Gujarat High Court
Transportnagar - Aslali vs Ahmedabad Urban Development Authority on 6 May, 2019
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/16026/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16026 of 2013
==========================================================
TRANSPORTNAGAR - ASLALI
Versus
AHMEDABAD URBAN DEVELOPMENT AUTHORITY & 3 other(s)
==========================================================
Appearance:
MR M. C. BHATT, ADVOCATE for MR JIGAR P RAVAL(2008) for the
Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 2
MR DEEP D VYAS(3869) for the Respondent(s) No. 4
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 06/05/2019
ORAL ORDER
1. The petitioner who happens to be the association registered under NonTrading Corporation Act, has filed the present petition seeking mainly following reliefs:
"(A) Quashing and setting aside the draft TP Scheme No.129 (Aslali Jetalpur) in so far as it relates to the land covered by Annexure-A or any other appropriate writ or order restraining the Government of Gujarat from approving and sanctioning the impugned draft TP scheme and further be pleased to restrain the respondent nos.1 and 2 from implementing and enforcing the draft Page 1 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER TP scheme to the extent of land covered by Annexure-A and further be pleased to direct AUDA to allot one final plot against 20 parcels of land described in Annexure-A without making any deduction.
6(AA). Your Lordships may be pleased to issue writ of mandamus or any other writ order or directing quashing and setting aside the impugned notification dated 02.12.2013 issued by the Government of Gujarat under section 48(1) of the Town Planning Act at Annexure-M so far as it relates to the questioned land."
2. The short facts giving rise to the present petition are that the respondent no.1 Ahmedabad Urban Development Authority (hereinafter referred to as 'AUDA' for short) had acquired in all 173000 sq. mtrs. of land situated at villageAslali for the purpose of providing infrastructure to the transporters. The petitioner Association negotiated with AUDA for the allotment of said land for its members to construct godowns, offices etc. Page 2 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER Ultimately, the AUDA agreed to allot 77000 sq. mtrs., land out of the total land of 173000 sq. mtrs. The agreement between the petitioner Association and the AUDA was entered into on 10.02.1992 incorporating terms and conditions for the allotment of the said land (AnnexureB). Accordingly, the possession of the said land was handed over to the petitioner Association vide possession receipt dated 21.02.1992.
3. It is further case of the petitioner that the petitioner had submitted a plan for development of the land under the Gujarat Town Planning Urban Development Act, 1986 (hereinafter referred to as 'the said Act') and AUDA had granted the development permission for constructing godowns, offices etc. as per the development permission dated 04.04.1994. Since, the litigation was pending at various stages, the AUDA ultimately had executed the saledeed on 21.06.2003 in Page 3 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER favour of the petitionerAssociation (AnnexureF), however, for some reasons, the registration was delayed and the said sale deed was finally registered on 20.07.2009. Since, the name of the AUDA was appearing in the revenue record, a dispute was raised by the petitioner for entering the name of the petitioner, pursuant to the saledeed executed by the AUDA. Since, some of the lands in question were originally restricted tenure land, the petitioner had preferred Special Civil Application No.6000/2012. The petition was disposed off by the Court vide order dated 26.06.2012 permitting the petitioner to make appropriate application to the concerned authority. Accordingly, the petitioner had made representation to the concerned authority, however, on technical ground, the authority refused to entertain the said representation.
4. The petitioner again filed Special Civil Page 4 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER Application No.2485 of 2013, in which, the Court had issued notice to the concerned authority. According to the petitioner, after execution of the saledeed in favour of the petitioner by the AUDA, the petitioner had allotted in all 274 plots to different persons, who were engaged in the business of transportation and were the members of the petitioner association. About 70% of the members of the petitioner association had constructed godwons, offices and other infrastructure facilities pursuant to the development permission granted by the AUDA and all common amenities like compound wall, internal roads etc. were set up by the petitioner association on the said land. The petitioner thereafter came to know that some parcels of land out of the entire area purchased by the petitioner were covered under the TP Scheme No.129 (AslaliJetalpur). The petitioner also came to know that the some final plots were sought to be allotted Page 5 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER out of the land covered under TP Scheme and the said Final plots were sought to be alloted to AUDA and not to the petitioner association. The petitioner also came to know that the some portion of the questioned land was included in the reservation for the purpose of commercial sale and some portion for the purpose of providing housing to the people belonging to the Economically Weaker Section of the Society.
5. According to the petitioner, few days before filing of the present petition, some persons posing themselves to be the representatives of respondent no.3 came to the gate of the Transportnagar. They were accompanied by their security guards and threatened the members of the petitioner association to demolish their buildings with bulldozers. The petitioner thereafter sought certain information from the AUDA under the Right to Information Act, which was received on Page 6 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER 14.10.2013. Thereafter, being aggrieved by the said draft TP Scheme No.129 (Aslali Jetalpur), in so far as it related to the land of the petitioner association, present petition has been filed.
6. The respondent No.1 AUDA has filed affidavit in reply denying the allegations and averments made in the petition and stating inter alia, that the land admeasuring 77000 sq. mtrs. carved out from the various revenue block numbers 933/P and others of village Aslali, was sold by AUDA to the petitioner association through registered saledeed dated 02.07.2009. Thereafter, the AUDA had consulted Chief Town Planner on the issue of proposed draft TP Scheme No.129 (Aslali Jetalpur) as per the provision contained in section 41(1) of the said Act and after following the procedure, the objections to the said draft scheme were invited from the public at large. Thereafter, the said Page 7 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER objections were considered and notification dated 20.09.2012 was published in the Government Gazette under the provision contained in Section 42(1) of the said Act. Even the public notices in two Gujarati dailies i.e. 'Divya Bhaskar' and 'Sandesh' were published on 30.09.2012 inviting objections/ suggestions from the affected parties before forwarding of the proposal of the draft TP Scheme under section 48 of the said Act. Ultimately, the proposal of draft TP Scheme No.129 was forwarded alongwith letter dated 28.02.2013 for further action. The respondent no.2 sanctioned the said draft TP Scheme No.129 (Aslali Jetalpur) under the provisions of section 48(2) of the said Act. The notification in that regard was published on 02.12.2013. Thus, according to the said respondent, all the owners and interested parties were given sufficient opportunities at each and every stage to submit their objections/ suggestions and after following Page 8 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER the due procedure, the proposal for draft TP Scheme in question was sanctioned by the respondent no.2. The petitioner having submitted their representation after sanction of the TP Scheme, the same could not be considered.
7. It is sought to be submitted by the learned Advocate Mr.M.C.Bhatt appearing for the learned Advocate Mr.Jigar P. Raval for the petitioner that the petitioner having purchased the land in question from AUDA for the development of Transportnagar and the AUDA having granted the permission to develop the same by executing saledeed in favour of the petitioner association, the AUDA could not have proposed the TP scheme covering the land in question. He also submitted that the petitioner association was not aware about the publication of the draft TP scheme and therefore, had not raised the objections at the relevant time, however subsequently, the Page 9 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER petitioner having made representation, the AUDA itself had examined the issue of variation in the said draft TP scheme and had submitted the proposal for variation to the respondent No.2 for consideration. Pressing into service the provisions contained in the Town Planning Act, more particularly section 48A of the said Act, he submitted that if the part of the land in question vests in the appropriate authority as per the sanctioned draft scheme, no useful purpose would be served by raising objections before the Town Planning Officer, who as such has no authority to vary the draft scheme. He therefore, submitted that the respondent no.2 be directed to consider revised proposal made by the AUDA treating the same as if the preliminary scheme was sanctioned.
8. However, the learned Advocate Mr.H.S.Munshaw for the respondent no.1 AUDA, vehemently submitted that the petitioner having failed Page 10 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER to make representation or to raise objections at the relevant time after publication of the draft scheme, the same was sanctioned by the Government, and that part of the said land in question has already vested in the appropriate authority. He submitted that the Town Planning Officer has already been appointed for implementation of the said scheme and the petitioner association had also failed to make representation before the Town Planning Officer.
9. Having regard to the submissions made by learned Advocates for the parties and to the documents on record, it appears that it is not disputed that the petitioner association had purchased the land admeasuring 77000 sq. mtrs., out of the total land admeasuring 173000 sq. mtrs., belonging to AUDA situated in the village Aslali, by executing a registered saledeed. It is also not disputed that the petitioner association had not Page 11 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER raised any objection against the draft TP scheme No.129 after its publication as contemplated under section 47 of the said Act. It is also not disputed that the State Government had already sanctioned the said draft TP scheme under sub section 2 of section 48 of the said Act. It appears that part of the said land in question had already been covered under the sanctioned draft scheme, and shown as required for the purpose of road and other purposes, which have vested absolutely in the appropriate authority free from all encumbrances by virtue of section 48A of the said Act.
10. There is no justification coming forth from the petitioner association as to why it had not raised objection after publication of the draft scheme. The petitioner having failed to do so, the proposal of draft scheme was processed further and sanctioned by the Government in accordance with law. Page 12 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER Thereafter, the Town Planning Officer has also been appointed for implementation of the scheme under section 50 of the said Act.
11. It cannot be gainsaid that the Town Planing Officer has to subdivide the TP scheme into preliminary scheme and final scheme as contemplated under section 51 of the said Act. In the preliminary scheme, the Town Planning Officer after giving notice to the persons affected by the scheme, has to define and demarcate the areas allotted to or reserved for any public purpose, or for the purpose of appropriate authority and the final plots. The Town Planning Officer after giving notice, has to determine in a case in which a final plot has to be allotted to persons in ownership in common, the shares of such persons as contemplated under section 52 of the said Act. The Town Planning Officer is also empowered to make variation from the draft scheme, if such variation is not of a Page 13 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER substantial nature, as per the proviso to sub section 3 of section 52 of the said Act. It is pertinent to note that on the Town Planning Officer having submitted the preliminary scheme to the State Government for sanction, the State Government may sanction the preliminary scheme as submitted or with such modifications, as may be necessary, under section 65 of the said Act. Thus, in view of such provisions contained in the said Act, the petitioner could not have challenged the draft scheme, more particularly when they had failed to raise objections at the relevant time of the publication of the draft scheme. In any case, according to the petitioner, the AUDA has proposed some modifications in the draft scheme, which are pending for consideration before the State Government. Under the circumstances, the Court is not inclined to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India to Page 14 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019 C/SCA/16026/2013 ORDER interfere with the said draft scheme sanctioned by the State Government.
12. In that view of the matter, the petition being devoid of merits is dismissed. Notice is discharged. Interim relief, granted earlier stands vacated forthwith.
13. At this juncture, the learned Advocate Mr.Jigar Raval for the petitioner has requested to continue the status quo for sometime to enable the petitioner to approach the Higher Forum. The said request for extension of interim relief, is rejected for the reasons stated above.
(BELA M. TRIVEDI, J) TUVAR Page 15 of 15 Downloaded on : Sun Jun 30 13:20:40 IST 2019