Gujarat High Court
Manoj Rasiklal Shah vs State Of Gujarat on 17 April, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025
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Reserved On : 01/10/2024
Pronounced On : 17/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21780 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 19030 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22104 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22693 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 24962 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 18142 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
================================================================
Approved for Reporting Yes No
Yes
================================================================ MANOJ RASIKLAL SHAH & ORS.
Versus STATE OF GUJARAT & ORS.
================================================================ Appearance in Special Civil Application no.21780 of 2022:
MR MIHIR H. JOSHI, Senior Counsel with MR AMAR D MITHANI(484) for the Petitioner(s) No. 1,2,2.1,2.2 MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3 MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the Respondent(s) No. 4 MR SHUSHIL R SHUKLA(5603) for the Respondent(s) No. 7 MRS VASAVDATTA BHATT(193) for the Respondent(s) No. 5 MR MITUL K. SHELAT with MS DISHA N NANAVATY(2957) for the Respondent(s) No. 6 ================================================================ Appearance in Special Civil Application no.19030 of 2022:
MR MIHIR H. JOSHI, Senior Counsel WITH MR AMAR D MITHANI(484) for the Petitioner(s) No. 1 MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3 MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the Respondent(s) No. 4 Page 1 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined ================================================================ Appearance in Special Civil Application no.22104 of 2022: MR RASHESH S. SANJANWALA, Senior Counsel with MR MRUGEN K PUROHIT(1224) for the Petitioner(s) No. 1,2,3,4,5 MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2 MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the Respondent(s) No. 4 NOTICE SERVED for the Respondent(s) No. 3 =============================================================== Appearance in Special Civil Application no.22693 of 2022: ADITYA R PARIKH(8769) for the Petitioner(s) No. 1 ADVOCATE NAME DELETED for the Respondent(s) No. 2 MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3 MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the Respondent(s) No. 4 =============================================================== Appearance in Special Civil Application no.24962 of 2022: MR RASHESH S. SANJANWALA, Senior Counsel with MR. AADIT R SANJANWALA(9918) for the Petitioner(s) No. 1,2,3,4,5,6,7 ADVOCATE NAME DELETED for the Respondent(s) No. 2 MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3 MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the Respondent(s) No. 4 ================================================================ Appearance in Special Civil Application no.18142 of 2021: MR MITUL K. SHELAT WITH MS DISHA N NANAVATY(2957) for the Petitioner(s) No. 1,2 MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH RAMI, Assistant Government Pleader for the Respondent(s) No. 2 MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the Respondent(s) No. 1 ================================================================ CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN COMMON CAV JUDGMENT
1. The petitioners in all the writ petitions are aggrieved by the actions and decisions of the Town Planning Officer, inter alia, on the ground that without considering or dealing with the objections of the petitioners, the decisions have been taken, causing serious Page 2 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined prejudice to the petitioners qua their immovable properties. Since the issue and grievances raised are almost common, revolving around the decision of the Town Planning Officer taken while preparing the Preliminary Town Planning Scheme no.67 (Hansol) (hereinafter referred to as "the preliminary TP scheme"), all the writ petitions, with the consent of the learned counsel appearing in the matters, are being disposed of by this common CAV judgment.
2. Re: Details of the writ petitions; factual aspects contained therein; challenge and the prayers in crisp, are set out hereinbelow:
(i) Writ petition being Special Civil Application no.21780 of 2022 - Manoj Rasiklal Shah Through the Power of Attorney Pourus Rustom Mehta & Others vs. State of Gujarat & Others Factual Aspects:
3. Petition pertains to the petitioners' land bearing Plot no.E/1 of survey no.298, Hansol, Taluka Asarva admeasuring 2540 sq. yards.
As per the Draft Town Planning Scheme (hereinafter referred to as "the draft TP scheme"), the land admeasuring 2540 sq. yards was given Final plot no.58/4 admeasuring 1435 sq. mtrs.
3.1 The petitioners were put in possession of the land wherein, the petitioners got license to store compressed gas and cylinders (LPG cylinders) in the name and style of "Malhar Gas Services" c/o. Manoj R. Shah. According to the petitioners, godown for storage of gas cylinders was constructed as per the plans sanctioned by the competent authority somewhere in the year 1984 when the land was not forming part of the Corporation area. Construction was Page 3 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined made as per the plans and is standing even today. According to the petitioners, on 13.06.1995, the land owner Shri Babubhai Trikambhai executed an Agreement to Sell of the land in favour of the petitioners, followed by a registered Sale Deed dated 18.11.1999. As the land is situated within the Cantonment area, apropos the objection raised by the Indian Army, the gas godown, was shifted at some other place. It is the further case of the petitioners that somewhere in the year 1987, all plot holders of survey no.298 have jointly executed the agreement on a stamp paper and it was agreed to keep approach roads of survey no.298 open and without any interruption. The draft TP scheme was sanctioned on 16.09.2004 wherein, survey no.298 was given original plot and Final Plot nos.58/1, 58/2, 58/3/1, 58/3/2, 58/4, 58/5, 58/6. The petitioners have been given Final Plot no.58/4 i.e. Plot no.E/1. The Town Planning Officer came to be appointed in the year 2005. Notices were issued, objections were raised;however; Town Planning Officer without considering the objections has taken the decisions. The petitioners being aggrieved, have filed the captioned writ petition.
Challenge and Prayers:
a) Direction is sought to the respondent authorities and more particularly, the Town Planning Officer to allot a separate final plot and consider the common road area of survey number as holding of all plot holders under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act of 1976" ), with respect to land bearing revenue survey no.298, Hansol (hereinafter referred to as "the land in question").
b) Prayer is also prayed for seeking mandamus restraining the Page 4 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined respondent no.1 - State of Gujarat (hereinafter referred to as "the State") from granting sanction to the preliminary TP scheme as prepared and submitted by the Town Planning Officer.
(ii) Writ petition being Special Civil Application no.19030 of 2022 - Pourus Rustom Mehta vs. State of Gujarat & Others Factual aspects:
4. The petition pertains to the petitioner's land bearing plot no.E/ 2 of survey no.298 (Hansol) admeasuring 990 sq. mtrs., Taluka Asarva. As per the draft TP scheme, plot no.E/2, was given original plot no.58/5 and final plot no.58/5.
4.1 The grievance of the petitioner, is that as per the draft TP Scheme, the land bearing survey no.298 of Hansol was given six original plot numbers being original plot nos.58/1 to 58/6 specifying the area of the final plot. The draft TP scheme was sanctioned.
Earlier existing road leading to the petitioner's residence i.e. plot no.E/2, was cancelled and instead a narrow 5 meter road cutting the margins of the petitioner's house and almost touching his constructed house was proposed. It is the case of the petitioner that the margins of the petitioner's house were being deducted only to provide access to final plot no.58/3 which otherwise already had an access from another proposed road. This led to the filing of the objection. The petitioner also approached this Court in the year 2008. This Court, vide order dated 16.12.2009 in Special Civil Application no.1231 of 2008 was pleased to permit the petitioner to file an objection before the Town Planning Officer and the Town Planning Officer was directed to consider the same while preparing Page 5 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined the preliminary TP scheme. According to the petitioner, he has made various representations. It is thereafter, that a notice was issued by the Town Planning Officer to all the plot holders of land bearing survey no.298 of Hansol. The petitioner and others remained present before the Town Planning Officer and made various submissions. The grievance of the petitioner was that there is no road leading to the petitioner's plot which response is shown in the tentative reconstitutional proposal. Also, it was pointed out that proposed 12 meter T.P. road has been superimposed on the certain part of the common road of the survey no.298 and if the road is extended by few meters on the common road, the petitioner can have an access to his plot.
4.2 Grievance is also raised that the shape of the plot is not correctly reflected so also the boundary is missing on one side and it is merged with the land of the adjoining plot holder of E/3. The Town Planning Officer appears to have insisted for Hissa Mapni sheet and the authenticated Hissa Form no.11A from the office of District Inspector of Land Records. Application appears to have been made seeking Hissa Mapni; followed by exchange of correspondence between the petitioner and the concerned office. During the process, the petitioner has received the notice through his neighbour, issued by the Town Planning Officer, calling for the objections and suggestions before declaration of the award. The apprehension of the petitioner, is that the proposed preliminary TP scheme prepared has been sent to the State Government and the petitioner is not provided with the copies of the part plan. Hence, the captioned writ petition.
Challenge and Prayers:
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a) Direction, inter alia, is sought for to the Town Planning Officer to reflect the existing approved standing constructions, actual shape and boundary of plot in its record and to provide for the sufficiently wide road leading to the petitioners residence. Also, allot the separate final plot and consider common road area of survey no.298 as holding of all the plot holders under the provisions of Act of 1976.
(iii) Writ petition being Special Civil Application no.22104 of 2022 - Rustomji Kaikhushru Mehta & Others vs. State of Gujarat & Others.
Factual Aspects:
5. The petition pertains to the land bearing survey no.294, 295/1, 296, 298 and 316 situated at village Hansol. The petitioners are having residential premises over the land bearing revenue survey no.296 and survey no.298. Whereas, factory premises of the petitioners is situated in revenue survey no.294 and 316. The other lands of petitioner are being vacant as of today.
5.1 As per the draft TP scheme, the land bearing revenue survey no.298 paiki has been given different original plot no.58/3 admeasuring 11559 sq. mtrs. and final plot no.58/3/1 and 58/3/2 admeasuring 8092 sq. mtrs. The land bearing survey no.316 admeasuring 7689 sq. mtrs., where the petitioners' factory is situated has been given original plot no.48 admeasuring about 7689 sq. mtrs. and final plot no.48 admeasuring about 5382 sq. mtrs. The case of the petitioners is that the petitioners have regularized built up factory over the land admeasuring 990 sq. mtrs. and were running the factory and business of "Aava Natural Mineral Water"
which is a certified water sources and certified bore wells under the Page 7 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined strictest bureau of Indian standards and FSSEI standards, after getting necessary permission from the Corporation to create bore wells in 2004 and permission of ground water withdrawal from the State Government. According to the petitioners the plans for the factory premises were passed in the year 1988 and the Corporation together with the status of non-agricultural land, has also regularized the entire construction on the petitioners' property.
5.2 In the year 2012, the Town Planning Officer deleted the 12 meter road of the sanctioned draft TP scheme which was passing through the factory premises of the petitioners ensuring that no assets, water sources or built up structure of the petitioners are damaged. The Town Planning Officer in the year 2021, has shifted the road from the petitioners' premises towards the east which was approved by the Corporation. Contention is raised that the Chief Town Planner and the Corporation, have also instructed the Town Planning Officer to save the buildings and other infrastructure. Recommendations were also received by the Chief Town Planner to consider the issue indicated in the letter dated 31.12.2021. The Corporation as well has granted the consultation to the proposal of the Town Planning Officer dated 25.05.2021. As per the consultation dated 13.07.2022, the Town Planning Officer was recommended to make proper verification in respect of the grievances raised by the petitioners for the land in question. The Corporation was also consulted and approved the map suggested by the Town Planning Officer. It is the further case of the petitioners that the Corporation on 06.08.2022 has sent the map together with the paramarsh to the Town Planning Officer to shift the road further east and consolidate the land holding of the petitioners in survey no.316 and nearby, considering the provisions of section 45B and 45C of the Act of 1976.Page 8 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 5.3 Despite the instruction and consultation, the grievance of the petitioners is that the Town Planning Officer in the preliminary award, has laid down the TP road splitting the petitioners factory premises in the survey no.316 and has earmarked the reservation for socially and economically weaker section in the east of the petitioners land. Moreover, a detailed survey was undertaken by the Town Planning Officer of the petitioners' properties through the District Inspector of Land Records (hereinafter referred to as "the DILR") who, in turn, has given its report which was received on 27.10.2022. The said survey was completely disregarded by the Town Planning Officer as it shows the road over the existing buildings, water sources and felling of hundreds of trees.
5.4 The land bearing revenue survey no.296 has been divided into 28 subplots. The petitioners, are the owners and occupiers of survey no.296/1 admeasuring 708 sq. mtrs. including other co-owners. Specifically, Shri Behram Mehta, Director of petitioner no.3 and Tinaben Mehta - petitioner no.2 are the owners of survey no.296/2, 296/4, 296/5, 296/6, 296/9, 296/22, 296/23, 296/25 and 296/26, all admeasuring about 708 sq. mtrs. It is the further case of the petitioners that the petitioners are the owners and occupiers of revenue survey no.296/B admeasuring about 4000 sq. mtrs. and 296/2/A admeasuring 101 sq. mtrs. The petitioners and other co- owners, have been allotted combined final plot no.59/1 to 59/5 which is admeasuring 22,447 sq. mtrs. Survey no.295/1, is admeasuring 2428 sq. mtrs. and in view thereof, proportionate final plot has been given.
5.5 The grievance of the petitioners is against the laying down of the 12 meter TP road and reservation from the middle of the petitioners' land bearing survey no.316 and 394/2, it being arbitrary Page 9 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined and unjust.
Challenge and Prayers:
a) Challenge, inter alia, is to quash and set aside the notice dated 13.10.2022 issued by the Assistant Estate Officer, Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation") to all the owners and occupiers of survey numbers mentioned therein including the petitioners. Direction is also sought for permanently restraining the respondent no.4 - the Corporation from taking possession of the revenue survey no.298 from the petitioners.
b) Challenge is also to quash and set aside the decision of the respondent authority in proposing 18 meters T.P. road as well as final plots of others in the original plots of the petitioners and 24 meters T.P. road shown in the survey no.298 of the preliminary TP scheme no.67 as the Town Planning Officer has no authority and jurisdiction, with a further prayer to reconsider the decision with regard to proposing 18 meter and 24 meter T.P. road in preliminary TP scheme no.67 in survey no.298.
(iv) Writ petition being Special Civil Application no.22693 of 2022 - Firdos Sorabji Cambatta vs. State of Gujarat & Others Factual Aspects:
6. The petition pertains to land bearing survey no.314/1 admeasuring 708 sq. mtrs., survey no.314/2 admeasuring 7891 sq. mtrs. and further survey no.314/3 admeasuring 6273 sq. mtrs. The Page 10 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined petitioner is also the owner of land bearing survey no.315 paiki admeasuring 2630 sq. mtrs. purchased in the year 2019.
6.1 Revenue survey no.314/1, has been given original plot and final plot 6/1 admeasuring 496 sq. mtrs. Survey no.314/3 has been given original and final plot 6/3 admeasuring 4391 sq. mtrs. The grievance of the petitioner is that 12 meter road has been expanded to 30 meters and as a result whereof, all the trees planted by the petitioner, would have to be removed. The petitioner, therefore, has prayed for quashing and setting aside of the decision of the Town Planning Officer providing reservation of 30 meter road on the eastern side and 18 meter road on the southern side of the land bearing survey no.314/3 and reservation provided in survey no.314/1 by the Town Planning Officer.
Challenge and Prayers:
a) Challenge is to the decision of the Town Planning Officer providing reservation of 30 meters road on the eastern side and 18 meters road on the southern side of the land bearing survey no.314/3 as well as the reservation provided in survey no.314/1 by the Town Planning Officer, it being erroneous and bad in eye of law.
b) Also, prayer is to quash and set aside the said decision providing such reservation in the preliminary TP scheme, it being illegal, arbitrary and unconstitutional.
(v) Writ petition being Special Civil Application no.24962 of 2022 - Chikuvadi Private Limited & Others vs. State of Gujarat & Others Page 11 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Factual Aspects:
7. The petition pertains to various survey nos., namely, revenue survey nos.339, 340/1, 340/2, 342, 346, 349/1, 349/2 and 352 paiki. The grievance of the petitioners is that at the time of preparation of the draft TP scheme, the petitioners have made a representation for allotment of all final plots in one cluster. The request of the petitioners was allotment of final plots where survey no.349/1, 349/2 and 352 are allotted and sought for deduction to be adjusted out of survey no.339, 340/1, 340/2, 342 and 343. The representations were accepted and consolidated final plots were given. As against total land holding of 75672 sq. mtrs. the petitioners were allotted six final plots admeasuring 55760 sq. mtrs. Final plot nos.13/1, 13/2, 31, 17/1, 17/2 admeasuring 52811 sq. mtrs. are adjoining to each other and in one cluster and final plot no.13/3 admeasuring 2949 sq. mtrs. was allotted on the west of the cluster in original plot no.13.
7.1 The stand taken by the petitioners is that the decision of the Town Planning Officer of allotting final plots in original plots is erroneous considering the fact that there is no provision in the Act of 1976 which requires the allotment of the final plot only within the original plot.
Challenge and Prayers:
a) Direction is sought for to the Town Planning Officer to withdraw revisions made in the preliminary TP scheme no.67 (Hansol) to the extent of the petitioners plots i.e. land bearing survey no.339; survey no.340/1; survey no.340/2; survey no.342/2;
survey no.346 of the petitioner no.1. Prayer is also for survey Page 12 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined no.349/1; survey no.349/2 of the petitioner no.2 and survey no.352 paiki of petitioner nos.3 to 7 each holding the undivided interest.
b) Challenge is also to quash and set aside the decision taken and published by the Town Planning Officer in exercise of the powers conferred by Rule 26 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules of 1979") to the extent of petitioners plots (hereinafter referred to as "the plots in question").
(vi) Writ petition being Special Civil Application no.18142 of 2021 - Riverfront Development Company & Another vs. Ahmedabad Municipal Corporation & Another Factual Aspects:
8. The petition pertains to survey no.299/2 paiki admeasuring 17402 sq. mtrs. which was allotted final plot no.57/2 admeasuring about 1218 sq. mtrs. According to the petitioners the commencement letter has been issued in the year 2011, the petitioner has paid the requisite fees, necessary plans have been sanctioned; however, in absence of the implementation of the TP scheme, there is no excess to the plot of the petitioners and the petitioners are unable to develop the same. The response on the part of the Corporation relying upon condition no.10 of the communication dated 11.04.2008 of the Town Planning Officer addressed to the Chief Town Planner stating that it will be the responsibility of the land owners to provide for approach road.
Challenge and Prayer:
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a) Direction is sought for to the respondent authorities to commence the construction work of public roads adjoining the final plot no.57/2 in accordance with the draft TP scheme no.67.
Re: Submissions of the petitioners:
(i) Special Civil Application no.21780 of 2022
9. Mr Mihir H. Joshi, learned Senior Advocate assisted by Mr Amar D. Mithani, learned advocate for the petitioners submitted that the draft TP scheme was sanctioned on 16.08.2004 whereby, all the plot holders of survey no.298 were given separate original and final plot, specifying the area, which is clear from Form 'F". All plots were defined and demarcated during the process of preparation of the draft TP scheme and hence, the demarcated original plots and final plots were before the Town Planning Officer. It is submitted that while preparing the preliminary scheme, the Town Planning Officer has to keep in mind, the factors provided in sub-section (3) of the Section 52 of the Act of 1976. Clause (xi) of sub-section (3) of section 52 provides that the Town Planning Officer has to draw the preliminary and final scheme in accordance with the draft scheme. The Town Planning Officer ought to have acted in tune with the draft TP scheme as sanctioned by the State Government; however, the separate final plots provided under the sanctioned draft TP scheme have been combined and the plot holders have been given one common final plot.
9.1 It is submitted that without offering any justification for deviation from the draft TP scheme, much less any error, the Town Planning Officer, for no reason, has cancelled and modified the separate final plots and combined them and one common plot has Page 14 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined been given amongst all the plot holders. As the Town Planning Officer has taken a decision to combine final plots, nothing further is left to be done inasmuch as, Section 53 of the Act of 1976, provides the decision of the Town Planning Officer to be final and binding. Furthermore, there is no provision of review or appeal. It is next submitted that Section 65 of the Act of 1976 is a provision where the State Government can only modify the scheme for a limited purpose of correcting error, irregularity or informality and is not the power of appeal and only error, irregularity can be taken care of and contemplates no hearing. Hence, in view of the breach of the fundamental provisions, the whole exercise has been vitiated.
9.2 It is submitted that notices were issued by the Town Planning Officer to the petitioners and others, inter alia, allotting tentative original plot no.58, inviting the objections and suggestions. The said form states that the rights of the respective land owners would be as per their rights in the original plot. Now, the Town Planning Officer, upon representation being made by the petitioners to provide the separate final plots, says that it cannot be resolved. It is further submitted that Rule 26 of the Rules of 1979 provides the scope of opportunity to a person whose rights are vitally affected by the operation of the intended scheme and the procedure contemplated is mandatory in nature. Sub-rules (3) and (4), mandate the Town Planning Officer to pass a decision with reasons and the decision is to be communicated to the owners and the State Government.
9.3 It is further submitted that apropos the representation of the petitioners dated 20.11.2021 and more particularly, point nos.3 to 7 and 11, the response of the Town Planning Officer is that the separate final plots have not been allotted in absence of the hissa Page 15 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined form no.11 and Hissa Mapni from the office of the DILR. One of the issues raised was, not to demolish the structure standing since 1985 as the petitioners were ready to offer an alternative land or make the payment of contribution. But the response was that the measurement would be after taking guidance from the Chief Town Planner or the authorised officer appointed by the Corporation.
9.4 It is submitted that the writ petition was filed and this Court was kind enough to issue notice, observing that the matter deserves consideration. Even direction was issued not to take coercive steps under Section 68 of the Act of 1976. When this Court, was seized of the matter and the Town Planning Officer was aware about the petitioners having applied for the Hissa Mapni as the application was forwarded to him; as well, without waiting for any decision, on 27.10.2022, the Town Planning Officer published the award under sub-rule (9) of Rule 26 of the Rules of 1979 and form 'J' was issued on 03.11.2022. Clearly, on that very day, the Town Planning Officer has received the record, details of the area, the measurement sheet etc. from the office of the DILR; however, speedily and pending the writ petition and without informing and taking the leave of the Court, the decision has been taken. It is further submitted that for the period from 2005 till the year 2021, no steps were taken. It is only when the petitioners approached this Court, the decision was taken in haste reflecting non-application of mind much less consideration or the reasons. Therefore, the decision as it stands is clearly invalid and amounts to overreaching the Court process. It is therefore urged that the matters require reconsideration by the Town Planning Officer.
9.5 It is further submitted that this Court was kind enough to pass the order dated 29.11.2022 directing the DILR to consider the Page 16 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined application of the petitioners made to the Collector and Deputy Collector and to undertake the Hissa Mapni. The office of the DILR, undertook the said exercise indicating four grounds. One of the grounds was the absence of the consent of the plot holders. It is submitted that the Town Planning Officer is requiring the Hissa Mapni whereas, DILR says that there is no consent and no Hissa Mapni can be done. The parties are referred to the authority under the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "the Code"). The petitioners, therefore, have been shunted from pillar to post. It is further submitted that the office of the DILR has filed the reply and together with the reply, the Rojkam has been placed on the record which, contains the signature of all the plot holders and when there are signatures, it is difficult to understand as to whose consent the DILR is asking for. Even, as per the measurement sheet, all the plots are demarcated which has been ignored by the DILR and is asking the plot holders to proceed under the Code. It is further submitted that there is a specific stand taken by the petitioners in affidavit-in-rejoinder, stating that there is no objection raised on the contrary, the plot holders have tried to cooperate and provided the documents, namely, registered sale deeds, N.A. permission etc. It is submitted that even in the communication dated 18.05.2023 of the Deputy Collector, there is a specific reference of the registered sale deed dated 18.11.1999. It is submitted that if at all there is any dispute, as per section 46 of the Act of 1976, the aspect of disputed ownership can be decided before drawing up of preliminary scheme by the Town Planning Officer as it confers the vast powers upon him read with Rule 23 of the Rules of 1979 which provides for the procedure therefor.
9.6 It is submitted that the notification was issued by the State Government in its Urban Development & Urban Housing Department Page 17 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined dated 20.02.2004 sanctioning the variation to be made in the development plan as set out in the schedule. It is thereafter, the notification dated 16.09.2004 was issued by the State Government, sanctioning the draft scheme and the 30 meter wide road passing through the survey numbers indicated therein, was directed to be deleted and alignment, was to be taken as per the variation approved as per the notification dated 20.02.2004. Also, the part plan was approved in tune therewith. It is further submitted that Section 40 of the Act of 1976 provides for making and contents of a town planning scheme. Clearly, the draft TP scheme did not have the road at all; however, it was owing to the original development plan issued vide notification dated 21.04.2006, variation was provided. In fact, the notification dated 18.05.2002, was already changed on 20.02.2004 and hence, what was not in the development plan, could not to have been covered in the town planning scheme. It is further submitted that vide notification dated 06.05.2006, the State Government, replaced the 36 meter road by 30 meters and therefore, 36 meter road became 30 meter road and passes through the land of the petitioners. It is submitted that so far as the provisions of section 68 of the Act of 1976 read with Rule 33 of the Rules of 1979 are concerned, have no application at all.
9.7 It is submitted that there was a complaint filed by the Ministry of Defense raising objection against the 36 meters wide road passing partially through the defense land of the Army and the bridge over the Sabarmati river. Even grievances were made to the State Government at the highest level. There was even a request made for quashing of the notifications dated 21.04.2006 and 07.05.2006, with a further request to adhere to the notification dated 20.02.2004 read with notification dated 16.09.2004; however, it appears to have not been considered.
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(ii) Special Civil Application no.19030 of 2022
10. Mr Mihir H. Joshi, learned Senior Advocate assisted by Mr Amar D. Mithani, learned advocate, at the outset, submitted that everything is identical to the writ petition being Special Civil Application no.21780 of 2022, except the fact that in the past, the petitioner had preferred a writ petition being Special Civil Application no.1231 of 2008 and this Court, vide order dated 16.12.2009, has disposed of, giving the liberty to the petitioner to raise the objection before the Town Planning Officer and the objections submitted if any, were directed to be dealt with and considered while preparing the preliminary TP scheme and thereafter, while sending it to the State Government for its sanction. It is submitted that accordingly, objections were submitted on 24.12.2009, followed by another representation dated 20.06.2016.
10.1 Mr Amar D. Mithani, learned advocate submitted that vide sale deed dated 16.07.1988, the land was purchased of survey no.298 admeasuring 1185 sq. yards. Necessary details, have been incorporated in the 7/12 form and hence, the aspect of the road ought to have been considered. It is further submitted that the village form no.7/12 reflects the marg pot kharabo area of 2023 sq. mtrs. in survey no.298. Similarly, the same is reflected in the DSO record. Mr Amar D. Mithani, learned advocate submitted that clearly, as per the 7/12 form of the year 1993-1994, an area of 2023 has been earmarked as "Marg Ane Kharabo" meant for road and wasteland. It is submitted that even at the stage of sanctioning of the draft TP scheme, road was considered, which is clear from the affidavit filed by the Town Planning Officer & Senior Town Planner. Now, in view of the common plot allotted with no demarcation, the same would create chaos amongst the plot holders. Even while Page 19 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined preparing the draft TP scheme, the Corporation has considered the road area; however, the common road area was required to be considered on a pro rata basis amongst the plot holders; however, it is vanished in the scheme. It is further submitted that the road passing through survey no.298 was deleted by the State Government on 20.02.2004 and thereafter, on 16.09.2004, the draft TP scheme was sanctioned wherein, it is specifically provided that 30 meter road in survey no.298, shall be deleted and alignment shall be taken as provided in the approved development plan dated 20.02.2004.
10.2 It is further submitted that even if a 24 meter road is sanctioned in the revised development plan in the year 2014, it would not preclude the petitioners to raise the objection for its alignment, for getting the separate final plot etc. It is further submitted that laying down of the proposed 24 meter road, would affect the green cover of the area and against the continuous objections raised by the Army Cantonment. It is further submitted that the Corporation, on 14.09.2016 has directed the Town Planning Officer to decide the alignment of 24 meter road after hearing the land owners and affected parties. Therefore, alignment of the road was kept open for the Town Planning Officer to decide. It is therefore urged that the matter requires reconsideration by remitting the matter before the Town Planning Officer.
(iii) Special Civil Application No. 22104 of 2022:
11. Mr Rashesh Sanjanwala, learned Senior Counsel assisted by Mr Mrugen Purohit, learned Advocate, appearing for the petitioners, while inviting the attention to the provisions of the Act of 1976, submitted that sections 40 to 48A are the provisions contained in Page 20 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Chapter V and deal with the draft TP scheme. Section 44 provides for the contents of the draft scheme; section 45 envisages reconstitution of the plots and section 46 comes into play when there is inter se dispute regarding the ownership. Section 46 gives power to the Town Planning Officer to decide as to who shall be the owner for the purpose of the Act of 1976. In case, the record is inaccurate or inconclusive, the provisions of section 46 calls for an inquiry by the Town Planning Officer. It is submitted that section 46 is available at both the stages namely at the stage of preparation of the draft scheme and at the stage of preparation of the Town Planning Scheme. Section 48-A envisages vesting of the land in an appropriate authority.
11.1 It is submitted that almost all the decisions have been taken by the Town Planning Officer on 27.10.2022. The Town Planning Officer has exercised the powers in a most arbitrary manner. It is further submitted that to an extent, the issue is similar to the issue raised in Special Civil Application No. 21780 of 2022 and Special Civil Application No. 19030 of 2022, inasmuch as, there was earlier demarcation provided in the draft TP scheme; however, in the preliminary TP scheme, the Town Planning Officer has not provided any demarcation and has consolidated final plots of all seven plot holders.
11.2 It is submitted that at the stage of preparation of the draft TP Scheme, authorities found the revenue record accurate and conclusive and hence, allotted seven demarcated different plots to the plot holders, none of the plot holders had disputed or raised any objections and it is at the stage of preparation of the preliminary scheme, that a change has been effected. It is submitted that if the decision is tainted with arbitrariness and procedure has not been Page 21 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined followed, then in the writ petition under Article 226, the decision can be interfered with and the Town Planning Officer can be directed to reconsider the decision. It is submitted that the stand of the State Government is that once the Town Planning Officer sends the preliminary scheme with its decision, the State Government then will consider the matter as it has ample powers to do so. It is submitted that under the Act of 1976 read with the Rules of 1979, the role of the Town Planning Officer is very crucial, considering the valuable rights, i.e. right of property with which the authorities are dealing with. In addition to being a constitutional right it is also a fundamental right. Thus, the authorities, when dealing with the properties of the public, are expected to follow the procedure scrupulously and the decision has to be supported with reasons, which would be amenable to judicial review. It is submitted that if the party comes at the stage of the draft TP scheme, stand taken would be that it is premature; if the party comes at the stage of preparation of the preliminary TP scheme, the stand taken would be that the matter is yet to be decided by the State Government; and if the party comes at the stage of matter being considered by the State Government the stand taken would be that it has become part of the Act. Therefore, the role of the Town Planning Officer is most crucial.
11.3 It is submitted that section 47 provides for objections to the draft TP scheme to be considered and the obligation. Furthermore, Rule 17 of the Rules of 1979 provides for calling of a meeting of the owners to explain in such meeting tentative proposals of the draft scheme for eliciting public opinion and suggestions of the said proposals. The appropriate authority then takes into consideration all the suggestions as made on the proposal. Therefore, the procedure to follow at the stage of Page 22 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined preparation of the draft scheme is very crucial. Rule 23 provides for an inquiry where ownership is disputed and the inquiry is to be held as per the said provisions. Once the draft scheme is approved, the Town Planning Officer enters the office and it has to give a notice in the prescribed form to the persons affected by the scheme and demarcate the areas allotted and it is only as per clause (2) of sub- section (1) of section 52, that after giving notice the Town Planning Officer may determine which final plot is to be allotted to person in ownership in common, the share of such person, etc. 11.4 Reliance is placed on the judgment of this Court in the case of Kishanbhai Hargivandas Patel vs. State of Gujarat reported in (2010) 4 GLR 2861. Considering the scheme scope and ambit of the provision of the Act of 1976, in paragraph 13 it has held and observed that the Town Planning Officer is required to record the brief minute setting out the points at issue and the necessary particulars and is required to give a decision with reasons and all such minutes shall be appended to the scheme. The Town Planning Officer shall record and enter in the scheme every decision taken by him and all the suggestions received by him, if any, along with the preliminary TP scheme prepared by him and send it to the State Government for its sanction. It has been further observed that opportunity is required to be given to such owners who are likely to be and adversely affected by such modification of the preliminary TP scheme suggested by the Town Planning Officer. It is therefore submitted that none of the issues raised were considered and everything has been done in hot haste.
11.5 Mr Sanjanwala, learned Senior Counsel further submitted that considering sub-rule (4) of Rule 26 of the Rules of 1979, it has been held and observed that the Town Planning Officer Page 23 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined is required to 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. It has been noted that the Town Planning Officer is required to record a brief minute setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefor, and all such minutes are required to be appended to the scheme. After considering the objections, the Town Planning Officer shall make and prepare the preliminary TP scheme as per section 52 and define and demarcate areas allotted to or reserved for any purpose or for a purpose of the appropriate authority and the final plots. It is therefore submitted that the decision making process contemplates the decision coupled with hearing and decision. It is further submitted that the opportunity at the stage of section 65 is no argument, as it does not contemplate hearing. The preliminary scheme goes to the State Government and if it decides not to modify and sanction the scheme as received, the petitioners shall have no right or opportunity. Therefore, section 65 is not substitute or answer to the contention that the provisions of Rule 26 of Rules of 1979, has not been followed.
11.6 Reliance is placed on the judgment in the case of Babubhai Savjibhai Bathani vs. State of Gujarat passed in Special Civil Application No. 14779 of 2018 and other allied matters. The grievance raised by the petitioners was about 30 meter wide road passing through the plot, as a result whereof, the constructed premise of the petitioners was substantially being demolished. The Division Bench of this Court considered Rule 26 of the Rules of 1979 and it held that every person interested in any land affected by the scheme shall be given sufficient opportunity of stating their views and the Town Planning Officer shall not give any decision, unless Page 24 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined such views are considered. This Court, therefore, relegated the petitioner to state its views with a further direction to the Town Planning Officer to decide the objections after giving the petitioners sufficient opportunity and to pass an order.
11.7 While referring to the paper-book, it is submitted that the consultation took place with the Corporation and it vide item no.6, suggested to reconstitute final plot no.131 without affecting the existing plot. At item no.14, the Corporation suggested a change of alignment of the 12 meter road. Similarly, the Chief Town Planner has provided the consultation providing a specific instruction to make proper verification in respect of grievances raised by the petitioner in respect of Revenue Survey no.316 and more particularly, item no.38. Similar suggestion was provided at item nos.43 and 44 to make the provisions of town planning road in such a manner that it does not affect the construction. Even at one stage, the Corporation approved the map prepared by the Town Planning Officer, so also the request of the petitioner for consolidation of plots. It is submitted that the Town Planning Officer, disregarding the consultation laid a 12 meter road splitting the petitioner's factory premises and has put a reservation for SEWS which is an arbitrary exercise of powers.
11.8 It is submitted that the Town Planning Officer took eighteen years to prepare the preliminary TP scheme and in the process, the decisions were taken and changed, coupled with consultation with the Chief Town Planner and the Corporation and on the basis whereof, the sanctioned draft TP scheme was proposed to be modified. The notice was issued by the Town Planning Officer inviting suggestions and objections and a meeting was scheduled on 01.09.2022, followed by a notice dated 14.10.2022 requiring the Page 25 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined petitioners to remain present on 21.10.2022. On 20.10.2022, the petition was filed which came up for hearing on 21.10.2022 and this Court was kind enough to issue notice and directed not to take coercive steps. The petitioner filed representation on 21.10.2022 and on 27.10.2022, the Town Planning Officer took a decision. The issues were raised about a 12 meters town planning road passing through the land of the petitioners and putting reservations in the original plot affecting the factory of natural mineral water sources and ground water sources. Suggestion was also put forward offering a huge portion of the open land despite which, the road has been proposed on a constructed area of the land of the petitioners'. It is submitted that the Town Planning Officer was transferred; however, has been brought back and asked to finish the scheme which the Town Planning Officer did in a hot haste, vitiating the decision.
(iv) Special Civil Application No. 22693 of 2022 11.9 Mr Rashesh Sanjanwala, learned Senior Counsel assisted by Mr Mrugen Purohit, learned Advocate submitted that the captioned writ petition is in connection with survey no. 314/3 admeasuring 6273 sq. mts., survey no. 314 admeasuring 708 sq. mts. and survey no. 314/2 admeasuring 7891 sq. mts. owned and occupied by the petitioner and his brother and survey no. 315 paiki admeasuring 2630 sq. mts. is purchased by the petitioner on 20.12.2019. It is submitted that Hissa form no. 4 was forming part of the record and it showed who are the owners of the land in question. It is submitted that final plots were allotted in lieu of their original holding and names of the joint owners were reflected in the redistribution and valuation statement. Despite there being demarcation and Hissa Mapni between the owners, the joint final plot was allotted. While inviting the attention to the convenience Page 26 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined compilation, it is submitted that the petitioner has been provided Final Plot nos.6/1, 6/2 and 6/3 and diagonally opposite Final Plot no.47 has been provided. It is submitted that all around, 30 meter road, 18 meter road and 12 meter road have been provided. The grievance of the petitioner is that though there is no need of 30 meter road, the same has been provided. It is submitted that even otherwise, there is an option of 24 meter road available. Also, because of the 30 meter road, felling of the large number of trees is likely to take place. It is submitted that said 30 meter road is passing through the gauchar land as well wherein, now, there is a reservation for public purpose. It is submitted that the petitioner has been involved in growing trees and preserving the green cover. Even the proceedings have been initiated before the National Green Tribunal. The road is connecting only to the riverfront and ends upto the airport. It is further submitted that the petitioner therefore, on 25.07.2022, made representation to the State Government.
11.10 It is submitted that notice came to be issued on 07.09.2022 which, was received on 23.09.2022 and on 26.09.2022, request was made for adjournment, accordingly, a fresh notice came to be issued on 28.09.2022 which, was received on previous day around 14:00 hours slating the hearing on 07.10.2022. Request was therefore made for sometime, stating the grounds and objections. It is further submitted that the 24 meters road has been provided with two dead ends. Reliance is placed on the final report of the Gujarat Institute of Desert Ecology indicating what exactly is biodiversity of the area. It is submitted that even proceedings are pending before this Court by way of Letters Patent Appeal No. 1052 of 2011 and the area has been barricaded. Also, 80% of the land is open. It is therefore submitted that in absence of any reasons assigned, the matter requires reconsideration by the Town Planning Page 27 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Officer, as, there is a complete non-compliance of principles of natural justice and Rule 26 of the Rules of 1979 has been violated by the Town Planning Officer.
(v) Special Civil Application No. 24962 of 2022 11.11 Mr Rashesh S. Sanjanwala, learned Senior Counsel appearing with Mr Aadit Sanjanwala, learned Advocate submitted that the captioned writ petition is in connection with eight parcels of land. Initially the request of the petitioners was accepted and consolidated final plots were given to the petitioners in the sanctioned draft scheme on 16.09.2004. It is submitted that the total holding of the petitioners was 75,672 sq. mts. and what remained after deduction was 55,760 sq. mts. While relying upon the map indicating the comparative position prevailing originally, that is, after the draft TP scheme was sanctioned and proposed plots during the preliminary TP scheme, it is submitted that the petitioners were in possession of survey no. 352 and survey no. 341 on one side and parcels of land bearing survey nos. 339, 340, 342 and 346 on the other side. It is submitted that since there were buildings existing in scattered manner, during the draft TP scheme, the petitioners were allotted final plot in survey no. 352 and survey no. 349 with a larger area coupled with a similar area of survey no. 346 and the land bearing survey nos. 339, 340 and 342 were retained. It is submitted that the petitioners were not having any issue and the whole area was developed as green cover accordingly; however, now as per the preliminary TP scheme the said green cover is converted into urban forestry and the petitioners are allotted plots at scattered places.
11.12 It is next submitted that the decision was provided by Page 28 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined the Town Planning Officer in form J and the remarks column is empty and it can be easily said that no decision is taken on the petitioners' representation disregarding the language contained in the provision using the words "consideration" and "decision". It is submitted that the word "consider" in Rule 26 is also interpreted to mean consideration in a form reflecting application of mind. The note together with the form J are only standard instructions. The grievances of the petitioners were submitted somewhere in the month of September, 2023; and have not been considered which is the specific case of the petitioners, more so the reply is also absent dealing with the said aspect. While concluding, it is submitted that after draft scheme was sanctioned and land was allotted, back then the petitioners have developed it by putting up certain constructions and the green cover, which suddenly is now earmarked as urban forestry. The petitioners are ready and willing to maintain the urban forestry by filing an undertaking. It is submitted that the philosophy and the approach of the authorities is to retain the trees, then it is difficult to understand as to why the authorities are becoming insensitive towards the trees. Thus the authorities have failed to substantiate the consideration by the Town Planning Officer.
(vi) Special Civil Application no.18142 of 2021
12. Mr Mitul K. Shelat, learned advocate for the petitioner submitted that the petitioner is seeking direction to implement the scheme for, the petitioner though was allotted the final plot no.57 during the process of the draft TP scheme; got the necessary permission from the Corporation in the year 2011; paid a huge amount of fees in September 2011, is deprived of utilising the land. It is submitted that a road network has been provided in the draft TP scheme; none of the roads have been opened and as a result the Page 29 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined petitioner is unable to develop the land.
12.1 It is submitted that the draft TP scheme, so also the development plan were of the year 2004 and 2014 respectively and preliminary TP scheme in the year 2024; but till date, there is no road available. It is submitted that while seeking the development permission, one of the conditions imposed is that the private landowners would have to create their own access. The whole exercise has been completed to effect the deduction. It is submitted that the grievances have been raised by the petitioner about the opening of the roads; however, it has fallen on deaf ears. The object of the town planning scheme is to provide planned development with robust road network providing access to the respective plot holders. Even as per the revised development plan of the year 2014, there is a road in existence. The road was originally in existence; however, at one point of time, the road was removed, but in the revised development plan, the 24 meter road was already provided and the road which has been provided in the preliminary TP scheme, is in consistent with the revised development plan of the year 2014. Providing road is in sync with the requirement as contained in the provisions of the Act of 1976.
12.2 It is submitted that the preparation of the development plan is on the macro level; whereas, town planning scheme is at the micro level and therefore, the town planning scheme, cannot be envisaged without the road. In any case, in the revised development plan, there is a road and it cannot be presumed or cannot be argued that the preliminary TP scheme shall not have the road. It is with this grievance that the petitioner is before this Court, seeking implementation of the town planning scheme so as to provide access to the land enabling the development. It is submitted that Page 30 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined various representations were made to the authorities but have fallen on deaf ears, despite the fact that a substantial portion of the land has been procured by way of deduction for the purpose of road. Even the notice was issued in the year 2020 and nothing is done and hence, the petitioner has to approach this Court. It is further submitted that the reply has been filed by the Corporation, opposing entertainment of the writ petition on the ground that as the development permission is of the year 2011, the petition is barred by delay and laches.
12.3 It is submitted that the stand is also taken in the reply that there are possibilities of change in the proposal and once the final plot and network of the town planning road, reaches beyond the stage of consultation, further proceedings would be initiated as per law. It is submitted that the condition no.10 of the communication dated 11.04.2008 has been referred to which provides that it will be the onus of the plot holders to provide for road and/or approach road and the condition has been accepted by the petitioner which is a proforma part of every opinion addressed by the City Town Planning Officer in relation to any proposal received in respect of development of any final plot under any sanctioned town planning scheme. It only speaks of the land owner to make provisions for access to his own plot. However, in no manner, it can absolve the Corporation of its responsibility of laying the public road. It is submitted that similar such permissions have been granted in respect of different final plots under different schemes and such conditions have no nexus with laying of the public road. It is submitted that if there is a town planning scheme, the road would be coming through the land of other private owners and it is difficult to understand as to how the authorities, are requiring the plot holders to provide for the road for the purpose of enjoyment of the Page 31 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined right to his property which burden, cannot be shifted on the plot holders for, it would be rather impossible to provide any access to the plots.
12.4 It is submitted that in the revised development plan (page 114 of the compilation), the road of 24 meter has been provided and therefore, the prayer of the petitioner is to see that the scheme is implemented and the petitioner is able to develop and utilise the plot by having access to the road. It is submitted that a timeline has been provided as per the provisions of the Act of 1976. The duration with respect to the draft development plan, is 3 years; submission of draft plan to the State Government within 6 months from the publication of the draft development plan with an outer limit of 12 months; publication of the draft scheme is provided within 9 months from the declaration of the intent and not later than 12 months; consideration of the object of the draft scheme within one month from the date of publication, so on and so forth.
12.5 Reliance is placed on the judgment of the Apex Court in the case of Municipal Corporation for Greater Bombay and another vs. The Advance Builders (India) Pvt. Ltd., reported in (1971) 3 SCC 381. It is submitted that there is no provision under the Act of shifting the onus on the owners to undertake the laying of the road. It has been clearly stated in the said judgment that the obligation of laying the road, is with the authorities concerned. For the proposition that if the road is provided in the draft development plan, it has to be in the town planning scheme. Reliance is placed on the judgment of the Apex Court in the case of in the case of Ahmedabad Municipal Corporation and Another vs. Ahmedabad Green Belt Khedut Mandal reported in 2014 (7) SCC 357. It has been held and observed that the development plan vis-a-vis the town planning scheme are two Page 32 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined different things and the development plan is a macro plan for a vast area wherein a town planning scheme is a minor scheme within the town. It has also been pointed out that sub-section (1) of section 40 simply provides that in the making of a town planning scheme the authority has to have regard to the final development plan, if any. While explaining the term "having regard to the development plan", it has been held and observed that it means that a town planning scheme cannot disregard or ignore the designation/reservation made in the development plan.
12.6 For the proposition of right to property vis-a-vis the provisions of the town planning scheme, reliance is placed on the judgment of the Apex Court in the case of Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals Ltd., reported in (2007) 8 SCC 705, it has been held and observed that although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences it would be construed to be mandatory in character. The Apex Court has pointed out that the right of property of an individual which although is not a fundamental right but a constitutional and human right. It has been further held and observed that allowing the authorities to freeze usage of the land would lead to complete misuse of powers and arbitrary exercise thereof depriving the citizen of his right to use the land subject to the permitted land use and laws relating to the manner of usage thereof. This would be an unlawful deprivation of the citizen's right to property which right includes within it the right to use the property in accordance with the law as it stands at such time. While considering the expression "at any time", it has been held and observed that town planning scheme is made for the purpose of implementation of a Page 33 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined development plan. Ordinarily, therefore, it would envisage the time period for coming into force of the development plan and the expiry thereof. Unless such a construction is given to the words "at any time", it would lead to manifest injustice and absurdity which is not contemplated by the statute and therefore, the stand of the Corporation that it can lay the road at any time, would run contrary to the principle laid down by the Apex Court. It is under these circumstances that the petitioner, has approached this Court, seeking direction to the authorities to implement the town planning scheme and it would be absurd on the part of the Corporation to expect the petitioner to make the provision by providing a right to access his plot.
Re: Submissions of the State Government:
13. Ms Manisha L. Shah, learned Additional Advocate General, assisted by Mr Siddharth Rami, learned Assistant Government Pleader while inviting the attention to the index of documents (Special Civil Application no.21780 of 2022) submitted that undeniably the network of roads is heart of town planning scheme and is its important facet. Scheme though sanctioned in the year 2004, is awaiting the light of the day. It is further submitted that the town planning scheme encompasses land admeasuring 11,82,000 sq. mtrs. and approximately, 245 revenue survey numbers are covered. Also, 220 plots have been reconstituted at the stage of the preliminary scheme. It is submitted that the decision has been declared, followed by passing of the award and publication. Now everything would go to the State Government and it is open to the petitioners, to make representation, which would be considered and a decision would be taken. In view of the status quo granted by this Court, it is not sent to the State Government, It is submitted that the Page 34 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Town Planning Officer takes consultation with respect to the roads under section 48A of the Act of 1976. Entire matter with legend goes to the Corporation. During the process of the preliminary TP scheme, ample consultations at various stages are sought for by the Town Planning Officers with the Corporation; the Chief Town Planner and so also the office of the DILR for the purpose of certification. In the process, the Town Planning Officer, has given ample opportunity to all the affected persons by issuing public notices as well as individual notices, inviting suggestions and objections and only after considering the objections, suggestions, it declared the decision under section 52 of the Act of 1976 read with sub-rule (9) of rule 26 of the Rules of 1979.
13.1 While adverting to the objection of the petitioners as regards the development plan, it is submitted that the plan is being revised every ten years and it deals with larger roads and zones being a macro planning. Even during the revision, notices were published inviting objections and suggestions and the roads were required to be incorporated by the Town Planning Officer in the preliminary TP scheme after considering and in consultation with the Corporation, keeping in mind the requirement of the road network in the city. Section 40 of the Act of 1976, clearly provides preparation of town planning scheme for the development area, regard being had, to the proposals in the final development plan and hence, while effecting the micro planning, the authority has to take into account the development plan.
13.2 It is submitted that for the first development plan, sanctioned under section 17 in the year 1987, there was no road proposed; however, in the revised development plan, which was sanctioned on 18.05.2002, proposal to delete part of 36 meter road and reduce Page 35 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined part to 18 meter road, coupled with a new alignment of 18 meter, was sanctioned. It is further submitted that accordingly, vide notification issued on 20.02.2004, the revised development plan under section 19 came to be sanctioned whereby, part of 36 meter road came to be deleted and part reduced to 18 meter road and new alignment of 18 meter road was approved. It is further submitted that in the draft TP scheme sanctioned, proposed 30 meter road came to be deleted and alignment as per variation approved in revised development plan of Ahmedabad Urban Development Authority (hereinafter referred to as "the AUDA"), was directed to be considered. It is submitted that once again a notification was issued, inviting objections and suggestions for inclusion of 36 meter road and on 06.05.2006, a corrigendum came to be issued and 36 meter road was replaced by 30 meter road. It is further submitted that the 24 meter road is proposed under the second revised development plan and at the stage of preparation under sections 9 to 17, opportunity to submit necessary objections and suggestions was provided. The second revised development plan, came to be sanctioned under section 17 of the Act of 1976 after undertaking necessary procedure on 20.12.2014 which, has remained unchallenged and therefore, challenging the legality and validity of the 24 meter road at the stage of preliminary TP scheme, cannot be permitted as it forms part of the second revised plan sanctioned in the year 2014.
13.3 Ms Manisha L. Shah, learned Additional Advocate General (Special Civil Application no.19030 of 2022) submitted that as per the provisions of sub-section (1) of Section 52 of the Act of 1976 and the procedure laid down in Rule 26 of the Rules of 1979, the Town Planning Officer has issued notices based on the revenue record to the land owners inviting suggestions and objections, Page 36 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined recording the proposals of the draft TP scheme, followed by individual notices in the years 2005, 2010, 2021 and 2022. It is submitted that everything is minutized and it goes to the State Government maintaining the uniformity and with a view to seeing that everything is considered by the State Government dispassionately. It is submitted that schedule to the notification dated 16.09.2004 sanctioning the draft scheme, contains various aspects. Serial no.5 provides that 30 meters wide road passing through the survey numbers indicated therein shall be deleted and alignment shall be taken as per the variation approved in the revised development plan dated 20.02.2004. Further paragraphs, indicate providing a town planning scheme road to final plots which does not get the frontage from the town planning road. Furthermore, the instructions are also issued in paragraph 7 that while finalizing the preliminary TP scheme, the Town Planning Officer shall decide the road network as per the approved layout plan of revenue survey no.296 and 297.
13.4 It is submitted that for survey no.298 the revenue record reflected the total area admeasuring 27,417 sq. mtrs. It is submitted that if one goes by the redistribution and valuation statement, survey no.298 was 23,842 sq. mtrs. whereas, 787 sq. mtrs. belongs to the State Government and 3360 sq. mtrs. to the Corporation which makes a total of 27,989 sq. mtrs. If one considers the 7/12 form, the total area of survey no. 298 shown is 27,417 sq. mtrs. and therefore, 572 sq. mtrs. is in the excess. Therefore, the issue would be as to how the Town Planning Officer would fit the excess area. It is submitted that there is a common 7/12 form and names of all the owners are reflected jointly. In the case of joint holdings no demarcation and bifurcation is provided and the allotment is with an endorsement that rights of owners in the final Page 37 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined plot would be as per their proportionate shares in the original plot. Under these circumstances, the owners were required to get the Hissa Mapni done and once it is made available, the owners would be allotted separate final plots.
13.5 It is next submitted that notice dated 28.03.2005 was issued to all the land owners which has been duly served. One of the co-owners submitted the reply and requested that she would be filing the reply within 15 days. Similarly, another co-owner also requested for allotment of the final plot in the original plot itself. One another co-owner, namely, Pourus R. Mehta, petitioner in another writ petition, has indicated that he had tried to get the Hissa Mapni but the DILR had not done the survey because of the objection by the other co-owner. It is submitted that the requirement of DILR was pointed out since the year 2005, 2006 and was not raised for the first time in the year 2021. Since the co- owners were unable to provide Hissa Mapni, the Town Planning Officer, has allotted a common plot to all the plot holders. Therefore, since the year 2005 all the plot holders were aware about the requirement; and as it was not fulfilled, decision has been taken.
13.6 It is submitted that the proceedings have been filed between the parties. Even the writ petition being Special Civil Application no.14177 of 2005 was preferred disputing the mutation entries wherein, a reference is of the first appeal pending before this Court. Even the mutation entries based on the registered sale deed and more particularly, plot no.E/1 has been made subject to ultimate outcome of the civil proceedings between the parties more particularly, first appeal no.2188 of 2003. It is submitted that there are litigation and disputes with respect to the ownership, location and area of land between the parties. Therefore, unless the revenue Page 38 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined records are reconciled by the petitioners and Hissa Mapni, that is, land sub-divisional measurement is inter se resolved, the Town Planning Officer cannot allot separate final plots to the land owners. The contention as regards the objection by the Army is not the issue to be raised by the petitioners. If at all any objection is raised, the State Government will look into it.
13.7 It is submitted that in the second phase, notice dated 10.08.2021 was issued by the Town Planning Officer to the land owners of survey no.298 which was responded to on 09.09.2021 and the owners are very much aware about the mistake. Another objection was lodged on 04.10.2021 clearly stating that no DILR Hissa Mapni has been done in their survey number, even if some of them have got it done in their individual capacity it is not accepted or binding to the other plot holders and it should not be considered as formal Hissa Mapni of survey no.298.
13.8 It is submitted that it is always open for the petitioners to have the final plots divided in terms of section 67A of the Act of 1976 after the preliminary TP scheme is sanctioned. It is submitted that one of the co-owners of Special Civil Application no.19030 of 2022 in its reply had raised a concern that the owner of final plot no.58/3 is showing the entire holding of road in his name as he has wrongly executed the sale deed for the common road which is a subject matter of challenge by way of first appeal no.2188 of 2003. It is further submitted that even if one sees another response, the co-owner states that the total area of private sub-plots does not match the total area of the survey number and rightly so. It is further submitted that similar such response has been given by other co-owners.
Page 39 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 13.9 While referring to the convenience compilation, it is submitted that the total area of survey no.298 was initially 27417 sq. mtrs. which was, from time to time sold in favour of various parties including the owners of the captioned writ petitions. It is further submitted that consultation was done with the Town Planning & Valuation department wherein, there is a specific instruction issued that unless form no.11 and mapni sheet is submitted, separate final plot cannot be allotted and in identical cases uniform policy shall be adopted and has been adopted. It is submitted that notice came to be issued on 14.10.2022 to the petitioners by the Town Planning Officer for the purpose of hearing which was scheduled to be held on 21.10.2022. On that day, representation was received. One of the petitioners Mr P. R. Mehta, remained present pursuant to the notice; however, he refused to sign the rojkam. It is submitted that the writ petition being Special Civil Application no.22104 of 2022 was preferred before this Court wherein, liberty was granted to the petitioner to approach the Town Planning Officer and accordingly, a representation dated 21.10.2022, around 12 o'clock, was filed. The contention that the Town Planning Officer, has overreached the Court proceedings by passing order dated 27.10.2022 is misplaced as the order of the High Court was received by the Town Planning Officer through Senior Town Planner only on 27.10.2022.
13.10 It is next submitted that the petitioner of Special Civil Application no.19030 of 2022 approached the office of the DILR. After taking necessary steps, measurement was carried out in presence of all the concerned, followed by drawing of the rojkam evidencing the signature by all the persons; but stand is taken by the office of the DILR that form no.11 and plot book of the subplots of revenue survey no.298 cannot be issued, owing to the discrepancy to the extent of 572 sq. mtrs. in the District Survey Page 40 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined office record and the revenue record. Stand is also taken by the office of the DILR that if all the joint holders give an application duly signed mutually agreeing to the boundaries of their respective plots aligning it with the District Survey office records, the Town Planning Officer would have issued separate plots to each of the land owners. The differences between the joint plot holders, needs to be resolved as per the provisions of the Gujarat Land Revenue Rules, 1972 (hereinafter referred to as "the Rules of 1972"). It is submitted that the petitioner of Special Civil Application no.19030 of 2022 approached the office of City Deputy Collector, who, in turn, has addressed a letter remitting the matter in order to rectify the revenue records under sub-rule (2) of Rule 21 of the Rules of 1972. The petitioner was accordingly informed by the office of the DILR vide communication dated 10.03.2023.
13.11 It is submitted that the Town Planning Officer has declared its decision on 27.10.2022, followed by publication of the decision on 01.11.2022. Besides, the decision of the Town Planning Officer has been communicated to the land owners in the prescribed form 'J' on 03.11.2022 and the notification of decision declared by the Town Planning Officer was published in the Official Gazette on 11.11.2022. Scheme along with the decision shall be submitted to the State Government under the provisions of section 64 for sanction under section 65 of the Act of 1976. On receipt of the preliminary TP scheme, the State Government may sanction it or refuse to accord the sanction. It is also likely that the State Government may make such modification as may in its opinion be necessary for the purpose of correcting the error, irregularity or informality in terms of the provisions of section 65 of the Act of 1976.
Page 41 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 13.12 It is next submitted that the contention about the decision to be taken by the Town Planning Officer under section 46, is misplaced as, the Town Planning Officer cannot resolve the disputes related to the area of 572 sq. mtrs. The Town Planning Officer may resolve the disputes related to the ownership by the Special Officer who may be appointed; however, in the facts of the case, the dispute relates to the internal sub-division of revenue survey no.298 amongst the plot holders wherein, registered sale deeds have been exceeded to an extent of 572 sq. mtrs. vis-a-vis the area available in village form no.7/12. It is only the parties inter se who can resolve the dispute and reconcile the area of the land and have the Hissa Mapni done.
13.13 While inviting the attention of this Court to the decision of the Town Planning Officer dated 27.10.2022 in the convenience compilation (page 19), it is submitted that three stages of hearing have taken place. The representations submitted by the petitioners have been considered. After consulting the Chief Town Planner and considering the objections of the petitioners, the decision has been taken. Everything is a part of the decision making process. Extensive exercise has been undertaken; and now, everything will be examined by the State Government.
13.14 In Special Civil Application no.22104 of 2022, with respect to survey no. 316 wherein, the issue is of laying down 12 meters town planning road from the middle of the petitioners' land bearing survey no. 316 and 294/2 and reservation being illegal, it is submitted that 12 meter road across the survey no. 316 was sanctioned under the draft TP scheme, and as per the provisions of section 48, the road vests in the Corporation and the Corporation is fully entitled to acquire it; however, numerous representations to Page 42 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined the authorities were made objecting to laying down of the 12 meter road. On one hand, while arguing for survey no. 298, the stand taken by the petitioners is that adhere to the draft TP scheme; however, there is serious objection to the draft scheme which has been sanctioned considering the fact that the road is cutting across the factory of the petitioners. Contention is also raised that try and work out a scheme in such a manner that the structures are saved. It is submitted that the consultation took place with the Chief Town Planner wherein, it was required to consult the Corporation considering the fact that the final plot no. 131 was allotted to the Corporation and the Corporation was thereafter consulted which, in turn, vide communication dated 03.08.2022 suggested to reconstitute the final plot no. 131 in such a manner that the existing borewell is not affected.
13.15 It is submitted that keeping in mind the consultation with the Corporation and the Chief Town Planner, the Town Planning Officer has realigned the 12 meter road passing through the revenue survey no. 316 on the eastern side by 10 meters in order to accommodate the GRUDA approved construction put up by the petitioners and save the petitioners' water resources as objected by him. It is submitted that the petitioners had made a representation dated 31.08.2021 wherein the petitioners have acknowledged the change affected by the Town Planning Officer by stating that all the constructed properties as per the proposal dated 16.02.2012 have been saved. It is submitted that over and above the GRUDA approved construction, even the bore of the petitioners has been saved. Also, another representation dated 01.10.2021 was filed wherein it has been recommended that some portion of the factory of the petitioners has been saved. The tone and tenor of the representation of the petitioners suggest that there shall not be any Page 43 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined deduction at all. It is next submitted that in the revenue survey no. 316 only 26% deduction is proposed by the Town Planning Officer as against the standard deduction of 30%, thus the contention of the petitioners for 0% deduction cannot be accepted. As per the remarks in the redistribution statement, it is expressly clarified that remaining 4% deduction will be effected at the time of redevelopment. It is submitted that suggestion of the petitioners to realign the road (page no. 20-A) cannot be accepted inasmuch as, the endeavor of the petitioners is to save the whole of the plot and giving a deep curve to the 12 meter road. It is submitted that if the request of all the parties is to be accepted, the object of preparation of the Town Planning Scheme would not be achieved.
13.16 Adverting to the revenue survey no.296, it is submitted that the request of the petitioner seeking final plot in lieu of survey no.296/26/B is untenable considering the fact that the road incorporated in the TP scheme in the said revenue survey number is forming part of the layout plan of the year 1947 of the concerned society. The said road is reconstituted as 9 meters town planning road in preliminary TP scheme as per instruction no.7 of the schedule of the sanctioned draft TP scheme dated 16.09.2004. It is further submitted that since 1947, the said parcel of the land has existed as the internal road of the society named Shantiniketan, owing to the layout plan of the said society. It is submitted that Hissa Mapni under form no. 12 of the plot holders of the society was conducted wherein 26 plots were divided amongst the holders and plot no. 26A and 27 admeasuring 101 and 3930 sq. mts. respectively were shown as road and necessary entry has been posted in revenue record. Besides, clause 7 of the sale deed executed by all the plot holders of the society, condition was mentioned agreeing to give an area of the land to be used for laying Page 44 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined a common road. It is therefore submitted that the 9 meter road proposed in the preliminary TP scheme on survey no. 296/26/B is as per original layout plan and it is in consonance with condition no. 7 of the notification dated 16.09.2024.
13.17 While dealing with Special Civil Application no.22693 of 2022 with respect to final plot nos.314/2, 314/3 and 315, it is submitted that the Town Planning Officer has allotted final plots in their respective original plots considering their holdings and ownership. Request is for deduction under the town planning scheme to be carried out from revenue survey no.315 and the petitioners, shall be given consolidated final plot in land bearing survey no.314/1; but the redistribution form (page 222), suggest that survey no.315 is of the joint ownership of the Abani Construction Company and therefore, separate final plots to different land holders, in absence of the Hissa Mapni, cannot be granted which, was in tune with the circular dated 07.08.2020 issued by the Revenue Department. It is nobody's case that the Hissa Mapni was carried out with respect to survey no.315. During the consultation process with the Chief Town Planner, the said factum is substantiated, specifically opining that in all cases, where original plots are of joint ownership, final plot shall be provided in joint ownership, except in cases where authorized Hissa Mapni is produced. The Town Planning Officer adhered to the policy and has followed the uniform procedure across all the plot owners and in absence of clear demarcation of the boundaries as per village form no.7, common final plot has been allotted.
13.18 It is submitted that adjustment is sought considering the green cover, the said request is not justified inasmuch as, as per the field visit report of the joint committee constituted in connection Page 45 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined with O.A. no.549 of 22, the trees in plot nos.312, 313, 322 and 323 fall under non-reserve categories of trees. While referring to the convenience compilation, it is submitted that the bullet point no.2 it is observed "during the visit it was found that the tree cutting is not done in this land (plot nos.313, 322, 323), it was found that there is clusters of Gaando Baawals (Prosopis Julifora) grown self and no tree is cut in this land for SRFD project work". Moreover, conclusive remarks clearly specify that in plot nos.313, 322, 323, the trees come under the non-reserve category of trees. It has been observed that if felling of the trees is to take place then double the trees shall be planted. Therefore, the stand taken by the petitioners about the thick vegetation or green cover is not correct. Conscious efforts have been made to ensure minimum damage to the existing trees in the entire TP scheme ensuring appropriate compensatory measures for growing more trees in consonance with the policy of the State Government. Adverting to the aspect of social infrastructure, it is submitted that consultation took place with the Corporation and it is only after considering the standard deduction of 30% across the town planning scheme, reservation for social infrastructure has been considered in accordance with wide categories provided in section 40(JJ)(iii) of the Act of 1976.
13.19 It is submitted that the petitioners (Special Civil Application no.24962 of 2022) are owners of the revenue survey nos.339, 340/1, 340/2, 342, 346, 349/1, 349/2 and 352 and the lands are of the ownership of different individuals and entities. It is submitted that the Town Planning Officer has allotted final plots to the land owners in their respective original plots, considering their holding and ownership. It is submitted that the stand taken by the petitioners, is that requisite deduction may be effected in the survey no.340/1, 340/2, 342 and 346 and they should be given a Page 46 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined consolidated final plot adjoining to each other in the land bearing survey no.349/1, 349/2 and 352 wherein, in one part, reservation for urban forestry has been suggested. The said stand of the petitioners cannot be accepted because the subject lands are of different ownership and in the name of different individuals and entities and therefore, allotting final plots to different holders of different lands, would not be possible. Besides, the reservation of urban forestry is in consultation, considering overall development and future requirements of the area.
13.20 While concluding, it is submitted that the Town Planning Officer has given multiple opportunities of hearing to the petitioners as is clear from the record and the petitioners also have made several representations offering several hearings by the Town Planning Officer and therefore, the stand taken that no proper opportunity of hearing is given, is absolutely ill founded and unsubstantiable. The petition, therefore, deserves to be dismissed.
Re: Response of the Respondent Corporation
14. Mr Prashant G. Desai, learned senior counsel appearing with Mr Rutul P. Desai, learned advocate, took this Court to the scope of the Act of 1976, referring to judgment of the Apex Court in the case of Maneklal Chhotalal & Others vs. M. G. Makwana reported in AIR 1967 SC 1373. The competency of the State Legislature to enact measures were traced in entry no.18 of List II of VIIth Schedule and includes "land" and entry no.20 of List III which is "economic and social planning". In continuation of the said submission, further reliance is placed on the judgment in the case of State of Gujarat vs. Shri Shantilal Mangaldas & Others reported in (1969) 1 SCC 504. The Apex Court, inter alia, has held and observed that the scheme Page 47 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined includes within its sweep, the provisions of lay out of plans, lay out of new streets, roads, construction, diversion, extension, alteration, improvement and stopping up of streets, roads and communications etc. The powers and duties of Town Planning Officer have also been discussed in great detail. It has been held that the object of the scheme is to provide amenities for the benefit of the residents, reduction of the area in the occupation of the individual holders of land, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community.
14.1 Further reliance is placed on the judgment in the case of Girnar Traders vs. State of Maharashtra & Others reported in (2011) 3 SCC 1. The legislation in question before the Apex Court was Maharashtra Regional & Town Planning Act, 1966 (for short "Act of 1966"). Considering the provisions of the Act of 1966 vis-a-vis, the Land Acquisition Act, 1894, it has been held and observed that the complete scheme has been provided under the MRTP Act for attaining the object of planned development. Various provisions of the Act comprehensively prescribe what and how the steps are required to be taken by the authorities under the Act, right from the stage of preparation of draft development plan to its finalization as well as preparation and finalization of all regional and town planning schemes. It has been further pointed out that there is no aspect which is not dealt with or provided for under the provisions of the State Act. Besides providing right of objection to the owner of the land or property, the State Act also provides machinery for finalization and determination of disputes between the authorities and private parties. Furthermore, a person is entitled to raise all disputes including the dispute of ownership.
14.2 It is further submitted that the provisions cover the aspect of Page 48 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined development and planning and in the process individual may loose some right; however, it is for the benefit of the community and individual problems cannot be considered. The issues raised by the petitioners, are individual and for that the provision is for making a representation to the State Government under section 67A of the Act of 1976 and therefore, in view of the effective alternative remedy available, the issue cannot be determined in the writ petition. It is further submitted that not one but two remedies are available and for that purpose, the scheme cannot be put to hold and the petitioners can very well avail of the alternative remedies. It is conceded that the Corporation has committed a mistake in providing separate plots at the time of preparation of the draft TP scheme and ought to have allotted common plot.
14.3 It is further submitted that section 14 of the Act of 1976, is a provision for inviting suggestions or objections to the draft development plan and no hearing is provided save and except the consideration by the authorities. Moreover, sub-section (3) of section 17, envisages that the final development plan would be binding on the Area Development Authority and all authorities situated in the area. The 24 meters road, is sanctioned during the preparation of the development plan and in view of the provisions of sub-section (3) of section 17, it is binding on all the authorities.
14.4 It is further submitted that sub-section (3) of section 17 provides the binding effect of the development plan to all the authorities including the Town Planning Officer. It is further submitted that clause (JJ) of sub-section (3) of section 40, specifies the percentage for the factors as enumerated therein but not for the plots and therefore, reliance is misplaced. Section 41 provides for declaration of intention of making the scheme. The Chief Town Page 49 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Planner is to be consulted and that is how the process of consultation. Rule 17 of the Rules of 1979, provides for meeting of owners and making of tentative proposal and the appropriate authority explaining in such meeting the tentative proposals of the draft TP scheme to the owners for eliciting public opinion and suggestions on the said proposals and the appropriate authority, may take into consideration all such suggestions as made and objections raised on the proposal for the purpose of making the draft TP scheme. It is thereafter, the town planning scheme is prepared which, then, is sent to the State Government for the purpose of its sanction, followed by the appointment of the Town Planning Officer in terms of Section 50 of the Act of 1976 read with Rule 24 of the Rules of 1979.
14.5 It is further submitted that reliance placed on clause (xi) of sub-section (3) of section 52 of the Act of 1976, is also misplaced inasmuch as, proviso carves out an exception for making variation except the variation of substantial in nature which, is with the previous sanction of the State Government and after hearing the appropriate authorities and land owners. It is submitted that there is no substantial variation as original area of the final plot is not changed except the removal of plotting.
14.6 It is submitted that sub-rule (3) of Rule 26 of the Rules of 1979, is the provision for issuance of the notice in form 'H', followed by opportunity of stating their views and after hearing, the Town Planning Officer has to only take into consideration the views and nothing more. Sub-rule (6) of Rule 26, by which the Town Planning Officer has to record and enter in the scheme every decision given by him in the prescribed forms 'F' and 'G' as indicated therein which has been done in the present case, followed by the award. All the Page 50 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined petitioners were heard; however, decision is not to be conveyed but only the extract. It is submitted that the Town Planning Officer, in terms of the provisions of Rule 26 has given its award; however, in view of the status quo granted by this Court, the same has not been sent to the State Government. It is further submitted that prayer to quash the award and sent it to the Town Planning Officer for hearing, is also untenable. Such contention has been raised only with an intention to see that no town planning scheme is implemented in the area. The request of remand also cannot be considered as, the award is passed which may be right or wrong and thus, filing of the writ petitions, is premature.
14.7 Reliance is placed on the judgment in the case of Goodluck Trading Company vs. State of Gujarat & Others rendered in writ petition being Special Civil Application no.3528 of 2016. The issue before the Court, was seeking direction to the State Government to consider the pending representation before sanctioning the preliminary TP scheme. Accepting the submission of the State Government about the petition being premature, this Court, did not entertain it. Therefore, all the writ petitions are premature it having filed before the State Government could apply its mind to the decisions of the Town Planning Officer. It is further submitted that while sanctioning the scheme under section 65 of the Act of 1976, aspect of refusal of the sanction by the State Government is very much involved and therefore, it implies application of mind.
14.8 It is submitted that reliance placed on the judgment in the case of Kishanbhai Hargovandas Patel vs. State of Gujarat (supra), is misplaced considering the fact that there was a major modification without there being any opportunity of hearing to the plot holders granted and therefore, the Hon'ble Court, while not accepting the Page 51 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined submission of the appropriate authority, remanded the matter to the State Government. It is submitted that everything would be open before the State Government and the petitioners can file objections which, can be considered by the State Government. It is not the case of the State Government that it will not consider the objections. Hence, efficacious remedy is available to the petitioners. It is also likely that the State Government may hear the petitioners and consider their objections and therefore, the doors, are not closed of the petitioners for raising the objections.
14.09 It is submitted that the attempt on the part of the petitioners of filing the writ petition is malicious considering the events which took place. Consultation with the Chief Town Planner was done on 05.03.2002, followed by the declaration on 20.05.2002. It is submitted that the State Government gave its approval to the draft TP scheme on 20.10.2003 and sanctioned it on 16.09.2004. In the year 2022, the preliminary scheme, is in the process of being sanctioned, hearing has been granted. During the sanctioning of the preliminary scheme, objections are raised only with a view to seeing that for another 20 years, the scheme is not sanctioned. It is submitted that since the year 2002, 2004 and 2024, there are lot of changes together with the development and therefore, one cannot halt the development and steps are to be taken today at the earliest.
14.10 It is submitted that the revised development plan was sanctioned in the year 2014 together with the regulations vide notification dated 20.12.2014 and in the said development plan, the 24 meter road, was allowed from Sabarmati riverfront to airport circle passing through survey nos. 299, 398, 296, 297, 295 and others. It is submitted that the road, since is provided in the Page 52 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined development plan and as per section 40 of the Act of 1976, the town planning scheme is to be made regard being had to the proposal in the development plan. While referring to the Google Map, it is submitted that Town Planning Scheme no.67, covers a large tract of land including 24 meter roads which goes towards the Sabarmati riverfront connecting the proposed bridge and therefore, the argument that there is a blockage is misplaced. The 24 meters road, is already forming part of the development plan of the year 2014 with a small blockage that, is also being taken care of by negotiating with the Army so as to cope up the issue of traffic. There are request made that owing to the objection and non- implementation of the town planning scheme, the road is not fully constructed and some of the residents are unable to connect to the Sabarmati riverfront and hence, representations have been received for opening of the road. It is submitted that there are umpteen numbers of original and final plots involved in the town planning scheme and the petitioners are concerned with either 20 or 15 final plots and hence, it is not about only the petitioners but the mass that is affected and involved in the town planning scheme. It is further submitted that the Corporation, has also filed the reply giving the details of the town planning scheme, the stages involved and the steps taken.
14.11 Reliance is placed on the judgment in the case of M.M.P. Charitable Trust Thr' Its Managing Trustee vs. State of Gujarat Thr' Secretary & Others reported in (2005) 4 GLR 3340. This Court, has taken a categorical view that town planning authorities are the best persons having technical knowledge to propose a road in a scheme and it is not for the Court to decide as to where the road should be proposed, as it is not sitting as an appellate authority against the decision taken by the expert body under the Page 53 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined town planning scheme. It is submitted that interference would be allowed only in two eventualities - fraud and decision is without jurisdiction. Reliance is also placed on the judgment rendered in Special Civil Application no.1608 of 1979. While considering the newly amended Rule 21(3) of the Rules of 1979, this Court, observed that the persons affected by any particulars of the scheme are given opportunity of stating their views and making their representation before the decision is taken by the Town Planning Officer affecting their rights and at the same time, requirement of issuing individual special notices is dispensed with. It is further submitted that the Division Bench, has observed that principle of natural justice, is not rigid rule and is aimed to secure justice and to prevent miscarriage of justice. It operates only in the area not covered by any law validly made.
14.12 It is submitted that in the case on hand, objections are filed, notices are given under Rule 26(3) of the Rules of 1979 and not only that, earlier also in the year 2005, 2016, 2019 and 2020, notices were given to the petitioners and they have filed their objections and when sufficient opportunity was given, it can't be termed as an arbitrary exercise of powers by the Town Planning Officer. The Town Planning Officer has not only afforded opportunity but has followed the procedure of giving notices to the petitioners. While referring to the provisions of sub-rule (4) of Rule 26 of the Rules of 1979, it is submitted that the word used is 'considered'. It states that the decision is to be taken after consideration of the objections; however, it does not say as to the nature of the order to be passed by the Town Planning Officer, either speaking or non- speaking order. The decision taken, is to be communicated under sub-rule (9) of Rule 26 of the Rules of 1979.
Page 54 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 14.13 Reliance is placed on the decision of the Bombay High Court in the case of Rational Art and Press Private Limited vs. State of Maharashtra passed in writ petition no.3008 of 2021. "Would considered" has been interpreted. In paragraph 36, the Court has discussed the term 'considered'. It is submitted that decision is to be taken after considering representation and decision can be 'yes' or 'no'; however, it does not suggest as to the decision has to be a speaking order or a non-speaking order and is to be communicated under sub-rule (9) of Rule 26 of the Rules of 1979. Language contained in section 28 of the Act of 1976 is very much similar and it requires the planning authority after considering the report of the planning committee and the suggestions or objections received by it, modify or change the plan. It is submitted that Town Planning Officer may take decision and may say 'yes' or 'no'; however, there is no further requirement except taking a decision. It is further submitted that decision was taken and is to be communicated in form 'J'. Reading of form 'J', suggest that it is an intimation to the recipient of the decision in the prescribed format which has been communicated. There is total application of mind by the Town Planning Officer which has been narrated in the extracts produced by the State Government by way of the convenience compilation. Entire procedure from declaration of intention to the decision of the Town Planning Officer has been strictly followed and therefore, at this stage, interference is uncalled for.
Re: Rejoinder by and on behalf of the petitioners
15. Mr Mihir Joshi, learned senior counsel assisted by Mr Amar D. Mithani, learned advocate, in rejoinder, submitted that section 48 and 48A of the Act of 1976 provides for sanction of the draft scheme by the State Government and the draft TP scheme provided by the Page 55 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Corporation, has been sanctioned by the State Government. Section 48A is a provision for vesting of a land in appropriate authority; the Corporation, after submitting the scheme, has become functus officio and therefore, to say that allotment of a separate plot, is a mistake, is misplaced. Also, the State Government does not consider it as a mistake or else the State Government would have returned the scheme to the Corporation, seeking necessary rectification. While referring to the page 19 of the convenience compilation, it is submitted that it was not forming part of the affidavit. It is further submitted that a detailed narratives have been recorded and paragraph 11 is the decision but, the consideration is totally missing. Entire arguments made by the State Government, is on the basis of the correspondences and it may not be strictly relevant for, this is not what the Town Planning Officer says. It establishes that not a single objection has been taken into account. Also, not a line is devoted to the objections raised by the petitioners and hence, there is no consideration at all. It is further submitted that the reasons cannot be added in the arguments and submissions.
15.1 It is further submitted that application was filed seeking Hissa Mapni which, came to be rejected on 10.05.2022 and thereafter, another application was filed somewhere in the month of July 2022; however, without waiting for the Hissa Mapni, decision is taken on 27.10.2022. This Court, during the pendency of the writ petition, vide order dated 29.11.2022, has directed the office of the DILR to consider the application and undertake the exercise of Hissa Mapni in respect of plots of survey no.298. Apropos which, the office of the DILR has given its report dated 04.03.2023 to the Town Planning Officer indicating that the consent of all the plot holders is not there; however, the measurement sheet was prepared as per the information given by the plot holders. Even the constructions have Page 56 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined been indicated. It is further submitted that there is consent given by all the plot holders and hence, now, the issue of demarcation of the plot holders can be considered. It is submitted that the sale deed in favour of the petitioners is not in question per se; the issue only is as regards ownership and location of 347 sq. yards and as to whether it passes through the land of the petitioners. Section 46, is a provision which takes care of the disputed ownership to be decided by the Town Planning Officer during the preparation of the preliminary scheme; however, no such procedure has been undertaken and hence, the Town Planning Officer has failed to perform his statutory duties and without due consideration of the objections, has arrived at a decision which requires reconsideration. Clearly, section 46, envisages appointment of the officer by the State Government for deciding as to who shall be deemed to be owner for the purposes of the Act. Furthermore, the decision, is not subject to appeal but shall not operate as a bar to a regular suit in a court of competent jurisdiction with further provision under sub- section (3) to correct, modify in accordance with the decree in the event of a civil court passing such a decree. It is therefore submitted that the stand taken by the State Government that the Town Planning Officer cannot decide the dispute of the ownership is incorrect.
15.2 It is submitted that the objections which are now raised are not forming part of the reply filed on behalf of the respondent nos.1, 2 and 3. It is submitted that the rejoinder was filed by the petitioners clearly taking stand that the Town Planning Officer has not given a single reason in the decision. Contention was also raised about the Hissa Mapni so also the stand taken by the plot holders extending the cooperation. It is submitted that the objection was raised also about 24 meter road passing through survey no.298. It Page 57 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined was also pointed out that the construction of 24 meter road, would completely destroy the built up structure of the petitioners in existence since the year 1985.
15.3 It is further submitted that large number of land owners have been given specific final plot and that too without any deduction at all. The petitioners have also enumerated list of the land owners and the petitioners being subjected to discriminatory treatment; however, nothing has been considered. While referring to section 67A of the Act of 1976, it is submitted that it is not an alternative remedy to fair consideration by the Town Planning Officer inasmuch as, it is not a provision of appeal and hence, the submission that there is an alternative remedy available is misconceived.
15.4 It is submitted that the larger the extent of the powers, the greater is the mandate to ensure the compliance with the procedure. It can't be that exercise is condoned because it subserves a higher public interest. Undisputedly, the Town Planning Officer wields the vast powers and there is no doubt about it which is the very reason why every steps which protects a citizen's interest must be scrupulously adhered to. Therefore, the contention about the public interest prevailing over the private interest would not apply to the facts of the present case. It is submitted that so far as the road is concerned, it was during the consideration of the scheme. The sanctioned revised development plan did not have the road and hence, the draft TP scheme which was sanctioned on 16.09.2004 did not mention about the road and was introduced at the time of sanctioning of the revised development plan in the year 2014 and the Town Planning Officer has sought to superimpose it on the preliminary TP scheme and therefore, there is a room for the objection to be raised by the petitioners. It is submitted that it is Page 58 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined well settled principle laid down in the case of Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi & Others reported in AIR 1978 SC 851 that the reasons can't be supplied by affidavit and therefore, on overall consideration, the matter requires reconsideration by the Town Planning Officer.
16. Mr Rashesh Sanjanwala, learned Senior Counsel submitted that the decisions were forming part of the writ petition either by way of an affidavit or otherwise and have been placed for the first time by way of convenience compilation to substantiate the action taken by the Town Planning Officer. It is submitted that all the decisions, five in number, with respect to the writ petition have been taken on 27.10.2022. It is submitted that on 20.10.2022, the writ petition was filed and was listed on 21.10.2022. Pertinently, the enormity of the task have been performed between 21.10.2022 and 27.10.2022 i.e. five non-working days. It is submitted that had the decisions been produced with the affidavit, the petitioners would have an opportunity to deal with the same.
16.1 It is submitted that the stance taken by the State Government is that the State Government shall consider everything relying upon the provisions of the section 65, considering the fact that the preliminary scheme will go to the State Government along with the decision of the Town Planning Officer together with the objections which shall be considered by the State Government and the prayer of the petitioners for bifurcation and division, the remedy available is under section 67A and therefore, no interference is required. It is submitted that section 65 is absolutely no remedy. It is submitted that at the stage of section 65, there is no participation by the land owners and hence, it is difficult to fathom as to how the grievance of the petitioners can be ventilated under section 65 of Page 59 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Act of 1976.
16.2 In the judgment in the case of Maneklal Chhotalal & Ors. vs. M G Makwana & Ors. (supra), the Apex Court has discussed the scheme. In the case on hand, the issue is about the rights of the petitioners to ventilate and the obligation on the part of the Town Planning Officer to take a decision. It is expected that the procedure is to be followed and strictly adhered to and the petitioners are not against the same, what is hurting the petitioners is non-observance of the provisions of the Rules. It is submitted that in paragraph 45, the Apex Court, has clearly held that reasonableness and restrictions shall be decided both from the substantive and procedural aspects. The stand taken by the authorities that no notice or any hearing or any steps are required to be taken by them, are all in the name of town planning and if such an argument is accepted then, there will be uncontrolled and unguided powers conferred on the authorities. It has been held and observed that if an uncontrolled or unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment the statute may be challenged as discriminatory. It is submitted that the review of the reasons may be limited but the existence of the reasons has to be there and therefore, the stand taken by the State Government that it is not supposed to communicate the reasons is against the provisions of law.
16.3 In the case of State of Gujarat vs. Shantilal Mangaldas(supra), the Apex Court in paragraph 14, has held and observed that to ensure that no undue hardship is caused and owners of plots are given opportunity of raising objections to the provisions of the scheme and the power is conferred upon the Town Planning Officer to entertain and hear objections against the Page 60 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined reconstitution of the plots and matters related to the provisions. Only after the objections have been heard and disposed of, the scheme is published and becomes final. Emphasis is placed on the words "heard and disposed of". The provision of law which calls for issuance of public notice and thereafter an opportunity to state the views is also perceived as a right of hearing which confers an opportunity under the principles of natural justice because no person can be prejudiced.
16.4 Reliance is placed by authorities on the judgment in the case of Ahmedabad Municipal Corporation vs. Green Belt Khedut Mandal (supra). In paragraph 60, entitlement of filing objections and personal hearing is emphasized. It is settled that personal hearing to be given. It is further submitted that to say that the petitioners have no right, flies on the face of it. The Courts have found and asked the authorities to take a decision in accordance with law. In the judgment in the case of Ishwarbhai Ganpatbhai Patel vs. State of Gujarat reported in (2006) 1 GLR 758, this Court has categorically held that being a matter of subjective satisfaction the town planning authorities as well as the State Government must follow the procedure established by law. In the judgment in the case of Bhikubhai Vittalbhai Patel vs. State of Gujarat reported in (2008) 4 SCC 144, the Court has also dealt with the words "consider". It has been held that the term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter.
16.5 It is submitted that after the preliminary TP scheme is drawn by the Town Planning Officer, the same would be forwarded to the State Government under section 64 of the Act of 1976 and Page 61 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined the State Government upon receipt may sanction the preliminary scheme or may refuse to sanction with modification. It is further submitted that once the preliminary TP scheme is sanctioned, it shall have the impact as if it were enacted in the Act. Therefore, at the stage of submission of preliminary TP scheme by the Town Planning Officer, the person affected can have only the right to raise objection before the State Government but he may not have any right of hearing. Therefore, only at the stage of preparing the preliminary TP scheme, the person affected have a right to raise objection and hearing as well which, is a valuable right given to the owner or the persons affected and obligation and duty cast upon the Town Planning Officer to give hearing; consider the objections and give its decision. It is further submitted that non-compliance with the issuance of the notice and giving of sufficient opportunity contemplated in sub-rule (4) of Rule 26 of the Rules of 1979 affects the right to property of the owner and shall be construed mandatory. Compliance of sub-rule (4) of Rule 26, subserves the principles of natural justice so as to avoid arbitrariness and to follow just and procedure in terms of the mandate of Article 21.
16.6 It is further submitted that the total area involved of the original plot was 23,842 sq. mtrs. If one adds land admeasuring 787 sq. mtrs. ULC land as well as land admeasuring 3,360 sq. mtrs. reserved for water works, the total land admeasuring would be 28,989 sq. mtrs. While inviting attention to 7/12 form (page 712 - Special Civil Application no.22104 of 2022), it is submitted that the total land admeasuring shown is 27,417 sq. mtrs. Different khata numbers are being assigned to the respective petitioners with the demarcated area and hence, the petitioners have a clear demarcation. It is further submitted that the Town Planning Officer, on 29.01.2022, has addressed a letter (page 158 - Special Civil Page 62 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Application no.22104 of 2022) to the Corporation wherein, the aspect of Hissa Mapni has been considered. It is submitted that reference is made to the letter dated 31.12.2021 of the Chief Town Planner which, inter alia, suggested that after taking all the necessary details, steps shall be taken in terms of draft TP scheme. The Town Planning Officer, has in terms of the said letter, requested the Corporation to provide the opinion; however, now, the Town Planning Officer, is going exactly contrary to the stand taken vide letter dated 29.01.2022. It is further submitted that the Town Planning Officer, thereafter, on 14.10.2022, addressed a letter to the petitioners inviting objections and suggestions conveying the details in the tabulated form (page 287). It is submitted that consultation process, was still on despite which, the Town Planning Officer has taken a decision on 27.10.2022.
16.7 Mr R. S. Sanjanwala, learned senior counsel, while referring to the relevant notes on procedure (Special Civil Application no.22104 of 2022) with respect to the land bearing survey no.316, submitted that Corporation gave its consultation to the proposal made by the Town Planning Officer. It is thereafter, vide letter dated 10.08.2021 addressed by the Town Planning Officer, survey no.316 was given final plot no.48 without there being any division admeasuring 5382 sq. mtrs.
16.8 It is submitted that after the consultation, the road was shifted. Notices were issued to respective survey nos.316, 298, 296, 297, 294/2, 294/3 requiring the recipient to inspect the tentative preliminary scheme and to provide objections and suggestions. It is further submitted that thereafter, on 19.01.2022, the Town Planning Officer addressed a letter to the land owners, inter alia, informing that after the consultation is received from the Corporation, the land Page 63 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined owners would be informed and objections would be considered and hearing would be provided. It is thereafter that the Town Planning Officer sought consultation of the Chief Town Planner. It is thereafter that the Town Planning Officer got changed. It is further submitted that after the change in the incumbent, notices were issued; however, it were never received by the petitioners. Once again, consultation was sought by the Town Planning Officer and the Corporation, provided the same and approved the map prepared by the Town Planning Officer in its meeting dated 27.07.2022. It is submitted that 12 meter road, came to be shifted. Position, thereafter, got changed and road, was shifted dehors the consultation. It is submitted that vide letter dated 19.01.2022 it was sought to convey which was done only on 06.09.2022 fixing the hearing on 16.09.2022 to lodge the objections and the petitioners, thereafter, had submitted their representation on 21.09.2022. Again on 28.09.2022, further notices were issued in connection with the earlier notices asking the petitioners and the land owners to remain present. Since the petitioners have received the notices, on 07.10.2022, request was made for time, indicating the health issues. It is further submitted that on 14.10.2022, further notices came to be issued calling upon the petitioners to remain present on 21.10.2022. For the first time, drastic changes were made in the preliminary TP scheme. Notices for residential premises and factory premises were also issued. On 21.10.2022, there was an interaction with the Town Planning Officer which, is termed as an hearing. The petitioners, thereafter, had approached this Court and order was passed on 21.10.2022. When the petitioners went back, there was no hearing provided except a brief interaction which issue, was raised by addressing a letter dated 27.10.2022. It is submitted that the Town Planning Officer who has taken the charge in the month of May 2022 makes a substantial changes. What Corporation and Chief Page 64 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Town Planner have suggested, has not been considered and decision has been taken in a hot haste.
16.9 It is submitted that the proposal, underwent a drastic change and for the first time, communicated on 14.10.2022. Being aggrieved, the petitioners preferred the writ petition ventilating the grievance about the manner in which the Town Planning Officer was undertaking process. This Court, was kind enough to issue notice on 21.10.2022 which factum, was brought to the notice of the Town Planning Officer on 21.10.2022 at around 2 p.m. and thereafter at 05.00 p.m. the order of the court was made available. From 23.10.2022 to 26.10.2022 were the public holidays, despite which, the Town Planning Officer took decision on 27.10.2022. It is submitted that the petitioners have raised numerous objections which, could not have been heard and decided on the last working day of the Diwali Holiday by the Town Planning Officer. It is submitted that the haste shown by the Town Planning Officer was only an attempt to overreach the process of this Court after becoming aware about the writ petition.
16.10 It is submitted that from the year 2005 till May 2021, there was no deviation from the lay out in the draft TP scheme. Notice was issued in the month of May 2021 inviting comments. It was at that time, the petitioners learnt that the Town Planning Officer has deviated from the lay out in the draft scheme and has allotted final plots to the petitioners at scattered location which led to the filing of the objection in the month of September 2021. Since there was no response, representation was made in the month of August 2022, reiterating their request to allot final plot in a cluster. It is further submitted that the Town Planning Officer has given its decision in form 'J' as per sub-rule (9) of Rule 26 of the Rules of Page 65 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 1979. Out of the three communications, in form 'J', in two of which, the decision is entirely blank. Besides, the remarks column is empty and hence, it can be said that there is no decision taken on the petitioners representation. It is further submitted that the town planning scheme, has been formulated so as to facilitate the other plot holders and hence, it would be impermissible to apply different standards for different parties.
17. Heard the learned counsel assisted by the learned advocates in the respective writ petitions.
Re: Discussion:
(i) Issues and grievances:
18. Detailed submissions and counter submissions have been made in all the writ petitions. Set forth below is a summary of the issues and grievances raised, together with the corresponding writ petitions.
(i) That, exercise of allotting separate final plots was already done while sanctioning the draft TP scheme by the State Government which was not objected to by any of the plot holders. The Town Planning Officer disregarding the draft TP scheme, has allotted combined final plot with no demarcation, shape and size of the boundaries and deduction mentioned. That, requirement of Hissa Mapni raised by the Town Planning Officer is without any statutory backing. Neither the Act nor the Rules make it a condition precedent for allotting separate final plots. (In Special Civil Application nos.21780 of 2022; 19030 of 2022 and 22104 of 2022) Page 66 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined
(ii) That, to provide a sufficiently wide road instead of 7.5 meter road and to consider the common road area of survey numbers as holding of all plot holders under the Act of 1976 with respect to the land bearing survey no.298, Hansol. (In Special Civil Application no.19030 of 2022)
(iii) That, laying down of the proposed 12 meter TP road passing through the factory of the petitioners is arbitrary and illegal and it needs further reconsideration. The Town Planning Officer has put the reservation affecting the business of the petitioners. Provide final plots in the original plots. (In Special Civil Application no.22104 of 2022)
(iv) That, 30 meter and 18 meter TP roads carved out from the eastern and southern side of the revenue survey no.314/3 are not proper so also, the land reserved for Sale For Residents (SFR) and laying of 12 meter TP road. (Special Civil Application no.22693 of 2022)
(v) That, there is no provision which requires the allotment of final plots only within the original plots. Seeking allotment of final plots in one cluster is only for convenience since the lands have been developed for residential use on the basis of the sanctioned draft TP scheme. That, the deviation by the Town Planning Officer and allotting final plots at a scattered location, without sufficient opportunity of stating the views, suggests non application of mind by the Town Planning Officer while giving the decision. (In Special Civil Application no.24962 of 2022.
(vi) Some of the general issues raised are:
a) That, the Town Planning Officer ought to have exercised the
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powers under section 46 of the Act of 1976.
b) That, there is a breach of the provisions of Rule 26 of the
Rules of 1979.
c) That, there is complete non-compliance of the principles of
natural justice.
d) That, no sufficient opportunity, contemplated under the Rules
of 1979 have been given, injuriously affecting the right to property of the owners.
e) That, the Town Planning Officer has shown undue haste in taking the decision and has overreached the process of law considering the fact that the Court has issued notice and grievance was pending consideration. Besides, the issue of Hissa Mapni was being considered by the revenue authorities.
19. On the other hand, in the writ petition being Special Civil Application no.18142 of 2021, the direction is requested to the respondent to commence the construction work of public roads adjoining the final plot no.57/2 in accordance with the draft TP scheme no.67.
Re: Scope of judicial review:
20. Considering the controversy and the nature of grievances raised, so also the scope and object of the Act of 1976, it reminds the Court of the celebrated judgment of the Apex Court in the case of Tata Cellular vs. Union of India reported in (1994) 6 SCC 651. Bernard Schwartz has been quoted in paragraph 82 and it reads thus:-
Page 68 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined "82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has this to say :
"If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. 'It makes judicial review of administrative orders a hopeless formality for the litigant.... It reduces the judicial process in such cases to a mere feint.' Two overriding considerations have combined to narrow the scope of review. The first is that of deference to the administrative expert. In Chief Justice Neely's words :
'I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.' It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.
The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non- expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners 'it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the Pharmacopoeia'. Such a situation as a state court expressed it many years ago 'is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question'.
The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review Page 69 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmably of the vast majority of agency decisions.""
21. It is celebrated proposition that the Court does not sit as a Court of appeal, but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the decision. If the review of the decision is permitted, it will be substituting its own decision without the necessary expertise which itself may be fallible. It is by now well-settled that the purpose of judicial review is to ensure that the individual receives a fair treatment. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. It would be wrong to say that the Court sits in judgment not only on the correctness of the decision making process, but also on the correctness of the decision itself.
22. In furtherance of the above principle, the issue which falls for the consideration of this Court is that whether the action and decision of the Town Planning Officer are flawed owing to non- adherence of the provisions of the Act of 1976 and the Rules of 1979 in particular. Hence, before adverting to the issues and the grievances, necessary would be to consider the provisions of the Act of 1976, the Rules of 1979 and the judgments on issue.
(ii) Provisions of the Act of 1976 and the Rules of 1979:
23. The Act of 1976 is aimed at providing for planned and controlled development and use of land in urban areas. Chapter II, covers within its sweep manner of preparation of draft development plan; the contents of draft development plan; publication thereof, Page 70 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined coupled with inviting objections and suggestions to the draft development plan to be considered. After following the procedure under section 17, the State Government has the power to sanction the draft development plan. Section 17 reads thus:
"17.Power of State Government to sanction draft development plan. - (1) (a)On receipt of the draft development plan under section 16, the State Government may, by notification,-
(i) sanction the draft development plan and the regulations so received, within the prescribed period, for the whole of the area covered by the plan or separately for any part thereof, either without modifications, or subject to such modifications, as it may consider proper; or
(ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and the regulations in such manner as it may direct: Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be, the authorised officer under this sub-clause, publish the modifications so considered necessary in the Official Gazette along with a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two months from the date of publication of such notice;
or
(iii) refuse to accord sanction to the draft development plan and the regulations and direct the area development authority or the authorised officer to prepare a fresh development plan under the provisions of this Act.
(b) Where a development plan and regulations are returned to an area development authority, or, as the case may be, the authorised officer under sub-clause (ii) of clause (a), the area development authority, or, as the case may be, the authorised officer, shall carry out the modifications therein as directed by the State Government and then submit them as so modified to the State Government for sanction; and the State Government shall thereupon sanction them after satisfying itself that the modifications suggested have been duly carried out therein.
(c) Where the State Government has published the modifications considered necessary in a draft development plan as required under the proviso to sub-clause (ii) of clause (a), the State Page 71 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Government shall, before according sanction to the draft development plan and the regulations, take into consideration the suggestions or objections that may have been received thereto, and thereafter accord sanction to the drafts development plan and the regulations in such modified form as it may consider fit.
(d) The sanction accorded under clause (a), clause (b) or clause
(c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan.
(e) The final development plan shall come into force on such date as the State Government may specify in the notification issued under clause (d).
........ ........ ........ ........
(2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorised officer contains any proposals for the reservation of any land for a purpose specified in clause (b) or 2 [ clause (n) or clause (o)] of sub-section (2) of section 12 and such land does not vest in the area development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final development plan comes into force.
(3) A final development plan which has come into force shall, subject to the provisions of this Act, be binding on the area development authority concerned and on all other authorities situated in the area of the development plan.
(4) After the final development plan comes into force, the area development authority concerned may execute any work for developing, re-developing or improving any area within the area covered by the plan in accordance with the proposals contained in the development plan."
Sub-section (3) provides the binding effect of final development plan. Reading of the provision suggest that subject to the provision of the Act the final development plan shall be binding on the area development authority and on all other authorities situated in the area of the development plan.
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24. Variation has been provided in section 19 on proposal from Area Development Authority or otherwise and if the State Government is of the opinion that it is necessary in the public interest to make any variation in the final development plan, the same, can be done so by publishing it in the Official Gazette. Section 21 states that at least once in ten years from the date on which the final development plan comes into force, the Area Development Authority shall revise it after carrying out, if necessary, a fresh survey and provision of sections 9 to 20, shall apply to such revision. Chapter III provides for various provisions for declaration of urban development areas and constitution of Urban Development Authorities, so also powers and function of Urban Development Authority. Chapter IV makes the provision relating to control of development and use of land included in the development plans.
25. What comes next and relevant for the present purpose, is Chapter V titled 'Town Planning Schemes'. Section 40 deals with the making and contents of the Town Planning Scheme. Sub-section (2) provides for making of the town planning scheme in accordance with the provisions of the Act in respect of any land (i) which is in the course of development; (ii) likely to be used for residential or commercial or industrial or building purposes or (iii) already built upon. As per sub-section (3), town planning scheme may make provision for the matters enumerated therein, such as, laying out or relaying out of land; laying out of new streets or roads, construction, diversion; etc.; the allotment of reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets, etc. Certain percentage has been earmarked for roads, parks, playgrounds, social infrastructure in clause (jj)(a) of sub-section (3) of section 40, including the residuary clause (m).
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26. Section 42, speaks about making and publication of the draft scheme. Section 44 speaks about contents of draft scheme. Particulars, namely, the area; the ownership and tenure of each original plot as well as the particulars of land allotted or reserved under clause (e) of sub-section (3) of section 40 with a general indication of the uses to which such land is to be put coupled with the terms and conditions, proposal to alter the boundaries of original plots; the estimate of the net cost of the scheme to be borne by the appropriate authority together with full description of all the details of the scheme, shall contain in the draft scheme. Section 45, speaks about reconstitution of the plots. While, section 46, is about disputed ownership and it reads thus:
"46. Disputed ownership. - Where there is a disputed claim to the ownership of any piece of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the appropriate authority or the Town Planning Officer at any time prior to the date on which the Town Planning Officer draws up the preliminary scheme under section 51 by such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purposes of this Act.
(2) Such decision shall not be subject to appeal but it shall not operate as a bar to a regular suit in a court of competent jurisdiction.
(3) Such decision shall, in the event of a Civil Court passing a decree which is inconsistent therewith, be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the appropriate authority by the person affected by such decree."
27. As per the provisions of section 46 of the Act of 1976, the State Government may appoint the Town Planning Officer or the appropriate authority for the purpose of deciding as to who shall be the owner for the purposes of the Act. In other words, inquiry has Page 74 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined been contemplated to decide the disputed ownership. Sub-section (2), provides that it shall not operate as a bar to a regular suit in a court of competent jurisdiction but shall not be subject to an appeal. Sub-section (3) states that the decision taken, shall in the event of a civil court passing a decree, which is inconsistent therewith be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the appropriate authority by the person affected by such decree.
28. Section 47 is a provision for lodging the objection to the draft scheme by any affected person. Appropriate authority, is under an obligation to consider such objection and before submitting the draft scheme to the State Government, modify such scheme as it thinks fit. Section 48, are the powers of the State Government to sanction the draft scheme if submitted by the appropriate authority, with or without modification or subject to conditions as it may think fit to impose or refuse to sanction. In the case of hand the draft TP scheme has been sanctioned vide notification dated 16.09.2004. Moreover, as per section 48-A, all lands required by the appropriate authority for the purposes specified in clauses (c), (f), (g) and (h), shall vest absolutely in the appropriate authority free from all encumbrances where a draft scheme has been sanctioned by the State Government under sub-section (2) of section 48. Section 48-A, reads thus:
"48-A. Vesting of land in appropriate authority. (1) Where a draft scheme has been sanctioned by the State Government under sub-section (2) of section 48, (hereinafter in this section, referred to as "the sanctioned draft scheme"), all lands required by the appropriate authority for the purposes specified in clauses (c), (f),
(g) or (h) of sub section (3) of section 40 shall vest absolutely in the appropriate authority free from all encumbrances.Page 75 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
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(3) The provisions of sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,-
(i) sanctioned draft scheme were a preliminary scheme, and
(ii) in sub-section (1) for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under sub-section (2) of section 48" were substituted."
29. Section 49, puts a restriction on use and development of land after declaration of a scheme. Section 50, speaks about the appointment of the Town Planning Officer. Section 51, deals with duties of the Town Planning Officer. Section 52 speaks about the contents of the preliminary and final scheme. Section 52 is reproduced hereinbelow for ready reference.
"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 form 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.
(2) The Town Planning Officer shall submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final Page 76 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined scheme in accordance with the provisions of sub-section (3).
(3) In the final scheme, the Town Planning Officer shall,-
(i) fix the difference between the total of the values of the original plots and the total of the values of the plots included in the scheme in accordance with the provisions of clause (f) of sub-
section (1) of section 77;
(ii) determine whether the areas used, allotted or reserved for a public purpose or purposes of the appropriate authority are beneficial wholly or partly to the owners or residents within the area of the scheme;
(iii) estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public, which shall be included in the costs of the scheme;
(iv) calculate the contribution to be levied under sub-section (1) of section 79, on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public;
(v) determine the amount of exemption, if any, from the payment of contribution that may be granted in respect of plots exclusively occupied for religious or charitable purposes; (vi) estimate the increment to accrue in respect of each plot included in the scheme in accordance with the provisions of section 78;
(vii) calculate the proportion of the contribution to be levied on each plot in the final scheme to the increment estimated to accrue in respect of such plot under subsection (1) of section 79;
(viii) calculate the contribution to be levied on each plot included in the final scheme;
(ix) determine the amount to be deducted from, or added to, as the case may be, the contribution leviable from a person in accordance with the provisions of section 79;
(x) estimate with reference to claims made before him, after notice has been given by him in the prescribed manner and in the prescribed form, the compensation to be paid to the owner of any property or right injuriously effected by the making of the town planning scheme in accordance with the provisions of section 82;
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(xi) draw in the prescribed form the preliminary and the final scheme in accordance with the draft scheme:
Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections.
Explanation :- (i) For the purpose of this proviso "variation of a substantial nature" means a variation which is estimated by the Town Planning Officer to involve an increase of ten percent. in the costs of the scheme as is described in section 77 on account of the provisions of new works or the allotment of additional sites for public purposes included in the preliminary scheme drawn up by the Town Planning Officer.
(ii) If there is any difference of opinion between the Town Planning Officer and the appropriate authority as to whether a variation made by the Town Planning Officer is of substantial nature or not, the matter shall be referred by the appropriate authority to the State Government whose decision thereon shall be final."
30. Enormous powers are wielded in the Town Planning Officer who after giving notice in the prescribed manner and in the prescribed form 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. Sub- clause (ii) provides that after giving notice, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons. Further sub-clause (iii) provides for the total or partial transfer of any right in an original plot to a final plot or to provide for the transfer of any right in an original plot in accordance with the provisions of section 81. It further gives powers to Town Planning Officer to deal with the final plots, its allotment, demarcation, transfer of any rights in an original plot etc. Sub-section (2) deals with submission of the preliminary scheme so prepared to the State Government for sanction, followed by preparation of final scheme in accordance with the provisions of sub-section (3).
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31. Clause relevant and touches the issues and submissions, is sub-clause (xi) of sub-section (3) and it says about drawing of the preliminary and final scheme in accordance with the draft scheme in the prescribed form. Proviso states that the Town Planning Officer may make variation from the draft scheme but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government and except after hearing the appropriate authority and any owners who may raise objections. The expression 'variation of substantial nature', has been further explained through the explanation which means variation estimated by the Town Planning Officer to involve an increase of ten percent in the costs of the scheme as described in section 77 or Rupees one lakh which ever is low on account of the provisions of new works of the allotment of additional sites for the public purpose included in the preliminary scheme. Provision is also made in sub-clause (ii) of sub-section (1) of referring the matter to the appropriate authority in case of difference of opinion as to whether the variation is of a substantial nature or not.
32. Section 62, makes the decision of Town Planning Officer final and binding on the parties, where no appeal has been presented under section 54 in respect of the matter as indicated therein. The preliminary scheme, would be thereafter, submitted to the State Government for its sanction together with the copy of its decision under sub-section (2) of section 52. Section 65, reads thus:
"65. Power of the State Government to sanction or refuse to sanction the scheme and effect of sanction.- (1) On receipt of the preliminary scheme or, as the case may be, the final scheme, the State Government may-
(a) in the case of preliminary scheme, within a period of two months from the date of its receipt, and Page 79 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined
(b) in the case of a final scheme, within a period of three months from the date of its receipt, by notification, sanction the preliminary scheme or the final scheme or refuse to give sanction, provided that in sanctioning any such scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality.
(2) Where the State Government sanctions the preliminary scheme or the final scheme, it shall state in the notification-
(a) the place at which the scheme shall be kept open for inspection by the public, and
(b) a date in which all the liabilities created by the scheme shall come into force:
Provided that the State Government may from time to time extend such date, by notification, by such period, not exceeding three months at a time, as it thinks fit.
(3) On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act.
(4)The appropriate authority shall, after the preliminary scheme is sanctioned by the State Government under sub-
section (2), complete the execution of such scheme within a period of two years from the date of the sanction of such scheme, failing which the State Government may take such actions against appropriate authority as it deems fit."
33. The State Government, has the power either to sanction or refuse to sanction the scheme. The provision is that on receipt of the preliminary scheme or as the case may be the final scheme, the State Government may, inter alia, in the case of a preliminary scheme, sanction or refuse to give sanction. The State Government is authorized to make such modification as in its opinion be necessary for the purpose of correcting an error, irregularity or informality. Sub-section (3) deals with the effect of the sanction and it provides that on and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in the Act. It is well-settled Page 80 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined principle of law that once the scheme is sanctioned by the State Government, it becomes the part of the Act.
34. The effect of the preliminary scheme is provided in section 67. It states that on the day on which the preliminary scheme comes into force, all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances. Sub-clause
(b) states that all rights in the original plots which have been reconstituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer. Section 68, gives a power to the appropriate authority to evict summarily inasmuch as, on and after the date on which the preliminary scheme comes into force, no person is entitled to occupy any land.
35. Section 67A, prescribes the manner of resolution after the scheme is sanctioned. The committee so constituted is empowered to define the share of the joint holders and demarcate the area that may be allotted to the joint holders. As per sub-section (3) of section 67A, the decision of the committee shall be deemed to be the part of the scheme sanctioned under section 65. Section 67A reads thus:
"67A. Manner of resolution of grievances after sanctioning scheme (1) In case where the final plot is allotted in joint ownership in the Manner of sanctioned preliminary or final scheme, then on application being made to the Committee by any of the joint owners, the Committee constituted under sub-section (2) shall give a notice to all the concerned and after giving them an opportunity of scheme. being heard, shall with respect to such final plot define the share of the joint holders and demarcate the area that may be allotted to each of them.
(2) The committee shall consist of the following members, namely:-Page 81 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
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(i) the Secretary, Urban Development and Urban Housing Department, shall be the Chairman;
(ii) the Chief Town Planner, - Member Secretary, ex-officio; and
(iii) any other member, appointed by the Chairman.
(3) The decision of the Committee in this regard shall be deemed to be the part of the scheme sactioned under section 65."
36. Having dealt with the provisions of the Act, a brief reference of the Rules of 1979, would be apt. In exercise of the powers conferred under section 118, the State Government has framed the Rules of 1979 covering the matters as indicated therein viz., the mode and manner of publication of declaration under section 41; meeting of owners and framing of tentative proposals for the purpose of making a draft scheme under section 42; publication of draft scheme under section 42. Rule 23, makes a provision for the procedure where the ownership is disputed and the officer appointed to hold an inquiry under section 46 shall while the inquiry is proceeding, record a minute of the proceedings, the decision and the reasons for the decision.
37. Rule 26, is a most relevant provision, that is, the procedure to be followed by the Town Planning officer, inter alia, under sub- section (1) of section 52. It reads thus:
"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 areas comprised in Page 82 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 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 therefor. 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 Page 83 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 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 case may be. The Town Planning Officer shall also inform the President of the Board of Appeal about the publication of final scheme."
38. As per sub-rule (1), the Town Planning Officer shall give notice in Form 'H' of the date on which he commences his duties and shall state the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim. The notice is to be published in the Official Gazette and in the local daily's having a circulation in the area. Additionally, the notice, is to be pasted at the prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer. As per sub-rule (2), it will be open for the Town Planning Officer to carry his duties on working days and during working hours. As per Sub-rule (3), the notice published in Form 'H' shall specify the matters which are proposed to be decided by the Town Planning Officer requiring all persons interested in the plots or affected by any matters specified, to file their objections within the stipulated period.
39. Sub-rule (4) makes a provision for giving every person interested in any land or affected by any particulars of the scheme, sufficient opportunity of stating their views. It also provides that the Town Planning Officer shall not give any decision till he has considered the representation. Sub-rule (5) speaks about recording of a brief minute in his own hand, setting out the points at issue, if during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to part of the scheme. The Town Planning Officer shall thereafter, Page 84 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined give a decision with the reasons therefor. Minutes, shall be appended to the scheme. Sub-rule (6) states that the Town Planning Officer shall record and enter in the scheme every decision given by him coupled with the calculations and the estimates recorded in Form F, Form G and in other statements. The scheme drawn up by the Town Planning Officer shall include particulars specified in Rule 21 read with section 52 as per sub-rule (7) of Rule 26. Rule 21, provides for the particulars, namely, index map on a scale, the area included in the scheme and the surrounding within reasonable limit on all sides of such areas; all existing roads; means of communication of every kind, etc. As per sub-rule (iv) of Rule 21, a plan is to be prepared on a scale showing the boundaries of the plots as they will appear after the final scheme is executed with their numbers and illustrating by means of colours, letters and explanatory notes or in some other convenient manner all such provisions of the scheme as per the sub-rule (iv) of Rule 21. A redistribution and valuation statement in Form 'F' showing the estimated amounts to be paid to or each of the owners included in the scheme.
40. Sub-rule (9) of Rule 26 is also crucial for the present purpose. It states that 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 for the public during office hours. It also obligates that the Town Planning Officer to communicate forthwith the decisions taken by him in respect of each plot to the owner or person interested, by the issue of the requisite extract from the scheme in Form 'J' and Form 'K' as the case may be. Information is to be provided by the Town Planning Officer to the State Government Page 85 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined about the publication of final scheme. Form "J" is reproduced hereunder for ready reference:
"FORM J [SEE RULE 26(9)] GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT RULES,1979.
Town Planning Scheme No.......
PRELIMINARY I send herewith the extracts of the decisions taken by me in respect of the original Plot No................. of the above scheme taken in accordance with sub-section (1) of section 52 of the Gujarat Town Planning and Urban Development Act, 1976 for information to you as required under sub-rule (9) of rule 26 of the Gujarat Town Planning and Urban Development Rules, 1979.
Sr. Original Area of Plot No. of Area of final Remarks
No. Plot No. Original Plot final plot plot allotted
in sq. mt. allotted in sq. mt.
This preliminary scheme is being submitted to Government for sanction in accordance with sub-section (2) of Section 52 of the Gujarat Town Planning and Urban Development Act, 1976.
TOWN PLANNING OFFICER, TOWN PLANNING SCHEME.
Date: -
I have further to inform you as under :-
(1) The rights of the mortgagor or mortgagee on the Original Plot No. are transferred to the Final Plot allotted against the Original Plot.
(2) All the rights of the passage on the lands merged in the Final Plot are hereby extinguished unless such rights are preserved in column No. 16 of the Form F of the Scheme.Page 86 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined (3) The Tenure of the Final Plot will be as per the tenure of the Original Plot. Any agreement in respect of the Original Plot in between you and the appropriate Authority or the Government are transferred to the Final Plot with the modifications regarding the area allotted in the Final Plot.
(4) unless decided otherwise you will be permitted to remove the trees, compound wall, barbed wire, huts sheds and other materials from the original plot within one month of the date on which the preliminary scheme comes into force or the date fixed by the Government subject to condition that by doing so you will have to fill in all the holes resulted on account of removing the trees and other materials.
(5) Any other matter."
41. Rule 27, speaks about the manner of drawing of the preliminary scheme and 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. Therefore, the provisions of the Act of 1976 and the Rules of 1979, provides for a robust mechanism put in place by the legislature in the matter of planned and controlled development of the area.
(iii) Judgments on issue:
42. It is pertinent to examine, albeit briefly, some judicial pronouncements relied upon by the respective parties and relevant for the present purpose.
43. The Apex Court, in the case of State of Gujarat vs. Shri Shantilal Mangaldas & Others (supra), has observed that in making a town planning scheme, the lands of all persons covered by the scheme are treated as if they are put in a pool. It is then the Town Planning Officer proceeds to reconstitute the plots for residential buildings and to reserve the lands for public purpose. It has been further noted that the Town Planning Officer may lay out new roads, Page 87 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined divert or close existing roads, reserve lands for public purpose and shall also provide for amenities. The Apex Court, has clearly noted that the object of the scheme being to provide amenities for the benefit of the residents generally the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community. Relevant paragraphs 12 to 14 are set out hereunder for ready reference:
"12. In making a town-planning scheme the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholders. The reconstituted plots having regard to the exigencies of the scheme need not be of the same dimensions as the original land. Their shape, and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town Planning Officer may lay out new roads, divert or close existing roads, reserve lands for recreation grounds schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water-supply, filling up or reclamation of low-lying, swamp. or unhealthy areas or leveling up of land so that the total area included in the scheme may conduce to the health and well- being of the residents. Since the town-planning scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community.
13. Under the Act the cost of the scheme is to be met wholly or in part by contributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of each plot.
14. To ensure that no undue hardship is caused and owners of plots have an opportunity of raising objections to the provisions of the scheme including its financial provisions, power is conferred upon the Town Planning Officer to entertain and hear objections against the reconstitution of the plots and relating to matters specified in Section 32 i.e. the physical, legal and financial provisions of the scheme. Only after the objections have been heard and disposed of, the scheme is published and becomes Page 88 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined final."
44. Sections 53 and 67 of the Bombay Town Planning Act, 1955, were declared ultra vires insofar as the provisions authorized the authority to acquire lands under the TP scheme by the High Court. The State, was in appeal which was allowed by the Apex Court, setting aside the judgment of the High Court.
45. Yet in another decision in the case of Ahmedabad Municipal Corporation and another vs. Ahmedabad Green Belt Khedut Mandal (supra), a writ petition was filed before the High Court by the Khedut Mandal, challenging the draft revised development plan and for direction to the appellants to acquire their lands. In view of the amendment in the year 1999 and insertion of section 40(3)(jj), the vires of section 12 and section 40(3)(jj) were also challenged. The writ petition, was partly allowed by the High Court but in appeal before the Apex Court, the judgment of the High Court was set aside to a limited extent. Paragraphs 40, 45, 46 and 54 are reproduced hereinbelow for ready reference:
"40. As we have explained hereinabove that the town planning scheme provides for pooling the entire land covered by the scheme and thereafter re-shuffling and reconstituting of plots, the market value of the original plots and final plots is to be assessed and authority has to determine as to whether a land owner has suffered some injury or has gained from such process. Re- constitution of plots is permissible as provided under the scheme of the Act as is evident from cogent reading of Section 45(2)(a)(b)
(c) and Section 52(1)(iii) in accordance with Section 81 of the Act 1976. By re-constitution of the plots, if anybody suffers injury, the statutory provisions provide for compensation under Section 67(b) read with Section 80 of the Act 1976. By this re-constitution and readjustment of plots, there is no vesting of land in the local authority and therefore, the Act provides for payment of non-
monetary compensation and such a mode has been approved by the Constitution Bench of this Court in Shantilal Mangaldas (supra), wherein this Court has held that when the scheme comes into force all rights in the original plots are extinguished, and simultaneously therewith ownership springs in the re-constituted Page 89 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined plots. It does not predicate ownership of the plots in the local authority, and no process - actual or notional - of transfer is contemplated in that appropriation. Under clause (a) of Section 53, vesting of land in local authority takes place only on commencement of scheme into force. The concept that lands vest in a local authority when the intention to make a scheme is notified, is against the plain intendment of the Act. Even steps taken by the State do not involve application of the doctrine of eminent domain.
45. Article 300-A of the Constitution though creates a human right being a constitutional provision, but is not a fundamental right. Article 300-A provides that no person can be deprived of his property except by authority of law. The Town Planning Act is definitely an authority of law by which a person is deprived of his property if we assume that the town planning scheme deprives a person of his property, though it is not so in view of the judgments of this Court in Shantilal Mangaldas (supra) and Prakash Amichand Shah (supra).
46. So far as the question that upon lapsing of designation under the development plan under Section 20 there cannot be any reservation/designation under a town planning scheme for the same land, is to be understood reading the provisions of the Act 1976 cogently. The development plan is prepared under Chapter II and town planning scheme is made under Chapter V. Therefore, they are two different things. The development plan is a macro plan for a vast area wherein a town planning scheme is minor scheme within the town. Section 40(1) simply provides that in the making of town planning scheme the authority has to have regard to the final development of the plan, if any. Thus, the words "having regard to the development plan" in Section 40 means that town planning scheme cannot disregard or ignore the designation/reservation made in the development plan.
54. Section 40 of the Act 1976 contains the words "regard being had" and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power."
The Apex Court, has held and observed that the development plan is a macro plan for the vast area wherein the TP scheme is at the micro level. It has been also pointed out that sub-section (1) of section 40 simply provides that in the making of the TP scheme, the authority has to have regard to the final development plan. The Apex Court, has interpreted the expression "having regard to the development Page 90 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined plan" to mean that town planning scheme cannot disregard or ignore the designation/reservation made in the development plan. It has also been held and observed that the words "regard being had to" suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.
46. In the case of M.M.P. Charitable Trust vs. State of Gujarat (supra), the writ petition was filed by the trust before this Court, praying for quashing and setting aside the part of the town planning scheme which provided a road through playground of the school owned by the petitioner trust. The petition came to be dismissed. Provisions of Section 17(3) of the Act of 1976 were considered and it has been held that a final development plan is binding on the Area Development Authority concerned and on all other authorities stationed in the area of development plan. Contention was raised by the petitioner therein that the road can easily pass through another plot which was acquired for the pumping station as the land, was lying unused. This Court, held that it is ultimately for the town planning authorities who are the best persons having technical knowledge to propose a road in the scheme and it is not for the Court to decide as to where the road should be proposed in the town planning scheme inasmuch as, the Court is not sitting as appellate authority against the decision taken by an expert body under town planning Act. Paragraph 6 reads thus:
"6. Heard the learned advocates appearing on behalf of the parties. It is not in dispute that there is a Final Town Planning Scheme and on finalisation of which the Town Planning Road is provided to pass through the lands originally belonging to the petitioner. It is also not in dispute that the petitioner is allotted Final Plot No. 60 admeasuring 17230 sq.mtrs., and Final Plot No. 61 admeasuring 886 sq.mtrs., of land against original holding of 22056 sq.mtrs., of land. Thus, the major portion of the land of the petitioner is Final Plot No. 60 admeasuring about 17230 sq.mtrs., Page 91 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined of land. It is required to be noted at this stage that the entire Town Planning Scheme is implemented and the Town Planning Road is laid down except the disputed portion of the land in question only, i.e., the road passing through the original Survey No. 213 and 216(1+2) and 212/B i.e., 3940 sq.mtrs. of land for which the present Special Civil Application is filed. It is also required to be noted that apart from the fact that the Town Planning Scheme has become final, even in the development plan also there is a road proposed which is as per the present final Town Planning Scheme. Considering the provisions of Section 17(3) of the Town Planning Act, a final development plan is binding on the Area Development Authority concerned and on all other authorities stationed in the area of development plan. The only and main contention on behalf of the petitioner is that the road in question can easily pass through the Final Plot No.61 which was originally acquired for a Pumping Station and the said Final Plot No.61 is at present lying unused which is just adjacent to the school and therefore the respondent Corporation ought to have accepted the application submitted by the petitioner for variation to that extent. It is required to be noted that it is the contention on behalf of the respondent Corporation, and so stated in the impugned resolution that the Final Plot No. 61 is included in the land acquisition proceedings for drainage pumping station for Surat Municipal Corporation and that on the said land there is a slaughter house, ST Stand, Godown etc., and in the Final Plot No. 65 there are houses which are constructed where some persons are residing and therefore if the proposal of the petitioner is accepted it is likely to affect other constructed houses on open piece of land provided in the Town Planning Scheme, and taking into consideration the above aspect a conscious decision has been taken by the respondent Corporation not to go for variation of the scheme. Considering the above, it cannot be said that the decision of the Town Planning Committee of the Corporation in rejecting the application of the petitioner for variation of the scheme is in any way arbitrary and/or malafide. It is required to be noted that it is ultimately for the Town Planning Authorities who are the best persons having technical knowledge to propose a road in the scheme and it is not for the Court to decide as to where the road should be proposed in the Town Planning Scheme. This Court is not sitting as an appellate authority against the said decision taken by an expert body under the Town Planning Act."
47. In the case of Ishwarbhai Ganpatbhai Patel vs. State of Gujarat (supra), the issue was, whether it is obligatory on the part of the State Government to provide hearing to the petitioners therein while giving sanction to the revised development plan under the provisions of clause (c) of sub-section (1) of section 17. Also, whether it is obligatory on the part of State Government to supply Page 92 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined copies of objections and suggestions to the petitioners before its finalization. The provisions of Chapter II of the Act of 1976, inter alia, dealing with preparation and publication of the draft development plan, were considered and it has been held and observed that reservation as per the provisions of the Act of 1976 for any particular land is envisaged under section 12 of the Act keeping in mind the need of the society and the future development. Every planning presupposes the need in future. Always therefore, reservation as per section 12(2)(e) should be made keeping in mind the need and necessity of society in future. Town planners must have a good foresight but this subjective satisfaction of the town planning authority as well as of State Government must follow the procedure established by law. Relevant paragraphs, read thus:
"9.Having heard the learned counsels for the rival parties and looking to the facts and circumstances of the case, I am of the opinion that the notification dated 2nd September, 2004 issued by the State Government is true, correct, legal and in consonance with the provisions of Gujarat Town Planning and Urban Development Act, 1976 for the following facts and reasons:
vi) It has been held by this Court in para-9 of the judgment in the case of Kikabhai Ukabhai Patel & Ors. V/s. State of Gujarat & Ors.
reported in 1988(1) GLR 569 as under:
9. So far as second contention is concerned, it must be stated that nowhere in the Act, it has been prescribed to give any personal hearing to an objector. At the stage of publication of the draft development plan and even at the stage of publication of substantial modification, suo motu proposed by the State Government, while being called upon to sanction the development plan, members of the public have been given an opportunity to object. Once their objections are received, they are required to be considered by the concerned authority but there remains no question of giving any personal hearing to such objectors. This is contraindicated by the scheme of the Act and it also stands to reason. There can be hundreds of such objections. If personal hearing is to be given to all such objectors, sanctioning of the plan can never be completed for decades and thus the very prescription of time limit provided by the rule making authority would be rendered nugatory. It is not in dispute that the Page 93 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined petitioners were given ample opportunity to file their written objections to be proposed development plan and their objections were considered by the authority. Consequently, the second contention has also to be rejected. (emphasis supplied) Thus, from the aforesaid judgment, it is clear that once objections are invited and considered, there is no need of giving personal hearing to such objectors. "Personal hearing" looking to the provisions of sec. 17(1)(c) of the Act and also under the provisions of sec. 14 of the Act, is impliedly ousted. Therefore, it has been observed in the aforesaid paragraph that it is contra-
indicated by the scheme of the Act and it also stands to reason that there can be hundreds of such objections if personal hearing is to be given to such objectors and process of sanctioning of plan can never be completed for decades and the very description of the time limit provided by the rule making authority would be rendered nugatory. In the facts of the present case also, enough opportunities were given to the petitioners to raise their objections and suggestions. Objections and suggestions were given by the petitioners once under section 14 of the Act of 1979. Similarly objections and suggestions were given by the Municipal Corporation of the city of Surat under sec. 17 of the Act of 1979 and the State Government has considered all these objections and suggestions under sec. 17(1)(c) of the Act and has given final sanction to the draft development plan, whereby the proposed modification in revised draft development plan, has been dropped by the State Government. Merely because the State Government has published the proposed modification as per proviso to section 17(1)(a)(ii) of the Act of 1976, it gives no additional right to the petitioners to receive objections and suggestions, given by the objectors in pursuance of that notification under sec. 17 of the Act of 1976. Merely because the proposed modification has been suggested by the Government, no additional right is vested in the petitioners, neither of personal hearing nor of getting copies of objections and suggestions given by other persons. Looking to the scheme of the Act and looking to the aforesaid judgment of this Court, no personal hearing is envisaged and the objections filed by one party are not required to be given to other party even when the proposed modification is published either under sec. 15 of the Act, 1976 or under the proviso to section 17(1)(a)(ii) of the Act of 1976. The modifications are possible at two different stages. One at the hand of the Area Development Authority under section 15 of the Act and another at the hand of the State Government under the proviso to sec. 17(1)(a)(ii) of the Act. In both these eventualities, further objections and suggestions ought to be invited. But that gives no separate or additional right to any of the persons of hearing or of getting copies of suggestions and objections, (filed by others) when any modification is accepted, by the Area Development Authority or when the proposed modification is dropped, by the Area Development Authority or when the proposed modification is accepted by the State Government or when the proposed modification is dropped by the State Government.
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(x) It is also contended by the learned advocate for the petitioners that the reservation for much longer period affects the petitioners' right of property if there is a need of sewage treatment plant in the year 2021. In the affidavit-in-reply of the respondent no. 3 as well as of the State, there is no present need or necessity for the imposition of the reservation upon the land in question, especially under sec. 12(2)(e) of the Act, 1976. This contention is also not accepted by this Court for the reason that every development plan remains in force generally for 10 years as per sec. 21 of the Act, 1976 and thereafter as per the provisions of the Act, it should be revised by the Area Development Authority. The need of reservation can be continued looking to the facts of the case. In the facts of the present case, in special civil application no. 13987 of 2005, the reservation was there from 1986 and therefore, if it is extended even after 1996, for a further period of 10 years, then it debars the petitioner from the sale or development of the said property. This attractive contention is legally not sound and is incorrect. The reservation as per the provisions of the Act of 1976, for any particular land is envisaged under sec. 12 of the Act, keeping in mind the need of the society and the future development. The Act, 1976 is pertaining to Town planning. Every planning presupposes the need in future. Always therefore, reservation, as per sec. 12(2)(e), should be made keeping in mind the need or necessity of society in future. Town planners must have a good foresight. But this subjective satisfaction, of Town Planning Authority as well as of State Government, must follow the procedure established by law. If the Area Development Authority decided that the sewage treatment plant is necessary on the particular land, it has to invite objections (under section
13) and thereafter it has to consider the objections (under sec.
14). If area Development Authority thinks, that substantial modification, is required again objections are required to be invited (under sec. 15). In the facts of the present case, Area Development Authority has not proposed any modification so far as reservation of the land is concerned. Now, State Government will receive revised Draft Development Plan with suggestions and objections (under sec. 16). At this stage, Government -
(a) has power to sanction the draft development plan (or revised draft development as the case may be); or
(b) has power to refuse to sanction the draft development plan (or revised draft development plan) and to direct the Area Development Authority to prepare, a fresh, draft development plan); or
(c) has power to return, the draft development plan (or revised draft development plan) to the Area Development Authority for modification; or
(d) ........"
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48. Heavy reliance is placed by the learned counsel for the Corporation on the judgment rendered in Special Civil Application no.1608 of 1979. Rule 21 was considered which provided for a detailed procedure to be followed by the Town Planning Officer. The language of sub-rule (3) of Rule 21, pre-amendment and post- amendment was considered and it has been held and observed that the amendment in sub-rule (3), was on the basis of certain observations made by the Division Bench in the case of Mohanlal Jesingbhai vs. P. J. Patel, reported in 11 G.L.R. 1035. The Division Bench, pointedly observed that from the language of amended sub- rule (3), it is apparent that issuance of special notice is dispensed with but at the same time, ample opportunity is to be given to the affected person to make the representation to the Town Planning Officer. It has also observed that person affected by any particulars scheme are given opportunity of stating their views and making their representation before decision is taken by the Town Planning Officer affecting their rights and at the same time, requirement of issuing individual special notices is dispensed with. In the judgment, it has been held and observed that, "after the amendment of sub- rule (3) notice to each and every interested person is not required to be issued. Notices, are required to be published in newspapers, official gazette and the office of the Town Planning Officer and of the local authority. The substance of the notice is required to be posted at the convenient places in the locality. Hence, non issuance of the special notice would not vitiate the proceedings of the Town Planning Officer." The Division Bench, has observed thus:
"Further It would be difficult for us to accept the contention that the procedure prescribed under amended sub-rule (3) of Rule 21 violates the principles of natural justice. It is well established that the phrase "principle of natural justice" is not a rigid rule, Its aim is to secure justice and to prevent miscarriage of justice. It operates only in the areas not covered by any law validly made.Page 96 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined In the case of Chairman, Board of Mining Examination vs. Ramjos, AIR 1977 Supreme Court 965, Krishna Iyer,J., speaking for the court, observed:-
"Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned circumstances breach of by of the such facts situation, justice natural complained of. Unnatural can expansion and no be of natural justice, without reference to the administrative realities and other factors of a given can be exasperating. We can neither be finical nor finatical but should be flexible yet firm in this jurisdiction."
Therefore, how an opportunity of hearing to the affected persons is to be given is to be determined by the procedure prescribed under the Act or the Rules framed under the Act. As per rule 21(3), tha procedure prescribed is/air because it exhaustively provides for publication of notice at various placas including the office of the Town Planning Officer, Municipality, in the newspapers and at convenient places in the said locality. It enables the affected persons to lodge their objections. The amended rule dispenses with service of special notice to the individual person. May be, this rule is amended considering the magnitude of the work which the concerned Town Planning Officer is required to do. Only because issuance of special notice to the affected persons is dispensed with will not bre be a for holding ground that sub-rule violative of principle of natural justice."
Re: Decision making process and the powers exercised by the Town Planning Officer
49. Having thus discussed the provisions of the Act of 1976 and the Rules of 1979 and the judicial pronouncements, one needs to keep in mind that Town planning is a subject which requires many factors to be taken into account. Though it is a micro planning, it involves countless considerations by the Town Planning Officer. In the present case the town planning scheme encompasses a huge parcel of land admeasuring about 11,82,000 sq. mtrs. covering approximately 245 revenue survey numbers. Approximately 220 plots have been reconstituted in the award of the preliminary TP scheme. Hence, preparation of the town planning scheme is a Page 97 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined gigantic task and in the process, it is likely to affect the rights and interests of many stakeholders. With a view to balancing those rights and interests, the provisions are made of inviting objections and suggestions and taking of the decision by the Town Planning Officer. Having regard to the magnitude of the scheme and the diverse interest of stakeholders involved, the core issue that arises is, whether it would be practicable for the Town Planning Officer to redress all the grievances raised by each stakeholders in accordance with their individual expectations. Answer would be in the negative inasmuch as, addressing concern of one stakeholder undoubtedly may potentially prejudice or adversely impact the interest of another. With a view to taking care of such a situation, various provisions are made, protecting the interest of the stakeholders and at the same time giving full powers and authority to the Town Planning Officer to take decision in consultation with the Chief Town Planner and the Corporation and when experts are involved in the decision making process, it would not be prudent for the Court to suggest how the plots are to be allotted; where and how the roads are to be laid down; the width of the road; connectivity, so on and so forth, except the limited inquiry to find out the manner in which the decision was taken.
50. At the outset, it may be noted that in the case on hand, the draft TP scheme was sanctioned on 16.09.2004 and for almost 16 years, nothing happened. In the interregnum, in the absence of finalization of the preliminary TP scheme, the stakeholders have adjusted or acted as per the draft TP scheme and would be under the belief that nothing is going to change. This Court, is mindful of the fact that preparation of the preliminary TP scheme is a herculean task but, at the same time, it does not mean that the finalization is prolonged for almost 16 years. Perceptibly, after 16 Page 98 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined years, the Town Planning Officer came into action and started issuing notices to the land owners inviting objections and suggestions in connection with the tentative reconstitution of the plots. Decision was followed which, is the subject matter of challenge in the captioned writ petition. In the case on hand, the grievances, raised and recorded in the preceding paragraphs, are of allotting separate final plots; reconsidering the decision of laying down of 24 meter, 30 meter and 18 meter of roads; allotting the plots at one place instead of scattered location; shifting of the alignment of 12 meter road, so on and so forth.
51. Keeping the scope of inquiry in the forefront, it is necessary to examine the nature of the powers exercised by the Town Planning Officer and the decision rendered and duly communicated to the petitioners in accordance with Rule 26 of the Rules of 1979. Rule 26 has been discussed in the preceding paragraph. The provisions are elaborated in the following terms:-
i. Sub-rule (1) of Rule 26 speaks about the notice in Form H of the date on which the Town Planning Officer shall commence his duties and other aspects as contained therein.
ii. The Town Planning Officer, before proceeding to deal with the matters specified in section 52 publish a notice in Form H as indicated therein and shall specify the matters which are proposed to be decided by him and require all the persons interested in the plots or are affected shall communicate in writing their objections to the Town Planning Officer within 20 days.
iii. Sub-rule (4) speaks about the sufficient opportunity of stating the views to the persons interested with a rider that the Town Page 99 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Planning Officer shall not give any decision till he has duly considered their representation.
iv. In the event there are conflicting claims or any difference of opinion with regard to any part of the scheme, it is a duty cast upon the Town Planning Officer to record a brief minute in his own hand, setting out the points at issue and necessary particulars and then shall give a decision with the reasons therefor.
v. Sub-rule (6) obligates the Town Planning Officer to record and enter in the scheme every decision given by him.
vi. The scheme drawn by the Town Planning Officer shall include the particulars specified in Rule 21 read with section 52.
vii. Sub-rule (9) requires the Town Planning Officer to publish the scheme drawn up by him by notification in the official gazette in Form I and by other means as indicated therein. The scheme shall be open for the inspection of the public during the office hours.
viii. The next stage is communication of the decision taken by him in respect of each plot to the owner or person interested by the issue of requisite extract from the scheme in Form J and Form K. ix. Therefore, sub-rule (5) states about the decision by the Town Planning Officer. Sub-rules (6), (7) and (8) are the steps to be taken by the Town Planning Officer with regard to the decision taken. Sub- rule (9) speaks about communication of the decision taken by him by issuing requisite extract from the scheme in Form J and Form K. Therefore, the Town Planning Officer is to notify the requisite extract from the scheme in the respective forms.Page 100 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
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52. For the above purpose, it is apposite to take a birds eye view of the procedure followed and notices issued to the petitioners in all the writ petitions and responses, as the same warrants consideration:
Re: Notice issued by the Town Planning Officer to the land owners inviting objections and suggestions Sr. Writ petition number Date of the Notice Date of Response by the No. petitioner 1 SCA no.21780 of 2022 28.03.2005 - pg. 363 of 15.04.2005 - petitioner the writ petition remained present 2 SCA no.19030 of 2022 28.03.2005 - pg. 316 of -
the writ petition 3 SCA no.22104 of 2022 28.03.2005 - pg. 835 of -
the writ petition 4 SCA no.22693 of 2022 28.03.2005 - pgs. 182 & Representation dated 184 of the writ petition 17.06.2005 5 SCA no.24962 of 2022 28.03.2005 - pgs. 49 & -
85 of the writ petition Re: Notice issued to the land owners inviting objections & suggestions with respect to tentative reconstitution of the plots Sr. Writ petition Date of the Notice Objection/s by the No. number petitioner/s 1 SCA no.21780 of 10.08.2021 - pg. 174 objections by the 2022 pgs.167/365 in the writ Power of Attorney of the petition petitioner Page 101 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 2 SCA no.19030 of 10.08.2021 - Pgs. 140, 145, 147, 151, 2022 pgs.134/318 in the writ 155, 157, 159, 160 petition objections by the petitioner
- Mr Pourus R. Mehta 3 SCA no.22104 of 10.08.2021 - pg. 133 objections by the 2022 pgs.131/837 in the writ petitioners petition 4 SCA no.22693 of (i) 09.08.2021 - pg.44/187 -
2022 in the writ petition
(ii) 09.08.2021 - pg.46/189 pg. 48, 56, 58, 59,
in the writ petition objections by the petitioner
(iii) 09.08.2021 - pg.191 in pg. 65 objections by the
the writ petition petitioner
5 SCA no.24962 of (i) 09.08.2021 - pg.53/87 in pg. 56 objections by the
2022 the writ petition petitioners
(ii) 09.08.2021 - pg.89 in pg. 56 objections by the
the writ petition petitioners
(iii) 09.08.2021 - pg.91 in pg. 56 objections by the
the writ petition petitioners
Re: Public Notice in the local newspaper to the land owners inviting objections and suggestions with respect to tentative reconstitution Sr. Writ petition number Date of the Notice No. 1 SCA no.21780 of 2022 14.09.2021 - pg. 371 of the writ petition Page 102 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 2 SCA no.19030 of 2022 14.09.2021 - pg. 324 of the writ petition 3 SCA no.22104 of 2022 14.09.2021 - pg. 841 of the writ petition 4 SCA no.22693 of 2022 14.09.2021 - pg. 203 of the writ petition 5 SCA no.24962 of 2022 14.09.2021 - pg. 98 of the writ petition Re: Individual notices to the land owners inviting objections and suggestions before declaration of decision Sr. Writ petition Date of the Notice Objection/s by the petitioner/ No. number s 1 SCA no.21780 of (i) 07.09.2022 - pg. 369 of pg. 225 objections by the 2022 the writ petition petitioner
(ii) 28.09.2022 - pg. 229/370 pg. 230 letter by the of the writ petition petitioner 2 SCA no.19030 of (i) 07.09.2022 - pg. 296/322 pg. 297 letter/objection by 2022 of the writ petition the petitioner
(ii) 28.09.2022 - pg. 323 of -
the writ petition 3 SCA no.22104 of (i) 07.09.2022 - pg. 839 of -
2022 the writ petition
(ii) 28.09.2022 - pg. 840 of -
the writ petition
4 SCA no.22693 of (i) 07.09.2022 - pg. 123, pg. 125, 128 letter/objection
2022 126/197 of the writ by the petitioner
petition
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(ii) 28.09.2022 - pg. 129/199, pg. 131, 134 letter/objection 130/200 of the writ by the petitioner petition 5 SCA no.24962 of (i) 07.09.2022 - pg. 65/93 of -
2022 the writ petition
(ii) 28.09.2022 - pg. 95, 96 of -
the writ petition
Re: The following are the details of the steps taken, namely, (i) Notification of declaration of decision published in newspaper; (ii) Decision of the Town Planning Officer communicated to the land owner in prescribed Form 'J'; (iii) Notification of the decision declared by the Town Planning Officer and published in the Official Gazette after the decision dated 27.10.2022 of the Town Planning Officer under Rule 26(9) of the Rules of 1979.
Sr. Dates Particulars
No.
1 27.10.2022 The Town Planning Officer has declared its
decision
2 29.10.2022 and The Notification of declaration of decision was
published in newspapers
01.11.2022
3 03.11.2022 and The decisions of the Town Planning Officer were
04.11.2022 communicated to the land owners in the
prescribed Form 'J'
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4 11.11.2022 Notification of the decision declared by the Town
Planning Officer was published in the Official Gazette
53. Therefore, notices have been issued to the petitioners stage wise and the objections by the petitioners. In continuation of the above, the issues referred to in the paragraph 18, are dealt with hereinbelow petition-wise.
(i) Special Civil Application no.21780 of 2022
54. One of the grievances raised by the petitioners is that in the draft TP scheme, the petitioners were allotted separately earmarked plots and of which, there was no objection and hence, the Town Planning Officer while framing the preliminary TP scheme, ought not to have combined the plots with no demarcation or boundaries specified, as the Town Planning Officer is under an obligation to draw preliminary TP scheme in terms of draft TP scheme.
55. It is not in dispute that survey no.298, is possessed by various plot holders and was totally admeasuring 27,417 sq. mtrs. and out of total area, 787 sq. mtrs. of land belong to the State Government by virtue of the ULC proceedings and another 3,360 sq. mtrs. land is acquired by the Corporation and of which, there are separate entries reflected in the village form no.7. Remaining area, would be 23,271 sq. mtrs. The record reveals that remaining area is of the private ownership with 10 account holders and land holding of the Corporation. If one considers the submission of the individual account holders, as per the village form no.7, the total area would be 27,986 sq. mtrs. which accedes by 572 sq. mtrs. which also, has Page 105 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined remained undisputed.
56. The draft TP scheme was sanctioned on 16.09.2004 and in the year 2005, the issue of Hissa Mapni was raised. It is surprising to note that after the year 2005, for almost 16 years, no steps were taken. Everything triggered somewhere in the year 2021, when the notices came to be issued to the land holders. The representations were filed. The process, continued thereafter. Notices and the response continued. Ultimately, in the month of October 2022, Town Planning Officer took the decision whereby, the plots were combined and one final plot, was allotted.
57. It is not in dispute that there are no separate 7/12 forms issued and the names of the plot holders continued to be reflected in the common 7/12 forms. The Town Planning Officer has given its decision on 27.10.2022, inter alia, observing that as per the 7/12 form, 787 sq. mtrs. of original plot no.58/3 is a ULC land of the State Government. Another 3,360 sq. mtrs., original plot no.58/1 has been acquired by the Corporation and rest of the land admeasuring 23,271 sq. mtrs., is of the joint ownership. The Town Planning Officer, has stated that there is no measurement undertaken or Hissa Form produced and hence, no separate final plots are allotted. One of the notes suggest that right of the land holders, would be proportionate to their rights in the revenue record.
58. The decision taken by the Town Planning Officer has been placed on the record by way of a compilation. During the course of the hearing, the learned counsel for the petitioners have made submissions dealing with the decision of the Town Planning Officer. The decision records the aspects, namely, (i) the stage of Page 106 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined sanctioning of the draft TP scheme (ii) steps taken after the draft TP scheme was sanctioned, (iii) the stage of receiving the objections from the petitioners (iv) the stage of tentative reconstitution of the preliminary TP scheme and the objections received pursuant thereto, (v) the proposal before the decision of the preliminary TP scheme; (vi) the stage of consultation, (vii) stage of objections received from the petitioners and stakeholders and lastly, (viii) the final decision of the Town Planning Officer. The Town Planning Officer, in paragraph 1, refers to the ULC land to an extent of 787 sq. mtrs., O.P. 58/3 and land admeasuring 3360 sq. mtrs. O.P. 58/1 reserved for the Corporation and for remaining 23271 sq. mtrs. original plot allotted is 58/2 jointly. Reference is also made by the Town Planning Officer, regarding Hissa Mapni so also non-production of Hissa Form no.11. The Town Planning Officer, has taken a decision that in absence of any Hissa Mapni, separate final plots have not been allotted. After the decision is taken, obligation of the Town Planning Officer, as per sub-rule (9) of Rule 26 of the Rules of 1979 is to communicate the requisite extracts in Form "J". The decision of the Town Planning Officer was communicated to the land owners in the prescribed Form "J". Followed was the notification of declaration published in the newspaper on 29.10.2022 and 01.11.2022. The notification of the decision declared by the Town Planning Officer was published in the Official Gazette. Undisputedly, the decision taken by the Town Planning Officer and communication of the requisite extracts of the decision in Form "J" are very much in place in terms of Rule 26 of the Rules of 1979.
59. As stated hereinabove, the grievance is raised that the petitioners were not offered sufficient opportunity; moreover, the objections of the petitioners have not been considered by the Town Planning Officer, showing undue haste while taking a decision. In the Page 107 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined opinion of this Court, it is not that the petitioners were not aware about the proceedings before the Town Planning Officer. The notices issued and the responses suggest that sufficient opportunity was provided to the petitioners to state their views which were done, followed by the decision. Therefore, it is not correct on the part of the petitioners to argue that the Town Planning Officer has not adhered to the Rules or that there is non-compliance of the principles of natural justice.
(ii) Special Civil Application no.19030 of 2022
60. In past, the petitioner was issued notice under section 68 of the Act of 1976 read with Rule 33 of the Rules of 1979 and the petitioner, has approached this Court, by preferring writ petition being Special Civil Application no.1231 of 2008. The petition was disposed of as withdrawn with a liberty to the petitioner to raise objections before the Town Planning Officer and the Town Planning Officer, was directed to consider the same at the time of preparation of the preliminary TP scheme. The petitioner raised an objection with a request to give at least an access of 7.5 meter road and 6.7 percent area of survey no.298 as road area and then to deduct balance from the holdings. Similar such representations were made thereafter, requesting for personal hearing. The petitioner has filed the objection on 01.09.2021, raising the grievance against clubbing of final plot nos.58/2, 58/3, 58/4, 58/5, 58/6 and the narrow approach to the house of the petitioner. The grievance of the petitioner was against the access given to plot no.58/3, as it already has access from proposed 24 meter TP road and newly proposed 12 meter TP road. Objection was also raised against 24 meter road proposed near the plot of the petitioner. Representations were also made to the Town Planning Officer so also the State Government at Page 108 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined the highest level.
61. On 29.11.2021, the Town Planning Officer informed the petitioner that separate plots cannot be allotted in absence of Hissa Form no.11A and Hissa Mapni. It is only after the said forms or measurement is provided, that separate plots can be allotted. The grievance raised in the petition is also to provide for sufficiently wide road leading to the residence of the petitioner. On 14.09.2021, another public notice was issued inviting objections/suggestions from the land owners with respect to tentative reconstitution; followed by individual notices on 07.09.2022 and 28.09.2022. In response to the notice dated 28.09.2022, Mr Pourus R. Mehta, inter alia, has suggested for 7.5 meter road and to allot separate final plots; and Mr Rushad Ginwala has also put his signature and has given the consent with respect to final plot no.58/1. The petitioner in his representation dated 11.11.2022, was clamouring for the access to his house from a TP road so also, objecting to the clubbing of the final plots.
62. Notably, in past, the petitioner, has filed the writ petition which was disposed of by this Court vide order dated 16.12.2009 apropos which, the petitioner, has filed the representation dated 24.12.2009 wherein, the petitioner has made the request in the following terms:
"Besides in the entire T.P. there is no road so narrow as to be only 5 meters. As per GDCR of Ahmedabad Development Area, in the road line is upto 150 meter the width of the road for residential use has to be 7.5 meter as prescribed under 10.4 of the GDCR. Hence my plot should have a minimum access of 7.5 meter."Page 109 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined In the penultimate paragraph, the petitioner, has stated thus:
"I therefore request you to kindly ensure that the margins of my house are not cut in any way & I am given access of at least 7.5 meters as per rules laid down in the GDCR. Further please consider the 6.7% area of S.No.298 as road area and then deduct balance from our holding. This objection regarding deduction of road area has been raised by other subplot holders also from time to time but no response was received from your office."
The grievance of the petitioner of providing sufficiently wide road leading to his residence, does not merit acceptance, because the same is taken care by providing 7.5 meter road. So far as the grievance of allotting separate final plot is concerned, in absence of Hissa Form and/or Hissa Mapni, the Town Planning Officer, has requested the petitioner and other plot holders to get the needful done as per the provisions of the Rules of 1972. The aspect of Hissa Mapni is discussed in detail hereinafter.
Re: Hissa Mapni.
63. The issue of Hissa Mapni has also been raised, and is common in connection with land in question, contending that the Town Planning Officer ought not to have raised the issue inasmuch as, there is no provision which requires submission of Hissa Mapni. The contention, does not deserve to be accepted considering the discussion hereinafter. Pertinently, in the notice issued on 28.03.2005, one of the petitioners Mr Pourus R. Mehta on 15.04.2005, has raised objection stating that the Town Planning Officer wants the Hissa Mapni by DILR which he has tried to get but, the DILR, had not done the survey of survey no.298 because of the Page 110 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined objection by Mr B.R. Mehta. Clearly, in the year 2005, the issue of Hissa Mapni was raised and in the hearing which took place on 15.04.2005, petitioner has lodged the objection and it reads thus:
"I have submitted my objection in writing dated 15.04.2005 regarding the problems in the TP Scheme (FP 58/4 and 58/5). The Town Planning Officer wants Hissa Mapni of DLR which he had tried to get down. But DLR had not done survey of E1 of 298 because of objection by B.R. Mehta P.R. Mehta - 15.4.2005"
Therefore, the petitioners were aware about the same since the year 2005 and did not take any steps in the interregnum. Now, to raise a contention that such an objection ought not to have been raised by the Town Planning Officer and if at all it is raised, it should be resolved by exercising the powers under section 46 of the Act of 1976, is erroneous.
64. Furthermore, the notice was issued on 10.08.2021 wherein, on 17.08.2021, endorsement has been put by one of the petitioners Mr B.R. Mehta to the following effect:
"Recd. combined copy no.1978 dt. 10/8/2021 with objection and under protest. Please issue fresh notice with proper details. Names and details are not correct.
Signed B.R. Mehta 17/8/2021"
65. Objections were also filed on behalf of Manoj R. Shah through his Power of Attorney, Ms Seema Parimoo Mehta. Resistance was against the demand of Hissa Mapni by the Town Planning Officer, Page 111 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined with further request to visit the site and issue notice for hearing. After the notice was issued by the Town Planning Officer on 10.08.2021, as many as six representations were filed by the Power of Attorney of Manoj R. Shah to the Town Planning Officer and two representations to the State Government at highest level. Objection is raised against the laying down of the 24 meter road and reduction in the plot area as well.
66. Contention is raised that the powers could have been exercised under section 46 by resolving the issue of demarcation etc. Section 46, concerns the disputed ownership, but the fact remains that the issue involved in the present writ petition is not of any disputed ownership, but the boundaries. The names of all the plot holders are reflected in the common 7/12 form jointly and there is no separate 7/12 forms issued in favour of the plot holders and the petitioners. When the issue is regarding boundaries, the entitlement and the discrepancy in the revenue record vis-a-vis the District Survey Office Record, the Town Planning Officer requested the petitioners to provide the Hissa Mapni, i.e. measurement as per their share which provision finds place in the Rules of 1972 and more particularly, Rule 21, which speaks about laying down of the boundaries and it reads thus:-
"21. Boundaries to be laid down : (1) When there is no dispute the boundary of each sub-division shall be laid down according to the statement of the holders.
(2) Where there is any dispute, the boundary to which the dispute relates shall be measured and mapped in accordance with the claims of both disputants, and the dispute entered in the register of disputed cases. After the dispute has been settled under sections 37 and 119-120, or Rule 108, as the case may be, the map shall be corrected accordingly and the areas finally entered into the land records."Page 112 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025
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67. In absence of any clarity about the boundaries, the same is to be measured and mapped in accordance with the claims of the disputants.
68. In the year 2021, various communications and objections have been lodged by the petitioners justifying respective holdings. Even, time was prayed for to get the Hissa Mapni done. From the year 2021 till October 2022 until the Town Planning Officer took the decision, the petitioners were unable to procure the Hissa Mapni and possibly, there were objections raised and/or lodged by some of the plot holders. Perceptibly, during the pendency of writ petition, this Court, on 29.11.2022, passed an order directing the DILR to consider the application dated 14.07.2022 made to the Collector and Deputy Collector and to undertake Hissa Mapni in respect of the plot of survey no.298. Relevant extracts of the order dated 29.11.2022 are reproduced herein below:
"....In the meantime, the DLIR is directed to consider the application dated 14.07.2022 made to the Collector and Deputy Collector and undertake Hissa Mapni in respect of plots in survey No.298, Hanson, Taluka Asarwa, Ahmedabad on payment of the prescribed requisite fees. The said Hissa Mapni will be filed along with the affidavit-in-reply of respondent Nos.1 to 3. The report of Hissa Mapni shall be submitted to the concerned authority before 15th December 2022...."
69. Thereafter, the office of the DILR undertook the procedure; however, was unable to complete the formality in view of the reservation shown by one of the plot holders. The DILR has filed its reply explaining the procedure and the difficulties faced during the process of Hissa Mapni. The relevant paragraphs of the affidavit-in- reply of the DILR in Special Civil Application no.22104 of 2022 are reproduced hereinbelow:
"6. Since, in the month of August, 2020, all measurement applications are received online, accordingly the District Inspector of Land Records (DILR) vide communication dated Page 113 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 30.07.2022 informed the petitioner to prefer an online application. It is pertinent to note that with respect to survey no. 298 there is a discrepancy in the total area of land as reflected in the revenue records based on sale deeds entered into Village Form No. 7 and the District Survey Office (DSO) record. The total area of Survey No. 298 as per the petitioners in their respective Khata Numbers in terms of their respective holding based upon sale deeds entered into between the parties comes to 27986 Sq. Mtrs. whereas as per the original revenue records and District Survey Office (DSO) records, the total area of Survey No. 298 is 27417 Sq. Mtrs. As there is a discrepancy in the revenue records vis-à-vis the District Survey Officer (DSO) records an online application for "Hissa Mapni" could not be accepted on the online portal.
7. It is further stated that as the online application could not be processed due to discrepancy in order to comply with the order passed by this Hon'ble Court vide order dated 22.11.2022, a physical application for carrying out "Hissa Mapni" was also entertained. Copy of communication dated 30.07.2022 addressed by the District Inspector of Land Records (DILR) to the petitioner is annexed hereto and marked as ANNEXURE-FA3.
8. On 15.12.2022, one Poras R. Mehta petitioner in Special Civil Application No. 19030 of 2022 produced a challan to carry out "Hissa Mapni" for Survey No. 298 at Hansol, Taluka: Asarwa, Ahmedabad. Copy of the challan dated 15.12.2022 is annexed hereto and marked as ANNEXURE-FA4.
9. Thereafter, vide communication dated 27.12.2022 issued by District Inspector of Land Records (DILR), all the land holders of Revenue Survey No. 298 were informed with regard to the exercise to be carried out on 30.12.2022 at 11.00 a.m. in terms of the directions issued by this Hon'ble Court. Copy of the communication dated 27.12.2022 is annexed hereto and marked as ANNEXURE-FA5.
10. Accordingly on the said date, the authorities' remained present and necessary measurements were duly carried out. Annexed hereto and marked as ANNEXURE-FA6 is the copy of the map along with Rojkam dated 30.12.2022 drawn by the District Inspector of Land Records (DILR), pursuant to the physical measurement carried out in terms of the order passed by this Hon'ble Court.
12. Accordingly the measurement was carried out in the presence of all concerned, the Rojakam evidencing the same was duly signed by all present. The District Inspector of Land Records (DILR) has accordingly carried out "Paiki Mapni".
However, Form No. 11 and plot book of the sub plots in Revenue Page 114 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Survey No. 298, Hansol, Ahmedabad cannot be issued for the following reasons:-
i. There appears to be a discrepancy to the extent of 569 Sq. Mtrs. in the District Survey Office (DSO) record and the Revenue Record. The Revenue Record shows an additional holding of 569 Sq. Mtrs. whereas the District Survey Office (DSO) record reflects 27417 Sq. Mtrs. and the Revenue Record reflects 27986 Sq. Mtrs. There is an discrepancy with respect to 569 Sq. Mtrs. in the revenue record which needs to be reconciled.
ii. Amongst the joint holders, there also appears to be a discrepancy, with regard to the internal, holdings and the joint holders were unable to arrive at an amicable solution to enable the District Inspector of Land Records (DILR) to allot sub plots based on mutual consent. Had all the joint holders given an affidavit duly signed by all concerned mutually agreeing to the boundaries of their respective plots aligning with the District Survey Office (DSO) records, the District Inspector of Land Records (DILR) would have issued separate "Hissa" or separate plots to each of the land owners. As there appears to be dispute between the joint plot holders, the same needs to be resolved in terms of the procedure laid down under Rule 21(2) of the Gujarat Land Revenue Rules, 1972 to the Deputy Collector. For ready reference of this Hon'ble Court, Rule 21 of the Gujarat Land Revenue Rules, 1972 is reproduced hereunder:-
"21. Boundaries to be laid down:-
(1) When there is no dispute the boundary of each sub-
division shall be laid down according to the statement of the holders.
(2) Where there is any dispute, the boundary to which the dispute relates shall be measured and mapped in accordance with the claims of both disputants, and the dispute entered in the register of disputed cases. After the dispute has been settled under sections 37 and 119- 120, or Rule 108, as the case may be, the map shall be corrected accordingly and the areas finally entered into the land records."
iii. The procedure prescribed under the Gujarat Land Measurement Rules is that on an application by joint holders duly accompanied by a duly affirmed joint affidavit by all the joint holders clearly stating the measurements of their individual land holdings. Thereafter, the Surveyor shall visit the site and measure the actual possession of land held by the co-owners Page 115 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined individually and sends a report to the DILR. If there is no discrepancy and dispute with respect to the measurements and the same are in consonance with the revenue records. The DILR shall give approval for the Hissa Mapni and issue plot book and Hissa Form No. 11.
iv. In the facts of the present case, it is not possible to issue plot book and Hissa Form No. 11 separately for each of the holders in Revenue Survey No. 298 which is of the joint ownership of 13 persons as there are differences in the physical possession, disputes amongst the members and also discrepancies between the revenue records and the District Survey Office (DSO).
13. The petitioners in this regard vide communication dated 03.02.2023 was informed that there is a discrepancy with regard to the land possessed by each of the co-owners and the area of land has reflected in the revenue record. The petitioners were also informed that in terms of Rule 21(2) of the Gujarat Land Revenue Rules, 1972, the petitioner may approach the Competent Deputy Collector for further proceedings. Copy of the communication dated 03.02.2023 addressed by the District Inspector of Land Records (DILR) to the petitioner is annexed hereto and marked as ANNEXURE-FA7.
14. In this regard, the attention of this Hon'ble Court is drawn to a communication dated 03.03.2023 addressed by the City Deputy Collector to the District Inspector of Land Records (DILR) wherein the case of the petitioner sent back in order to rectify the revenue records under Rule 21(2) of the Gujarat Land Revenue Rules, 1972. Copy of the communication dated 03.03.2023 addressed by the City Deputy Collector to the District Inspector of Land Records (DILR) is annexed hereto and marked as ANNEXURE-FA8.
15. The petitioner vide communication dated 10.03.2023 was informed that as there was discrepancy in the area of land possessed by each of the co-owners, the case of the petitioner has been referred by the District Inspector of Land Records (DILR) to the Competent Deputy Collector. Copy of the communication dated 10.03.2023 addressed by the District Inspector of Land Records (DILR) to the petitioner is annexed hereto and marked as ANNEXURE-FA9.
16.Vide communication dated 12.07.2023, the District Inspector of Land Records (DILR) has informed the City Deputy Collector that as there is a dispute with regard to the area possessed by each of the co-owners, the powers to resolve the dispute vests with the Deputy Collector and the case is now again sent back to the office of the City Deputy Collector. Copy of the communication dated 12.07.2023, the District Inspector of Land Page 116 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Records (DILR) has informed the City Deputy Collector is annexed hereto and marked as ANNEXURE-FA10.
17. An light of above peculiar facts and circumstances, it is clear that there is a major dispute amongst the co-owners of Survey No. 298 with regard to the possession of land. It appears that even the revenue records reflect that there is an encroachment of the petitioner as the land shown in the revenue records is less than the actual land possessed by the petitioner. Therefore, unless and until the area of land shown in the District Survey Office Record is equivalent to the area of land possessed by the petitioner and shown in the revenue records, the "Hissa Mapni"
of the land in question cannot be carried out. Moreover, there appears to be encroachment even within the land possessed by the co-owner and the petitioners are required to approach the Competent Deputy Collector under Rule 21(2) of the Gujarat Land Revenue Rules, 1972."
70. According to the affidavit of the DILR, as per the District Survey Office records, revenue survey no.298 was totally measuring 27417 sq. mtrs.; whereas, the total area as per the petitioners in respect to khata numbers in terms of the respective holding based upon sale deeds entered into between the parties comes to 27986 sq. mtrs. Considering the discrepancy in the revenue record vis-à-vis the District Survey Office record, online application was not accepted, but the physical application was accepted pursuant to the order dated 29.11.2022. Application dated 15.12.2022 was filed by the petitioners of Special Civil Application no.19030 of 2022, which was processed and on 27.12.2022, the office of the DILR issued a communication to all the land holders about the exercise to be carried out of Hissa Mapni on 30.12.2022. Accordingly, Rojkam was drawn dated 30.12.2022. Pursuant to the physical measurement carried out, Ms Seema Parimoo Mehta, Mr Kamal Ginwala for Mr Kamal Ginwala, Mr B.R. Mehta and one another signed the Rojkam. Clearly, Seema Parimoo Mehta did not accept the DILR map dated 01.07.2003 and similarly, another endorsement by one of the signatories was that it is without prejudice to their rights and contentions. All the six persons though have signed, but with a tacit Page 117 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined reservation. It is thereafter, the office of the DILR addressed a communication on 03.02.2023 stating that it is only after the necessary correction is carried out in the revenue record and with consent of the plot holders, steps shall have to be taken under sub- rule (2) of Rule 21 of the Rules of 1972. Correspondences have been exchanged between the City Deputy Collector and the office of the DILR and it appears that owing to the discrepancy in the village form no.7 vis-à-vis District Survey Office record, the matter was required to be decided by the revenue authorities in terms of sub-rule (2) of Rule 21. When till July 2023, the issue could not be resolved, the decision taken and the extract of the decision of the Town Planning Officer in terms of sub-rule (9) of Rule 21 cannot be find fault with. Even otherwise, the steps could have been taken by the petitioners from the year 2005 till October 2022, but the petitioners chose not do so. Thus, it cannot be said that the Town Planning Officer has shown undue haste in taking a decision on 27.10.2022. It is well- settled that every decision has to be examined on its own merits and the legality and validity of the decision taken cannot be decided on the touchstone of the time consumed. Merely because the decision has been taken promptly, cannot be assumed to be bad, similarly, greater length of time consumed in taking a decision would not make the decision good.
71. Besides, the Town Planning Officer, has indicated in the re- distribution form that the rights and shares of the land owners, would be proportionate to the rights and shares in the original plot and if the petitioners are desirous of getting the shares determined, the Committee constituted pursuant to the provisions of sub-section (2) of section 67A of the Act of 1971 can be taken recourse of. Therefore, it is not that the petitioners have no remedy and the grievance cannot be taken care of. Stand is also taken by the State Page 118 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Government that the grievance of the petitioners can very well be considered, upon their making representation to the State Government. Two avenues are still available to the petitioners to ventilate their grievances, one under the provisions of section 67A and another as declared by learned Additional Advocate General Ms Manisha L. Shah on behalf of the State Government and Mr Prashant G. Desai, learned senior counsel for the Corporation, before the State Government, while finalizing the preliminary TP scheme.
72. In the context of allotting the combined plot, it is sought to be argued that the Town Planning Officer could not have gone beyond the draft TP scheme. To substantiate, reference is made to the provisions that the TP scheme has to be in terms of the draft TP scheme. Considering the decision of the Town Planning Officer the preliminary TP scheme is in terms of draft TP scheme, except the separate plots and without boundaries. Pertinently, section 52 provides for the contents of preliminary and final scheme. Sub- section (1), inter alia, gives the powers to the Town Planning Officer to define and demarcate the areas allotted to or reserved for any public purpose and the final plots, after giving notices. Sub-clause
(ii) states that in which a final plot is to be allotted to a person in ownership in common, the shares of such persons. If the submission of the petitioners is to be accepted, that the Town Planning Officer should have acted in terms of the draft TP scheme, nothing would be left for the Town Planning Officer to do, rendering the provisions of section 52, almost futile. In the case on hand, as there was no clarity and hence, the Town Planning Officer has allotted common final plot with a rider that the rights and shares of the respective owners, would be proportionate to their rights and shares in the original plot.
Page 119 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined
(iii) Special Civil Application no.22104 of 2022 (survey no.316, original nos.48/1, 48/2 (2918 sq. Mtrs.) and 48/3 (4771 sq. Mtrs.). Final plot nos.48/1 (812 sq. Mtrs.), 48/2 (1364 sq. Mtrs.), 48/3 (2712 sq. Mtrs.)( ULC land) and 48/4 (628 sq. Mtrs.) :
73. The grievance of the petitioners is that the petitioners are running the factory on survey no.316. The 12 meter road suggested earlier was deleted by the Town Planning Officer somewhere in the year 2012. It is the case of the petitioners that the Town Planning Officer to protect the premises of the petitioner shifted and diverted the said road from the petitioners' premises for which, heavy reliance is placed on the map of the tentative preliminary TP scheme dated 25.05.2021. Thereafter, consultation took place between the Town Planning Officer, the Chief Town Planner and the Corporation. Numerous representations have been filed by the petitioners and others which are annexed. In one of the representation dated 31.08.2021, the petitioner has acknowledged the acceptance of his proposal dated 16.02.2012. It reads thus:
"Sir, as per the last meeting, what I could gather is that you were kind enough to save all the constructed properties as per the proposal dated 16th February, 2012 referred hereinabove and I am really obliged and thankful to you for supporting the said proposal dated 16th February, 2012."
It is thereafter, again on 01.08.2021, the petitioner, has made a representation to the Town Planning Officer in vernacular, free english translation, would read thus:
"We have remained present before you on 31.08.2021 and we have been shown the map. In survey no.316, Sir you have given a curve to 12 meter road and as a result, the authorized Page 120 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined building of our factory has been saved. For which, we are thankful to you."
74. On 13.07.2022, the Chief Town Planner has addressed a letter to the Town Planning Officer, followed by the consultation with the Corporation dated 03.08.2022 and ultimately, the decision has been taken by the Town Planning Officer on 27.10.2022 after issuing notices which are placed on the record. The Town Planning Officer, assigned 4771 sq. Mtrs. (OP 48/3) as ULC land as per paragraph 2 of the schedule to the notification dated 16.09.2004 and remaining 2918 sq. Mtrs of land (OP 48/1 and 48/2) of the joint ownership.
75. Pertinently, the proposed 12 meter road was passing through the factory premises situated at the land bearing survey no.316 and it is not in dispute that pursuant to the representation of the petitioner and considering the consultation with the Corporation, the Town Planning Officer has shifted and realigned the proposed 12 meter road towards eastern side by 10 meters with a view to saving the regularized construction of the petitioner. The Town Planning Officer, was of the opinion that the 12 meter road was shifted accepting the consultation of the Corporation and the request of the petitioners so as to see that the water borewell is not affected. Considering the construction, 30% deduction has been effected and the remaining land has been reserved for Sale for Residential (final plot no.131). The extracts of the said decision, was communicated to the petitioners in Form "J" which is on the record. Further steps of publication etc. are not in dispute.
76. Notably, there lies a dichotomy in the submissions of the learned counsel appearing for the petitioners. While arguing for survey no.298 and allotment of common plot it is suggested that the Page 121 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined Town Planning Officer should have drawn the preliminary TP scheme in terms of the draft TP scheme. If that be so, then how the Town Planning Officer is wrong in continuing with the 12 meter road which is forming part and parcel of the draft TP scheme. Despite which, accepting the request of the petitioner, the alignment has been shifted within the permissible limit of 10 meter. One more aspect touches the issue considering the fact that in the draft TP scheme, there was a road already available and as per the provisions of section 48A of the Act of 1976, the land, shall absolutely vest in the State Government and becomes part of the Act. On this count as well the grievance of the petitioner does not merit acceptance. The issue of allotting a common plot, is as a result of the absence of Hissa Mapni/measurement which aspect, has been dealt with hereinabove.
(iv) Special Civil Application no.22693 of 2022 (Survey no.314/1, 314/2, 314/3 and 315 paiki):
77. Notices were issued by the Town Planning Officer dated 09.08.2021 with respect to survey no.314/1, 314/3, 315 which has been received on 17.08.2021. Thereafter, the Town Planning Officer has addressed a letter dated 30.11.2021, stating that the 30 meter road abutting final plot no.6/3 has been suggested by the Corporation on 25.05.2021 as per the consultation. With respect to the request of merging revenue survey no.315 in 314/3, necessary proofs were requested of ownership and the Hissa Mapni. It has been suggested that upon receipt of the documents, the steps shall be taken. Another letter was addressed on 02.12.2021 with respect to survey no.315 stating that in absence of any Hissa Mapni, separate plots have not been allotted. Followed, were the notices dated 07.09.2022, 28.09.2022 and the decision on 27.10.2022. On Page 122 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 11.10.2022, proceedings have been recorded. It has been stated that one of the land owners of revenue survey no.314/2 and 314/1 has remained present pursuant to the notice issued by the Town Planning Officer and was explained about the proposal. The land owner, has also suggested certain adjustment with respect to final plot no.6/2 and 6/3 in such a way that the land of final plot no.6/1 is adjusted in the said plots. The said proceedings, has been signed by one of the owners. One Mr Siraj Khambhata, has also remained present and was made to understand about the survey no.315. Request was made for sometime. The Town Planning Officer, took a decision and as per the decision, the petitioner has been allotted the final plots of the revenue survey nos.314/1, 314/2, 314/3 and 315. The matter, was discussed and deliberated by the Town Planning Officer and as per the instructions of the Chief Town Planner contained in paragraph 7 of the communication dated 13.07.2022, in all the cases where the original plots are of joint ownership, in absence of Hissa Form and production of measurement sheet, the final plot shall be provided jointly. Further instructions were issued that the above referred instructions shall apply uniformly to the similar cases.
78. Grievance raised is also that 30 meter TP road on the eastern side of survey no.314/3 and 18 meter TP road in revenue survey no.314/1 is arbitrary and illegal as it would affect the construction of the petitioner and existing trees. Record reveals that 30 meter road is based on the consultation of the Town Planning Officer with the Corporation dated 03.08.2022. Similarly, the reservation of social infrastructure is proposed by the Town Planning Officer in consultation with the Corporation considering the standard deduction of 30% across the scheme. The decision, has been placed on record of the Town Planning Officer with respect to survey Page 123 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined no.315. It has been stated that after considering the proposal, the Town Planning Officer, has given its decision. The decision of the Town Planning Officer was communicated in Forms "J" all dated 03.11.2022 which are forming part of the record. Under the circumstances, it is difficult to accept that the Town Planning Officer has not considered the grievance of the petitioners. To consider does not mean acceptance of the views.
(v) Special Civil Application no.24962 of 2022 (survey no.339, 340/1, 340/2, 342, 346, 349/1, 349/2 and 352 paiki):
79. The grievance of the petitioners is that at the time of preparation of the draft TP scheme, the petitioners were allotted consolidated final plots and as against the total land holding of 75672 sq. mtrs., the petitioner was allotted six final plots admeasuring 55760 sq. mtrs. Five final plots admeasuring 52811 sq. mtrs. are adjoining to each other whereas, final plot no.13/3 is allotted on the west of the cluster. It is the case of the petitioner that the decision of the Town Planning Officer is arbitrary and violative of sub-rule (4) of Rule 26 of the Rules of 1979 inasmuch as, sub-rule (4) of Rule 26 casts an obligation on the Town Planning Officer to consider and which means consideration in the form which reflects application of mind. The decision of the Town Planning Officer shows non-application of mind. As per the record and the tabulated chart reproduced herein above, suggest that the Town Planning Officer has issued individual notices to the land owners in the month of August 2021, followed by public notices in the local newspaper in the month of September 2021 and again in September 2022 individual notices to the land owners inviting suggestions and objections. The petitioners are clamoring for plots at one place in lieu of survey nos.339, 340/1, 340/2, 346, 349/1, 349/2 and 352 Page 124 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined paiki out of which, as per the map, survey nos.352 and 349 are on one side and survey nos.339, 340, 342, 346 are at different location.
The original plot no.352 was assigned final plot nos.17/1, 17/2 and 17/3 and in lieu of survey no.349, final plot allotted, was 31.
80. Upon reconstitution, the Town Planning Officer, has allotted final plots in the respective original plots and the reservation for urban forestry in one of the plots. The Town Planning Officer has allotted the final plots in the respective original plots considering the holding and ownership. In the present case, the petitioners are praying for deduction from their survey nos.340/1, 340/2 and 346 and urging for consolidated final plot in the land bearing survey nos.349/1, 349/2 and 342. Clearly, the Town Planning Officer, in consultation with the Corporation, has earmarked the reservation and in terms of the prevalent policy, allotted final plots in the respective original plots of the petitioners. Contention is raised that the petitioners, have altered their position by developing the plots allotted to them at the time of the draft TP scheme. The grievance of the petitioners is that their scattered plots may be consolidated and be given at one place. Raising a contention that the petitioners are seeking allotment of final plot in one cluster only for convenience since the petitioners have developed the final plot for residential use on the basis of the sanctioned draft TP scheme. Notably, the provisions of the Act of 1976 and more particularly, section 67 provides that the rights in the reconstituted plots gets crystallized and the land owner who is allotted final plot on reconstitution becomes the absolute owner only upon preliminary scheme coming into force as per section 67. In the case on hand, the petitioners, have been allotted final plots in their respective original plots and the reservation as per the applicable policy and hence to contend that there is no provision in the Act which requires Page 125 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined allotment of the final plot only within the original plot, is untenable. Resistance is against the reservation of the urban forestry. In the matter of town planning, it is for the authorities to take a decision where and how the reservation is to be provided which would be a matter of public interest.
81. It is sought to be argued that to consider means application of mind. Pertinently, the provisions allows the stakeholders to state their views and the Town Planning Officer, to consider the same. The petitioners are expecting the Town Planning Officer to consider and fulfill their individual expectations which, would be impermissible in view of the feasibility and the magnitude of the planning involved. The nature of dispute involved in the writ petitions is about alleged discrepancies in the boundaries and the wantings at the end of the petitioners and the petitioners seek resolution of such grievances through the Town Planning Officer, whose role is confined to decide the objections with respect to the TP scheme as per law and not to address the disputes concerning Hissa Mapni, internal roads and the understanding and agreement between the parties. The personal grievances, if any, has to be resolved at their end independently and in accordance with law.
Re: Town Planning Roads.
82. Having dealt with the individual merits, it takes this Court to the issues of TP roads as, the grievance is raised against 12 meter TP road, 24 meter TP road, 18 meter TP road and 30 meter TP road. The issue of 12 meter TP road is already discussed hereinabove.
83. So far as 24 meter TP road is concerned, it is not in dispute that it is forming part of the second sanctioned revised development Page 126 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined plan notified under section 17 on 20.12.2014. In the writ petition being Special Civil Application no.21780 of 2022, it is the stand taken by the petitioner that the petitioner has lodged the objection pursuant to the notification No. AUDA/Second Revised D.P./Publication/No.05506/2013 dated 10.06.2013 issued by the AUDA proposing 24 meter TP road at item no.206 in the Hansol area. Paragraph 3.11 in the writ petition, reads thus:
"3.11 It is submitted that with regard to the proposed road in the Development Plan / Town Planning Scheme (which was deleted on 20.02.2004, 16.09.2004 aforesaid notifications), in Survey No. 298, the petitioner on 01.08.2013, 24.05.2014, 29.10.2014 has submitted his objections and suggestions to the Notification dated 10.06.2013, issued by the AUDA, wherein vide Item No.206 the 24 Mtr. Road was proposed in Hansol Area. the petitioner do not have, the map/sheet attached to the said Notification. A copy of the Notification dated 10.06.2013 is annexed hereto and marked as Annexure-M/1. It appears that in the Revised Development Plan, sanctioned by the State Government on 20.12.2014, on the Southern side of Survey No. 298, it was provided to lay down 24-meter-wide road. However, the same was never implemented in Survey No. 298 and other places (as there are Army Ammunition Dump, Military Target Area, Butchery etc. situated on the Southern side of the petitioner's land), probably due to the serious, continuous objections raised by the Army Cantonment Defense Department, which is situated adjoining to the said proposed road which would have serious threat to the Army's sensitive installations. The communications issued in that regard by the Army Cantonment are described hereinafter. A copy of the Notification dated 20.12.2014 is annexed hereto and marked as Annexure- M/2."
In this connection, the affidavit-in-reply is filed on behalf of respondent nos.1, 2 and 3 by the Town Planning Officer & Senior Town Planner (page 296 of Special Civil Application no.22104 of 2022) stating thus:
"......Thereafter, in exercise of the powers conferred to the Ahmedabad Urban Development Authority, as per section 21 of said Act, the Ahmedabad Urban Development Authority prepare and publish Second Revised Development Plan 2021, which was submitted to the State Government for sanction under section Page 127 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined (sic.) 16 of the said Act. and it was sanctioned by Government of Gujarat by Urban Development & Urban Housing Department's Notification No.GH/V/207 of 2014/DVP/112013-4777-L, Dated 20/12/2014. The impugned "30 Mtr. wide road passing through Hansol village is proposed as "24 Mtr. wide road as per the proposal of Sanctioned Second Revised Development Plan 2021 of Ahmedabad Urban Development Authority."
84. The record reveals that the Sanctioned Second Revised Plan has remained unchallenged. Sub-section (1) of section 40 speaks about preparation of the TP scheme for the development area "regard being had to the proposals in the final development plan". Therefore, the Town Planning Officer could not have redressed the grievance as regards 24 meter road at the stage of preparing the preliminary TP scheme. In the case of M.M.P. Charitable Trust Thr' Its Managing Trustee vs. State of Gujarat Thr' Secretary & Others (supra), it has been held and observed that as per the provision of sub-section (3) of section 17 of the Act of 1976, a final development plan is binding on the Area Development Authority concerned and on all other authorities stationed in the area of development plan. It is also sought to be argued that the grievance is raised against the laying down of the 24 meter road by the Army Cantonment; however, neither the Army Cantonment is before this Court nor the issue. In absence of Army Cantonment before this Court and not a party in the captioned proceedings, it would not be prudent for this Court to express any opinion.
85. With regard to the objections concerning 18 meter and 30 meter TP roads, it is pertinent to note that the alignment of these roads has been determined upon the consultation between the Town Planning Officer and the Corporation which is essentially for ensuring proper road connectivity. Upon overall consideration of the grievances raised in relation to the TP roads, it emerges that the writ petitions uniformly challenge the proposed 24 meter, 30 meter, Page 128 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 18 meter and 12 meter TP roads on the ground that such roads are either not needed or affect the immovable properties of the petitioners. If such objections were to be considered, it would result in a scenario wherein, within the preliminary TP scheme covering area of 11,82,000 sq. mtrs., no roads would be available. Such an outcome is untenable, especially in view of the ongoing rapid development in the city and the consequential increase in vehicular traffic which, necessitates an adequate and well-planned road infrastructure.
86. In view of the above discussion, writ petition being Special Civil Application no.21780 of 2022, Special Civil Application no.19030 of 2022, Special Civil Application no.22104 of 2022, Special Civil Application no.22693 of 2022 and Special Civil Application no.24962 of 2022 are hereby dismissed. Connected civil applications, if any, stand dismissed. Interim relief, if any, stands vacated. No order as to costs.
(vi) Special Civil Application no.18142 of 2021
87. The petitioner has sought direction to implement the TP scheme. Grievance of the petitioner is that the commencement letter was issued back then in the year 2011, the petitioner has paid the requisite fees and plans have been sanctioned despite which the petitioner is unable to develop the plot in absence of access to the plot of the petitioner. The petitioner has accepted the letter in the year 2011 and now cannot turn around and challenge the same. The other grievances would not survive. In view of the dismissal of the above-referred writ petitions and vacation of the interim relief, the grievance of the petitioner in Special Civil Application no.18142 of Page 129 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025 NEUTRAL CITATION C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025 undefined 2021 for implementing the TP scheme, stands redressed and hence, no further orders are required to be passed and is accordingly disposed of.
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(SANGEETA K. VISHEN,J) : FURTHER ORDER :
1. After the pronouncement of the common CAV judgment, Mr Mihir H. Joshi and Mr Rashesh S. Sanjanwala, learned senior counsel have urged this Court to continue the interim protection which was prevailing all throughout during the pendency of the writ petitions.
2. Ms Manisha L. Shah, learned Additional Advocate General and Mr Prashant G. Desai, learned senior counsel appearing for the Corporation have vehemently opposed the request of stay by referring to the order dated 29.11.2022 passed by this Court.
3. This Court, vide order dated 21.10.2022 read with order dated 29.11.2022, has extended the protection. Considering the fact that the protection has been in currency since the order dated 21.10.2022 read with order dated 29.11.2022, this Court, deems it appropriate to continue the protection for a period of eight weeks' from today.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 130 of 130 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:37:53 IST 2025