Gujarat High Court
Bhagyalakshmi Housing Society vs State Of Gujarat on 10 October, 2022
C/SCA/17315/2022 ORDER DATED: 10/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17315 of 2022
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BHAGYALAKSHMI HOUSING SOCIETY
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2,3
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 3
MR RUTVIJ M BHATT(2697) for the Respondent(s) No. 4,5,6,7,8,9
MR MEET THAKKAR, AGP for the Respondent(s) No. 1,10,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/10/2022
ORAL ORDER
1. This petition is filed for the following reliefs:
"8(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to :
(i) quash and set aside the impugned order dated 15 th June, 2022 passed by respondent No.10-Chief Town Planning Officer;
(ii) hold and declare that action on part of the respondents more particularly respondent Nos.2 and 3 in proposing Preliminary Town Planning Scheme Billimora No.1 (Billimora-Desra) dated 01.08.2014 and subsequent sanction of the said Town Planning Scheme by the State Government vide Notification dated 27.05.2019 as unjust, illegal and arbitrary to the extent the common plot of the petitioners is Page 1 of 6 Downloaded on : Tue Oct 11 21:08:51 IST 2022 C/SCA/17315/2022 ORDER DATED: 10/10/2022 sought to be snatched away by the said scheme and is sought to be included in Final Plot No.73A;
(iii) hold and declare that action of the respondents in merging the common plot of the petitioners situated at Survey No.486 Paiki admeasuring about 1065 sq.mtrs. and merging the same in Final Plot No.73A as illegal, unjust, arbitrary and contrary to the settled policy and principles of the State Government;
(iv) hold and declare that respondent Nos.2 and 3 have no right to merge the private property of the petitioners viz.common plot, in the private plot No.73A and so as to make undue benefit to the private respondents and accordingly direct the respondents no.1 to 10 to very the scheme Town Planning Scheme-1 (Bilomora-Desra) under Section 70 to the said extent;
(v) hold immediate and thorough inquiry against respondent Nos.2 and 3 for the irregularities and illegalities they have committed while framing the preliminary Town Planning Scheme Billimora No.1 (Billimora-Desra) more particularly acting at the behest of the private respondents by taking common plot of the petitioners and merging the same with the property of the private respondents;
(B) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to maintain status quo with regard to the common plot of the petitioners situated at Survey No.486 Paiki admeasuring about 1065 sq.mtrs. which has been Page 2 of 6 Downloaded on : Tue Oct 11 21:08:51 IST 2022 C/SCA/17315/2022 ORDER DATED: 10/10/2022 shown as merged in the Final Plot No.73A in the preliminary Town Planning Scheme Billimora No.1; (C) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct respondent Nos.1 to consider the case of the petitioners and decide for variation of the Town Planning Scheme Billimora No.1 (Billimora-Desra) under Section 70 of the Act; (D) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent Nos.1 to hold thorough inquiry into the action of the respondent Nos.2 and 3 while proposing and finalizing preliminary Town Planning Scheme Billimora No.1 (Billimora-Desra) more particularly while merging the common plot of the petitioners with Final Plot No.73A of the private respondents thereby unduly benefitting the private respondents;
(E) xxxxx"
2. Heard learned advocates for the parties.
3. Learned advocate Mr.Dave for the petitioners mainly submitted that in pursuance to the direction issued by this Court on 5.5.2022 in Special Civil Application No.2973 of 2022, the Chief Town Planner is required to hear the submissions of the petitioners, but, in fact it is heard by Additional Town Planner and order is passed Page 3 of 6 Downloaded on : Tue Oct 11 21:08:51 IST 2022 C/SCA/17315/2022 ORDER DATED: 10/10/2022 under the signature of the Chief Town Planner and therefore there is per se non-application of mind or the order is passed against the settled principles of law.
4. Learned advocate Mr.Bhatt appearing for respondent nos.4 to 9 has submitted that if this Court is of the opinion to remand back the matter to the concerned authority, then paragraph 5 of the earlier order dated 5.5.2022 passed in Special Civil Application No.2973 of 2022 may be taken into consideration.
5. Learned AGP Mr.Thakkar appearing for the state has tendered the affidavit-in-reply, which is taken on record. He has taken this Court through the said affidavit-in-reply filed by one Kishor D Sagathia, Senior Town Planner and submitted that the submissions are heard by the Additional Town Planner, however, the request made by the petitioner to consider the representation dated 1.6.2022 was considered by the authority and therefore he submitted that as such there is no illegality committed by the authority below.
6. Considering the rival submissions and the material Page 4 of 6 Downloaded on : Tue Oct 11 21:08:51 IST 2022 C/SCA/17315/2022 ORDER DATED: 10/10/2022 on record, it transpires that though the Chief Town Planner is required to give hearing to the present petitioners and decide the objection and application of the petitioner, in the present case, the Additional Town Planner has heard the present petitioners and thereafter the Chief Town Planner has signed the order. Therefore, this Court is of the opinion that it is appropriate to remand back the matter to the Chief Town Planner.
7. Accordingly, this petition is disposed off. The matter is remanded back to the Chief Town Planner to decide the said application afresh after giving sufficient opportunity to the respective parties, more particularly, the present petitioners and thereafter take decision in accordance with law. It is further clarified that the direction which is given in paragraph 5 of the order dated 5.5.2022 passed in Special Civil Application No.2973 of 2022 will remain continued. It is expected that the Chief Town Planner shall fix the date of hearing within two weeks from the receipt of this order and thereafter decide such application, as expeditiously as possible, preferably within a period of four weeks thereafter. In view of the above, it is needless to say Page 5 of 6 Downloaded on : Tue Oct 11 21:08:51 IST 2022 C/SCA/17315/2022 ORDER DATED: 10/10/2022 that the impugned order dated 15.6.2022 will not remain in existence. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 6 of 6 Downloaded on : Tue Oct 11 21:08:51 IST 2022