme finally emerged is totally inconsistent with the Act and where minimum statutory essentials are not complied with. So in that eventuality only the scope of interference may be possible. But, here the case on hand is as such where the scheme has already been finalized, long back and there is no projection either of the petitioners that there is any violation of any procedural safeguards, there is hardly any scope for interference in considered opinion of this Court. The relevant extract from the decision in the case of Varahi Co-operative Housing Society Limited v. State of Gujarat reported in 2019 (2) GLR 1088 deserves to be quoted hereunder :-
"8. Thus, in view of the said provisions contained in the Act, on the preliminary scheme and final scheme having come into effect as if it were enacted under the Act and all lands required by the appropriate authority would vest absolutely in the appropriate authority free from all encumbrances. The variation of the scheme could be cone only by the State Government as per the provisions contained in Section 70 of the said Act, As per the settled legal position, the validity of legislative measure can be gone into only to the limited extent i.e. where there is transgression of jurisdiction of the authorities concerned; where the scheme finally emerged is totally inconsistent with the Act and where minimum statutory essentials are not complied with. Beneficial reference of the decision in the case of Shipla Park Co-operative Society Ltd., v. Surat Urban Development Authority, reported in 1996 (2) GLH 287 : [1996 (2) GLR 707] be made in this regard."
12. The Court has also an assistance of yet another well settled proposition of law laid down by this Court in the case of Vimlaben Ramsagar Mishra v. Ahmedabad Municipal Corporation reported in 2009 SCC Online (Guj) 6413, wherein after analysing the provisions of the Act, the Court has propounded that once the Town Planning Scheme has become final and the same is not under challenge, it is not open for the Court to opine with respect to road Page 23 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 widening and in absence of any challenge to the same, no injunction be granted restraining the authority from implementing the scheme. The relevant extract contained in par 8 and 9 are reproduced hereunder :-
"8. Considering the decision of the Division Bench of this Court in the case of Chandravadan Chunilal Shah v/s. State of Gujarat reported in 2002 (3) GLR 1849 as well as decision of the learned Single of this Court in the case of Kanjibhai Dahyabhai Malsattar v/s. State of Gujarat reported in 2005 (2) GLR 1649 as well as considering provisions of the Act, more particularly section 67 of the Act, after the town planning scheme has become final all lands which are needed by the Area Development Authority for the purpose of implementation of the town planning scheme vest in the Authority free from all encumbrances. Thus, on and after notification of final town planning scheme, the appellants have not right to occupy the properties in question which is needed for 18 meter wide road under finalized town planning scheme.
9. Now so far as the contention on behalf of the learned Advocate appearing on behalf of the appellants that their properties will be destroyed and/or damaged and/or means of livelihood would be taken away and 18 meter road wide road on the side of the properties of the appellants is not required, therefore, scheme is required to be varied and same may save their properties is concerned, it is required to be noted that it is only where scheme is defective on account of error or irregularity, town planning scheme can be varied. Even otherwise, it is for the Area Development Authority to move State Government for variation. Once town planning scheme has become final and same is not challenged, it is not open for this Court to opine with respect to 18 meter wide road under town planning scheme. As held by the Hon'ble Supreme Court and this Court in cantena of decisions inclusive of the Hon'ble Supreme Court in the case of N.Nnanalal Kiklawala v/s. State of Gujarat reported in (2005) 12 SCC 649, once town planning scheme has become final, Area Development Authority and/or appropriate authority has to implement the same and Area Development Authority and/or appropriate authority cannot be restrained from performing their statutory duties of implementation of town planning scheme which has become final under the Act. In the present case notices have been issued by the the Area Development Authority i.e. Ahmedabad Page 24 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 Municipal Corporation under Section 68 of the Act and Rule 33 of the Rules for implementation of town planning scheme, therefore, respondent - Corporation is performing statutory duties under the Act for implementation of the town planing scheme which has become final. Therefore, no injunction can be granted restraining Corporation from implementing notice which is for implementation of town planning which has become final. To grant such relief would tantamount to restraining Corporation from performing statutory duties cast upon them for implementation of town planning scheme. Under the circumstances and in view of above, it cannot be said that the learned Chamber Judge has committed any error in refusing to grant interim relief restraining Corporation from implementing notice under Section 68 of the Act and Rule 33 of the Rules."
13. So from the aforesaid statement of law which has been made available, this Court is of the opinion that there is hardly any case made out for entertaining the request made by the petitioner. Further, the Division Bench of this Court in a decision in the case of Kashiben & Anr., v. State of Gujarat reported in AIR 1990 Gujarat 24 has also expressed a clear opinion that once the scheme has attained finality and became the part of the Act, the same cannot be questioned at a belated stage. Few observations contained in para 5 and 6 based upon Full Bench decision, the Court has taken assistance from that, but with a view to avoid unnecessary burden of this order, the extract is not quoted hereunder, but the proposition is taken note of. Further, yet another decision in the case of Rajeshbhai Vitthalbhai Sardhara v. State of Gujarat reported in 2016 JX (Guj) 425 in which also after considering the decision delivered by the Apex Court, the co-ordinate Bench has expressed an opinion that once the preliminary scheme is sanctioned the land vests in appropriate authority as per plan and the person who was the owner of the property prior to sanction of the scheme cannot take any action since he has no title, right or interest left over the property. Apart from that, the said Section 68 of the Act empowers Page 25 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 the authority to summarily evict any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme and after considering the decision delivered by the Apex Court, the co-ordinate Bench has directed the concerned Corporation to implement the scheme as expeditiously as possible. This law is not further to be expressed in view of the several decisions, but the sum and substance is that once the scheme has attained finality, there is hardly any scope for interference and thereto, in exercise of jurisdiction under Article 226 of the Constitution. On the contrary, in one of the decision delivered by this Court in the case of Patel Prakash Society Thro. Secretary v. State of Gujarat reported in (2004) GLH 218 wherein, the concerned petitioner had sought prayer to direct the respondents to vary the scheme by exercising powers under Sections 70 and 71 of the Gujarat Town Planning Act and in that the Court held that the concerned petitioner cannot pray for directing the authority to vary the scheme. Hence, the prayer cannot be granted and further it has been propounded that once the scheme has attained finality, in the absence of any manifest error, the same cannot be even challenged. Hence, the authorities will not be in a position to implement the Town Planning Scheme. Further the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation & Anr. v. Ahmedabad Green Belt Khedut Mandal & Ors. reported in (2014) 7 SCC 357 has also observed in paragraph 55 that adherence to rule of strict construction, hardship cannot be a ground to not give full effect to a statutory provision and as such, merely because a person suffers from hardship, cannot be ground for not giving effect and the grammatical meaning to every word of the provisions of the statute and, therefore, after analysing the provisions and the scheme of the Act in paragraph 55 the Hon'ble Court has observed, which since relevant to the present controversy, the Court would like to deduce hereunder :-
Page 26 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 "55. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30)"
14. From the aforesaid decision, the Court has further been brought to the notice of yet another decision delivered by this Court in the case of Rajeshbhai Vitthalbhai (supra), wherein it is propounded that it is the duty of the implementing authority namely the Corporation to give effect to the Town Planning Scheme which has attained finality. The said decision is also clinching the issue and as such, in the considered opinion of this Court, any interference in the present proceedings would further cause delay in implementing and giving effect to the scheme which has attained finality. Apart from that there is some grievance tried to be voiced out, but without any proper pleadings and proof, hence in view of law laid down in the case of Kanjibhai Dahyabhai Malsattar (supra) in which, the Court has clearly opined that individual and special notices are not required in view of Section 52 of the Act read with Rule 26(2) and when no case is made out cogent enough to indicate that there was any resistance at the relevant point of time, this Court in the absence of any such proof or pleadings is of the opinion that there is hardly any challenge deserves to be entertained in the present proceedings.
15. In the light of the aforesaid proposition of law, the reliefs prayed for in the petition in the lead matter i.e. Special Civil Application No. 16287 of 2020, the respondent authorities are Page 27 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022 C/SCA/16287/2020 CAV ORDER DATED: 18/02/2022 required to be directed to give effect to the Town Planning Scheme No. 1 of Sayajipura of handing over the possession upon the petitioner being complying with his obligation correspondingly. So far as other two petitions are concerned, in view of the background of facts which have been seen and examined, the relief prayed for in the said two petitions do not deserves to be granted. Accordingly, the following order is passed, which would meet the ends of justice.
(1) Special Civil Application No. 16287 of 2020 is partly allowed, whereby the respondents are directed to hand over the possession of 316 sq.mtrs., as per Final Plot No.42 forming part of Town Planning Scheme No. 1 of Sayajipura of the petitioner correspondingly obeying the instructions as indicated in the affidavit filed by the implementing authority precisely later part of paragraph 3 reflecting on page 26.
(2) So far as Special Civil Application No. 10943 of 2020 and Special Civil Application No. 10960 of 2020 are concerned, in view of the discussion and the proposition of law, the petitions deserves to be dismissed. Interim relief if any, stands vacated.
While parting with the judgment, it is directed that since the scheme has attained its finality long back, the respondent - implementing authority namely the Corporation is directed to implement the scheme as expeditiously as possible, preferably within a period of three months from the date of the receipt of writ of this Court. At this stage, the Court is leaving it open for the implementing authority to work out modality as to how such implementation can take place in true letter and spirit and this Court is not expressing any opinion except to issue direction commanding the authority to give effect to the scheme which has attained its finality.
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15. With the aforesaid observations and directions, the petitions stand disposed of.
sd/-
(ASHUTOSH J. SHASTRI, J) phalguni Page 29 of 29 Downloaded on : Tue Feb 22 20:51:22 IST 2022