Gujarat High Court
Shri Leuva Patel Education And ... vs The State Of Gujarat on 17 February, 2025
NEUTRAL CITATION
C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15415 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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Approved for Reporting Yes No
NO
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SHRI LEUVA PATEL EDUCATION AND CHARITABLE TRUST, JUNAGADH
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR MONAL S CHAGLANI(10240) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 17/02/2025
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Mr. Sahil Trivedi waives service of notice of rule on behalf of respondent No. 1 and learned advocate Mr. Digant Kakkad waives service of notice on behalf of respondent No. 3.
2. This petition is filed with the following prayers: -
Page 1 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined "A. That the present Writ Petition may be kindly admitted and allowed.
B. Your Lordship may be pleased to issue Writ of Mandamus and or any other kind of writ or any other order or direction which this Hon'ble Court deems fit, whereby Respondents are denied to take the possession of "Neighborhood Center" in Final Plot No. 114 in Junagadh City admeasuring 3543 sq. meters from total plot admeasuring 25105 sq. meters, in name of Implementation of Town Planning Scheme I, Junagadh as Neighborhood Center along with other adjacent land is sold by Res. no. 1 through Res. no. 4 to Petitoenr subsequent to Declaration of Preliminary Scheme. Further the notices vide Ann. G & H by Res. No. 3 may be kindly quashed and set aside.
Alternatively If Your Lordship hold that Respondents are entitled to take possession of Neighborhood Center in Final Plot No. 114 in Junagadh City then Petitioner may be compensated and may be kindly allowed damages from Respondents for unauthorized sale and / or acquisition for Reservation of Property, at the rate and terms which this Hon'ble Court deems just and reasonable C. Pending the admission and final disposal of the present Writ Petition, all parties may be kindly directed to maintain status quo qua the Neighborhood Center admeasuring 3543 sq. meters in Final Plot No. 114 in Junagadh City."
3. The brief facts referred in the petition are as under: -
The petitioner herein is a public trust, registered as Public Trust No. E-962. The petitioner - Trust is acting under parent Public Trust-Shri Patel Vidhyarti Ashram, Junagadh, Page 2 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined having registration No. A-301. The petitioner - Trust through its parent Trust got right, title and interest in the property bearing Revenue Survey No. 268 paiki admeasuring 5.75 acres (at present City Survey No. 4073 admeasuring 23105 sq. meters in Block No. 32 of Sheet No. 61) (hereinafter referred to as 'property in question'). The said ownership is by registered sale deed in favour of petitioner and therefore ownership of the property in question with petitioner - Trust is not in dispute.
3.1 Shri Patel Vidhyarti Ashram, Junagadh which is parent Trust was tenant of the property in question from the year 1949 to 1992. The parent Trust was regularly paying rent to respondent No. 1 through respondent No. 4. Thereafter, pursuant to notification dated 10.02.1992, the property in question was sold by the respondent- State to Shri Patel Vidhyarti Ashram, Junagadh on condition that the property in question will be used for educational purpose without discrimination of class, religion, creed and caste. Accordingly, a registered sale deed dated 11.06.1992 was executed in favour of parent Trust of the petitioner and thereafter the petitioner -
Trust became the absolute owner of the property in question. A mutation entry No. 5143 in Form No. 6 w.e.f. 17.10.1994, supports the ownership of the parent- trust over the property in question. Upon getting ownership of the property in Page 3 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined question, the petitioner - Trust sought for permission for construction of School from the respondent authority and at present the School is in existence where thousands of students are pursuing their education.
3.4 It is case of the petitioner that since the predecessor in title (the parent Trust) was tenant of the State of Gujarat at the time of sanctioning of the scheme in the year 1981, the parent Trust was informed about the sanctioning of Preliminary Town Planning Scheme. The said Town Planning Scheme No.1, Junagadh was published on 24.11.1981 and objections were invited on 08.12.1981. Pursuant to the publication of Town Planning Scheme out of area of 23105 sq. meters of land, 3543 sq. meters of land was ordered to be kept reserved for 'Neighborhood Center' in Final Plot No. 114 by communication dated 29.10.1985.
3.5 It is the further case of petitioner that after reservation of plot in the year 1985, Final Plot No. 114 including the plot reserved for 'Neighborhood Center' (pursuant to town planning scheme) was sold by State of Gujarat to the petitioner, on payment of consideration. Thereafter, after 4 decades from publication of Town Planning Scheme in the year 1985 and upon finalization of Town Planning Scheme in the year 1995, respondent No. 3 - Municipal Corporation issued a notice for Page 4 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined implementation of Town Planning Scheme No.-1, Junagadh on 21.12.2022. It was stated in the communication dated 21.12.2022 (Annexure-G Page No. 61) that petitioner - Trust is in illegal possession of Final Plot No. 114 and construction made is unauthorised. Seven days' time was given to remove unauthorised construction. Aggrieved by the communication dated 21.12.2022, the petitioner preferred representation. Ignoring the representation, demolition activity was indicated and hence this petition is filed.
3.6 This Court considering the submission that prior to notices dated 21.12.2022 and 01.02.2023, opportunity of raising objections was not provided to the petitioner, issued Notice on 29.10.2024. Thereafter, by an order dated 20.01.2025 status quo was directed to be maintained till next date of hearing.
4. Heard learned senior advocate Mr. Mehul Shah assisted by learned advocate Mr. Monal Chaglani for the petitioner and learned Assistant Government Pleader Mr. Sahil Trivedi for respondent No. 1 and learned advocate Mr. Digant Kakkad for respondent No. 3 - Junagadh Municipal Corporation.
5. Learned senior advocate Mr. Mehul Shah for the petitioner submitted that the order dated 21.12.2022 Page 5 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined (Annexure-G Page No. 61) and notice dated 01.02.2023 (Annexure-H Page No. 62) are bad in law and deserve to be quashed and set aside, because ownership of property in question with the petitioner is not in dispute. Moreover, from the Sale Deed at Annexure-B, it is evident that the property in question was sold by State Government to the parent - Trust on condition to use the property for educational purpose. Accordingly, the petitioner constructed school after getting development permission. Therefore, in absence of any breach of conditions, notices directing removal of construction is contrary to the conditions referred in the Sale Deed and is required to be quashed and set aside.
5.1 Learned senior advocate further submitted that no activity other than education is carried out by the petitioner and therefore also the notices deserve to be quashed and set aside. The notices are nothing but abuse of process of law.
5.2 Learned senior advocate for the petitioner submitted that the property in question was sold to parent Trust upon payment of full consideration. The payment was made for the entire land of 23105 sq. meters. When the entire consideration has been paid by the parent Trust, portion of land of 3543 sq. meters, keeping it reserved for 'Neighborhood Center' is contrary to the sale deed and therefore also the order deserves Page 6 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined to be quashed and set aside. Moreover, none of the condition of the sale deed has been violated and therefore the communications dated 21.12.2022 and 01.02.2023 deserve to be quashed and set aside.
5.3 Learned senior advocate for the petitioner submitted that the procedure contemplated under Section 29(2) of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the Act, 1976') is not followed and therefore also the order deserves to be quashed and set aside. Learned senior advocate thus submitted that pursuant to the Town Planning Scheme the Final Plot No. 114 reserved for 'Neighborhood Center' being contrary to the sale deed, this condition deserves to be quashed and set aside. The notice dated 01.02.2023 also deserves to be quashed and set aside. In a nutshell, learned senior advocate for the petitioner submitted that the action of the respondent authorities directing the petitioner to keep the plot reserved for 'Neighborhood Center' is illegal, because when the petitioner had purchased the property after payment of full consideration from the State Government, it is not expected of the Municipal Corporation to issue such notice. Therefore, appropriate directions may be issued to the Respondent-Corporation to pay the compensation.
5.4 In support of his submissions, learned senior advocate Page 7 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined relied upon the decision of the this Court in the case of Keshavji Devji Patel and Ors Vs. State of Gujarat and Ors reported in (2007) 1 GLR 297 and in the case of Kolkata Municipal Corporation and Ors Vs. Bimal Kumar Shah and Ors reported in AIR 2024 SC 2819.
6. This petition is strenuously opposed by learned advocate Mr. Digant Kakkad for respondent No. 3 - Municipal Corporation, Junagadh. By placing reliance on the affidavit dated 27.01.2025 by Senior Town Planner, Junagadh Municipal Corporation, learned advocate Mr. Kakkad submitted that the property in question is an open land and there is no construction on the portion of land in question. Therefore, issue of demolition would not arise. Pursuant to finalization of Town Planning Scheme No.1, Junagadh; the land is vested with Junagadh Municipal Corporation as per Section 67 of the Act, 1976 and therefore there is no illegality in taking possession of the said land. Moreover, the Town Planning Scheme No.1, Junagadh was; sanctioned on 26.02.1988 by the State Government and Final Town Planning Scheme, was sanctioned by State Government on 12.09.1995. Therefore, as per Section 65 of the Act, 1976 the land vests with the Municipal Corporation. Once the land is vested with the Municipal Corporation, the Corporation issued notices in the year 2022 and 2023, whereby the petitioner was informed Page 8 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined about its implementation. Pursuant to finalization of T.P.Scheme, Final Plot No. 114 being reserved for 'Neighborhood Center' which the petitioner was aware. This aspect is evident from the notice dated 14.06.2022 at (Annexure-R2 Page No. 77). Pursuant to the notice dated 14.06.2022, the petitioner approached respondent No. 3 wherein the petitioner was informed about the reservation of land for public purpose pursuant to finalization of Town Planning Scheme. This aspect is also evident from communication dated 21.12.2022 (Page No. 78) followed by another notice dated 01.02.2023 (Page No. 79). Therefore, the contention that the action initiated is without prior notice and without giving opportunity is beyond the facts. Most importantly, the petitioner in response to the notices issued, made a representation dated 15.10.2023 stating that the petitioner is ready and willing to pay for the land.
6.1 The reply of the petitioner was considered by communication dated 27.11.2024 (Annexure - R4 Page No. 81) wherein it was referred that earlier pursuant to the resolution dated 10.02.1992 land of 23269.49 sq. meters was sold to Patel Leuva Educational and Charitable Trust. Prior to that, the Preliminary Town Planning Scheme was sanctioned by the Government on 26.02.1988. Pursuant to finalization of Preliminary Town Planning Scheme, against original plot of Page 9 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined 23270 sq. meters Final Plot No. 88 having area of 17139 sq. meters was allotted. It was also referred that in Final Plot No. 114, area of 3543 sq. meters is of Municipal Corporation. Therefore, once the scheme is finalized nothing remains and therefore this petition deserves to be rejected.
6.2 Learned advocate Mr. Kakkad relied upon decision of Hon'ble Supreme Court in the case of Varahi Co-operative Housing Society Ltd. Vs. State of Gujarat and Ors reported in 2019 (2) GLR 1088, to submit that once the Scheme is sanctioned and it has become part of the Act the scope of judicial review is minimal.
7. Learned Assistant Government Pleader Mr. Sahil Trivedi by referring to the affidavit of Senior Town Planner submitted that after following all the prescribed provisions of the Act, 1976 and the procedure under the Rules, Junagadh Municipal Corporation forwarded Draft Town Planning Scheme No.1, Junagadh; to the State Government for its sanction under Section 48(1) of the Act, 1976 and the same was sanctioned by notification dated 11.02.1980. Thus, the Draft Town Planning Scheme No.1, Junagadh; was sanctioned under the provisions of Section 48(2) of the Act, 1976 by notification dated 11.02.1980. Thereafter, the Town Planning Officer was appointed to finalize the sanctioned Draft Town Planning Page 10 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined Scheme who entered upon his duties on 10.05.1980. The Town Planning Officer thereafter issued individual notices to the land owners inviting objections, suggestions on the proposal of Draft Town Planning Scheme on 24.11.1981. The issuance of notice to the petitioner is evident from notice dated 24.11.1981, (Annexure-R2 Page No. 95). Therefore, the contention that the petitioner was not served with the notice is beyond the facts. One more notice was issued on 01.12.1981 (Page No. 97) whereby personal hearing was also provided to the occupant. Thereafter, the scheme was sanctioned under Section 65 of the Act, 1976 which is evident from notification dated 26.02.1988 (Annexure-R5 Page No. 105). Thereafter, Final Town Planning Scheme No. 1, Junagadh; under Section 65 of the Act, 1976 was sanctioned vide notification dated 12.09.1995 and the same became part of Act. Therefore, now the land vests with the Government and therefore the contention of the petitioner that the respondent may be directed not to act upon is beyond the scope.
7.1 Learned Assistant Government Pleader Mr. Sahil Trivedi relied upon the decision of this Court in the case of Natvarlal Penubhai Decd. Thro Legal Heirs Vs. State of Gujarat reported in 2023 (0) AIJEL-HC 245832.
8. Considered the submissions. Upon revisitation of facts, it Page 11 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined is noticed that the petitioner herein is a registered Trust having ownership of the property in question. Earlier the property in question was in ownership of Shri Patel Vidhyarti Ashram, Junagadh (parent Trust). There is no dispute to the fact that the said property in question was leased by State Government to Shri Patel Vidhyarti Ashram, Junagadh and the trust was paying rent. Subsequently, the said land was purchased by the parent Trust i.e., Shri Patel Vidhyarti Ashram, Junagadh by payment of consideration which is evident from sale deed dated 11.06.1992. The said sale deed refers to the consideration received and also certain conditions for sale. Further, the mutation entry in Revenue Entry No. 5143 dated 17.10.1994 Village Form No. 6 refers to property in question in the ownership of Shri Patel Vidhyarti Ashram Trust, Junagadh and therefore the ownership is not in dispute by payment of consideration. One of the conditions of sale refers, that the property in question is to be used for educational purpose and no other use was permitted. Pursuant to ownership, permission was sought by the petitioner for development of School and the same was given by an order dated 06.10.2018. Therefore, running of School by the petitioner on the property in question is also not in dispute. However, the grievance of the petitioner started pursuant to the notice issued on 21.12.2022 wherein, reference was made in relation to finalization of Town Planning Scheme No.1, Page 12 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined Junagadh wherein Final Plot No. 114 was reserved for 'Neighborhood Center'. The said plot has been allotted to Junagadh Municipal Corporation for development of 'Neighborhood Center'. Accordingly, any construction in Final Plot No. 114 was directed to be removed considering it as unauthorized construction (Annexure-G, Page No. 61). The notice dated 21.12.2022 was followed by another notice dated 01.02.2023 (Annexure-H Page No. 62). Under the said notices petitioner was directed to remove unauthorized construction on Final Plot No. 114 within 7 days. The said notice also refers to finalization of Town Planning Scheme under Section 69 of the Act, 1976. The petitioner responded to the notice on the ground that the property in question is in ownership of the petitioner Trust and therefore the land reserved for the public purpose is erroneous. Hence, it is noticed that the only ground of objection by the petitioner to the notices issued and responded was that they are lawful owner of the property in question and that they have paid consideration for the entire portion of land. Since the consideration has been paid for the entire portion of land, part portion being reserved for Neighborhood Center is erroneous. However, it is noticed that in the petition filed, a ground was raised that the notices dated 21.12.2022 and 01.02.2023 was issued without providing any opportunity of raising their objections. Accordingly, this Court had issued notice and by order dated 20.01.2025 granted Page 13 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined status quo.
9. Moreover, it is noticed that the Preliminary Town Planning Scheme No.1, Junagadh which includes the property in question was sanctioned by the State Government on 26.02.1988. The Final Town Planning Scheme I, Junagadh was thereafter sanctioned on 12.09.1995. This aspect has been evident from Final F From at (Annexure R1 Page No. 76) wherein the property in question has been referred to as 'Neighborhood Center'. Also, there were earlier notices issued dated 14.06.2022 at (Annexure R2 Page No. 77), 21.12.2022 (Page No. 78) and 01.02.2023 (Page No. 79) whereby the petitioners were informed about implementation of Final Plot No. 114 'Neighborhood Center' as per sanctioned Town Planning Scheme No.1, Junagadh. The petitioner also filed response dated 11.10.2023 and therefore the contention raised in the petition that the petitioner was not made aware prior to the notices dated 21.12.2022 and 01.02.2023 is contrary to the facts on record. From the affidavit filed by respondent No. 2 - Senior Town Planner, Gandhinagar it is noticed that Junagadh Nagarpalika prepared and submitted the Draft Town Planning Scheme No.1, Junagadh to State Government for its sanction under Section 48(1) of the Act, 1976. The State Government thereafter by its notification dated 11.02.1980 sanctioned the Draft Town Planning Scheme No.1, Junagadh under Section Page 14 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined 48(2) of the Act, 1976. Upon sanctioning of the Draft Town Planning Scheme under Section 48(2) of the Act, 1976, Town Planning Officer was appointed by notification dated 06.03.1980 to finalize the sanctioned Draft Town Planning Scheme I, Junagadh. Thereafter, the Town Planning Officer having entered upon his duties issued individual notices to the concerned land owners to invite objections/suggestions on the proposal of Draft Town Planning Scheme on 24.11.1981. This notice is forming part of reply at (Annexure-R2 Page No. 95).
10. Further, the said notice is once again followed by notice dated 01.12.1981 at (Annexure-R3 Page No. 97) wherein the owners/ occupants have been given personal hearing. A notice dated 12.02.1980 is also forming part of record where owners/ occupants were called upon to raise their objections. Therefore, in the opinion of this Court before finalization of Town Planning Scheme No.1, Junagadh; opportunity was provided.
11. The Town Planning Officer thereafter declared the decision of Preliminary Town Planning Scheme No.1, Junagadh; on 21.06.1984 under Section 52(1) of the Act, 1976 which is evident from Annexure-R4 (Page No. 97). Thereafter, the Preliminary Town Planning Scheme was submitted to State Government for its sanction and the State Government by notification dated 26.02.1988 at (Annexure-R5 Page No. 105) Page 15 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined sanctioned the Preliminary Town Planning Scheme No.1, Junagadh.
11.1 Therefore, there is no denial that the scheme was finalized after following the due procedure as contemplated under the provisions of the Act and the Rules. Therefore, once the Preliminary Town Planning Scheme has been finalized after following the due procedure as contemplated under the provisions of the Act and when the land is reserved for public purpose, the same has become part of the Act and intervention of this Court is very minimal.
12. Further, it cannot be ignored that when the petitioner purchased the property in question by way of registered sale deed, they were aware about pending Town Planning Scheme as they had already raised their objections in relation to the same.
13. At this stage, it would be apposite to refer to the decision of this Court the case of Varahi Co-operative Housing Society Ltd. Vs. State of Gujarat and Ors reported in 2019 (2) GLR 1088, wherein it is held as under:-
"7. In order to appreciate the rival contentions raised by the learned advocates for the parties, it would be beneficial to refer the relevant provisions under the said Act. As per Section 65(1) of the said Act, on the receipt of Page 16 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined preliminary scheme, or as the case may be, final scheme, the State Government may by notification sanction the preliminary scheme or final scheme as the case may be, or refuse to give sanction within the prescribed time limit. Section 65(3) inter alia provides that on and after the date fixed in such notification, the preliminary scheme or final scheme as the case may be, shall have effect as if it were enacted in the said Act. As per Section 67 of the said Act, on the day on which preliminary scheme comes into force, all lands required by the appropriate authorities, would vest absolutely in the appropriate authority free from all encumbrances, unless otherwise determined in such scheme, and all rights in the original plots which have been reconstituted in the final plots, would stand determine on the final plots, and would become subject to the rights settled by the Town Planning Officer. Section 68 empowers the appropriate authority to summarily evict any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme, after following the prescribed procedure. Section 69 also empowers the appropriate authority to enforce the preliminary scheme as per the prescribed procedure. It is pertinent to note that as per Section 70, the power to vary the scheme on the ground of error, irregularity or informality, lies with the State Government only.
8. Thus, in view of the said provisions contained in the Act, on the preliminary scheme and final scheme having come into force, the same shall have effect as if it were enacted under the Act, and all lands required by the appropriate authority would vest absolutely in the appropriate authority free from all encumbrances. The variation of the scheme Page 17 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined could be done only by the State Government as per the provisions contained in Section 70 of the said Act. As per the settled legal position, the validity of legislative measure can be gone into only to the limited extent i.e. where there is transgression of jurisdiction of the authorities concerned; where the scheme finally emerged is totally inconsistent with the Act, and where minimum statutory essentials are not complied with. Beneficial reference of the decision in the case of Shilpa Park Co-operative Society Ltd. versus Surat Urban Development Authority and Others reported in 1996(2) GLH 287, be made in this regard.
9. So far as present petition is concerned, apart from the fact that the notification issued on 04.03.2014 has been challenged by way of present petition filed in February, 2018, i.e. almost 4 years of the issuance of the said notification, and therefore, the present petition suffers from the vice of delay and laches, it is also pertinent to note that the final scheme No. 12 has now already been sanctioned by the State Government as per notification dated 02.01.2017 in exercise of powers conferred under Section 65 of the said Act, and therefore, the final scheme has become part of the Act."
14. In one more decision of this Court in the case of Natvarlal Penubhai Decd. Thro Legal Heirs vs. State of Gujarat it is held as under:-
"(14) As noticed hereinabove, the entire case of the petitioners hinges on finalization of the plot by calculating their respective shares on the entire plot. In this regard the petitioners have also contended that the respondent-SMC, in the process of finalizing the T.P. Scheme, should Page 18 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined have considered Entry No.1350 mutated in the revenue record showing the respective plot of the each of the petitioners. Such a contention raised by the petitioners cannot be entertained in wake of the aforementioned mentioned provisions of the Bombay Town Planning Act, 1954 and also the Gujarat Town Planning Act, 1976, after finalization of the Town Planning Scheme. As noted hereinabove, the partition deed dated 03.10.1975 of land bearing Revenue Survey No.53/2, has been executed subsequently, after sanction of the Draft Town Planning Scheme by the State Government on 06.09.1971. Thus, till the stage of the Draft Scheme the revenue record showed a consolidated plot and not in divisions, hence the Town Planning Officer proceeded on the basis of the single plot of Revenue Survey No.53/2. The State Government sanctioned the preliminary scheme being Town Planning Scheme No.6 under Section 65 of the Gujarat Town Planning Act, 1976 on 27.10.1980 and the final scheme was sanctioned on 28.07.1987. At no point of time, the petitioners have raised an objection, hence the grievance of the petitioners does not merit acceptance. This Court cannot exercise its discretion by invoking its extraordinary powers conferred under Article 226 of the Constitution of India for issuing any directions as prayed for in the writ petition, since such directions will dilute the entire purport and the scheme of the Act. The writ petition is barred by the principle of waiver and estoppel. Any directions issued at this stage will be deleterious to the objects of the Town Planning Scheme, and will set a wrong precedent. No directions, even on the suggestion of the respondent-Corporation can be issued by this Court for examining the grievance of the petitioners by a Committee formed under section 67 of the T.P. Act, 1976. Such a Page 19 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined direction, if is issued, will further give rise to a fresh cause of action and new litigation, after passage of almost 35 years from the finalization of the T.P.Scheme and that too in a writ petition, which has been filed after a period of 12 years after finalization of the Town Planning Scheme. Hence, I am not inclined to interfere with the notice dated 16.03.2022, which is served recently during the pendency of the writ petitions and are produced in the connected civil applications."
15. So far as the decision relied upon by learned senior advocate for the petitioner in the case of Keshavji Devji Patel [supra] is concerned, in the opinion of this Court the same would not be applicable in the facts of the present case because in the said matter, principles of natural justice had not been followed while enforcing the scheme. However, due procedure as contemplated under the provisions of the Act and the Rules being followed in the present matter, this judgement relied upon would not be applicable.
16. Further, in the decision relied upon of Hon'ble Supreme Court in the case of Kolkata Municipal Corporation [supra], the Hon'ble Supreme Court has considered that it is the duty of the State Government to inform the person of its decision to acquire and the right to a reasoned decision when the land is acquired for public purposes. The same are not the facts in the present case and hence in the opinion of this Court, the Page 20 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025 NEUTRAL CITATION C/SCA/15415/2024 JUDGMENT DATED: 17/02/2025 undefined decision would not be applicable.
17. In view of reasons stated hereinabove, the petition fails and the same is dismissed. Interim order stands vacated. Rule is discharged. No order as to costs.
(MAUNA M. BHATT,J) FURTHER ORDER At this stage, learned advocate for the petitioner requested that status-quo earlier granted to be continued for a further period of seven days to challenged this order.
Considering the request made, the status-quo earlier granted vide order dated 20.01.2025 is continued for a further period of seven days. No further extension shall be granted.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 21 of 21 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:28:19 IST 2025