Gujarat High Court
Ramlal Sohanji Suthar vs State Of Gujarat on 21 September, 2022
C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8563 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
RAMLAL SOHANJI SUTHAR & 13 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR N R DESAI(6504) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
GOVERNMENT PLEADER for the Respondent(s) No. 1,2
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 3,4
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/09/2022
CAV JUDGMENT
1. Today, the present petition is heard for final Page 1 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 disposal as agreed by learned advocates appearing for the respective parties. The present petition is filed by the petitioners seeking for following prayers:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent-Corporation, its officers, servants, agents not to demolish further the properties of the petitioners and also further be pleased to direct the respondent Corporation to decide the representations dated 24.09.2012 and 09.04.2015 (at ANNEXURE-Q & ANNEXURE-R hereto) and pass reasoned order thereon and decide its notices dated 01.05.2015 (at ANNEXURE-T (Colly.) hereto) after giving proper opportunity of hearing to the petitioners;
[AA] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside orders dated 04.05.2015 passed by the respondent Corporation (at ANNEXURE-X (Colly) hereto), as far as it relates to plots/lands where the properties of the petitioners are situated;
Page 2 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 (B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent-Corporation to maintain status-quo with respect to the properties in question of the petitioners;
[BB] During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of orders dated 04.05.2015 passed by the respondent- Corporation (at ANNEXURE-X (Colly) hereto), as far as it relates to plots/lands where the properties of the petitioners are situated;
(C) XXX.
2. The brief facts of the present case are as under:
2.1 The petitioners are residing at the addresses mentioned in the cause-title of the present petition in Pandeynagar Society, which is situated at Block No.505, Village Dindoli, Tal. Choryasi, Dist. Surat. Some of the petitioners (except petitioner Nos.1, 2, 6 and 13) do not have the sale deeds in their favour, however, they have the possession receipts and agreements entered into by the society in their favour. In exercise of powers under Page 3 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Section 17 of the Act, the State Government had, by Notification No.GH/V/100 of 2004 dated 02.09.2004, Sanctioned the development plan for Block No.505. As per the said plan, it is quite clear that only a very minor portion about 8 mtr. of the road of 45 mtrs., passes from the land at Block No.505 and the the said sanctioned development plan is maintained, the houses of the petitioners would not be required to be demolished.
Earlier one Shri Bhikhabhai Patel had preferred a writ petition before this Hon'ble Court being Special Civil Application No.1193 of 2008 seeking a relief that the respondents may not deviate from the sanctioned development plan. The said petition, an affidavit was filed by SUDA stating that the State Government has sanctioned the revised development plan on 02.09.2004, after following due procedure laid down under the Act and thereafter no modification qua 45 mtrs. wide T.P. Road is made by SUDA or the State Government. In view of the said affidavit and further in view of a letter dated 24.03.2008, written by SUDA to said Shri Bhikhabhai Patel, the cause of action for filing the said petition did not survive since it was accepted by SUDA that they are not going to deviate from the above Page 4 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 referred development plan. Hence, in view of letter dated 24.03.2008 the said writ petition was withdrawn. The petitioners therefore, were all along under the impression that the respondent authorities would not deviate from the abovementioned development plan that as such, the petitioners were not the part of the above referred writ petition, however, they have learnt the said fact, after inquiring from Shri Bhikhabhai Patel, who were the petitioners in the above-referred writ petition. It is stated in the petition that the present petitioners on 17.09.2010, officers of respondent No.3 herein had threatened the petitioners and others that their houses would be demolished since now the Major portion of the road is to be made from the land at Block No.505. Officers had threatened that the petitioners should themselves start removing his construction and the Corporation would or else, demolish the same. When the petitioners argued with the officers of the respondent Corporation and informed them about the sanctioned development plan, the officers stated that they are going to change the sanctioned development plan and now almost entire 45 mtrs. road would pass through Block No.505 where the residential houses of the petitioners are situated.
Page 5 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Therefore some of the petitioners preferred Special Civil Application No.12283 of 2010 before this Hon'ble Court wherein, initially this Hon'ble Court vide order dated 22.09.2010 granted status quo. The grievance of the petitioners was that the respondent-Corporation without making variation under section 19 of the Town Planning Act, cannot unilaterally change the alignment and width of the road. On 26.10.2010, some of the petitioners made representation to respondent Nos.1 and 2 pointing out, inter alia, that without following the requisite procedure the alignment of the road should not be changed. On 19.11.2010, certain officers of the respondent-Corporation had come and told the petitioners that their houses would be demolished since the road is to be laid. Therefore, some of the petitioners preferred Special Civil Application No.14892 of 2010 before this Hon'ble Court, which was disposed of vide order dated 14.12.2010 recording undertaking of Surat Municipal Corporation that it would act only as per procedure of law, thereafter, again 14.12.2010 petitioner No.1 has made detailed representation to the respondents. Thereafter, on 17.05.2011 the respondent Corporation has issued notice to the petitioners under section 260(1)(a) of the BPMC Page 6 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Act asking the petitioners why their construction should not be demolished. On 02.06.2011, some of the petitioners gave replies to the said notice. Some of the petitioners had preferred Special civil Application No.7405 of 2011 and other cognate matters before this Hon'ble Courts which were disposed of vide order dated 28.07.2011 wherein it was observed that Municipal Commissioner, Surat Municipal Corporation would act strictly in accordance with law while taking action pursuant to the notice dated 17.95.2011. The said order was duly served upon to the concerned respondents herein. Without giving any further opportunity of hearing to the petitioners and without taking note of any of the objections of the petitioners, straightway respondent No.4 has passed the orders for demolition of the construction of the petitioners on 03.10.2011. Further, against the same, some of the petitioners preferred a writ petition being Special Civil Application No.14894 of 2011 before this Hon'ble Court, wherein order dated 20.06.2012 was passed whereby the petitioners were permitted to be withdrawn with a view to approach the respondent Corporation in view of the passing of the new the Gujarat Regularization of Unauthorized Development Act, Page 7 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 2011. Thereafter, on 25.06.2012, some of the petitioners have made applications to Surat Municipal Corporation.
Applications of the petitioners are still pending. In the meantime, the State Government has issued notification dated 02.07.2012 whereby the said Draft Town Planning Scheme has been sanctioned. Based on the said notification, the petitioners were issued notices dated 17.07.2012 for vacating the premises. Though the same is styled as notice, it is in fact an order and the contents thereof clearly show that the respondent Corporation has already made up its mind to demolish the premises of the petitioners. In view of the aforesaid facts, earlier petitioner Nos.1 to 9 preferred a writ petition being Special Civil Application No.10332 of 2012 before this Hon'ble Court, which was disposed of vide order dated 06.09.2012 wherein it is clearly observed that it would be open for the petitioners to file representation(s) and raise all contentions which are raised in the petition and after hearing the petitioners, appropriate reasoned order would be passed. The petitioner No.10 preferred Special Civil Application No. 58 of 2012 before this Hon'ble Court, which came to be disposed of vide order dated 05.09.2012. Thereafter pursuant to the aforesaid order Page 8 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 dated 06.09.2012 of this Hon'ble Court, the petitioners made representations to the respondent-Corporation on 24.09.2012 and the said representation of the petitioners have not been decided by the respondent - corporation till the year of 2015 and therefore, the present petitioners have given reminder application on 09.04.2015 to the respondent corporation. Despite the fact that the respondent-Corporation was duty bound to consider the representations of the petitioners, as per the directions given by this Hon'ble Court in earlier round of petitions, in most illegal manner and in violation of the directions issued by this Hon'ble Court, the respondent Corporation demolished some part of the properties of the petitioners on 01.05.2015. Further, they cannot take the law in their hands, however, they continued the demolition and demolished almost 50% of the properties of the petitioners. Ultimately, after demolishing 50% of the properties of the petitioners, it appears that the officers of the respondent-Corporation realized their mistake and issued notice for hearing to the petitioners on 01.05.2015.
The said representation dated 24.09.2012 has remained undecided till date. Further, the respondent Corporation on 08.01.2014 had given offer to some of the petitioners Page 9 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 offering alternative accommodation and the petitioners had duly replied to the same on 12.01.2014. Further, on 01.05.2015, without complying with the directions of this Hon'ble Court, the respondent-Corporation had demolished the houses of the petitioners and thereafter having realized the mistake on the same day, in the evening, the respondent Corporation has issued notices to the petitioners for hearing. The respondent corporation has defeated the property rights of the petitioners and has acted in most dramatic manner. The representations dated 24.09.2012 and 09.04.2015 of the petitioners have been dismissed by orders dated 04.05.2015.
3. Heard learned advocate Mr. S.P. Majmudar for the petitioners, learned Assistant Government Pleader Mr. Meet Thakkar for the respondent Nos.1 & 3 and learned advocate Mr. Dhaval G. Nanavati for the respondent No.2. Since the matter is of the year 2015, it is heard for final disposal.
4.1 Learned advocate Mr. Majmudar for the petitioners has submitted that is the petitioners are residing since more than three decades mentioned at the cause title Page 10 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 mentioned in the petition and the petitioners have valid possession receipts in their favour. He has further submitted that on 02.07.2012, the draft Town Planning Scheme was sanctioned by the State Government with respect to the lands of the petitioners being draft Town Planning Scheme No.62 (Dindoli - Bhestan - Bhedwad), Surat. He has further submitted that under the said draft Town Planning Scheme, the construction and occupation of the petitioner was substantially affected. He has further submitted that on 17.04.2013, notices were issued by the respondent corporation to the petitioners to vacate the premises. He has further submitted that the petitioners have preferred Special Civil Application No.10332 of 2012. He has further submitted that on 06.09.2012, Special Civil Application No.10332 of 2012 was disposed of by this Hon'ble Court wherein it was directed that the Corporation shall decide the objections of the petitioners after giving an opportunity of hearing to the petitioners, considering the law laid down by the Hon'bie Supreme Court in the case of Babubhai and Company v. State of Gujarat , reported in 1985 (2) GLR 833. He has further submitted that on 24.09.2012 they have filed fresh representation Page 11 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 and the said represent have not been decided by the respondent corporation till the year 2015 and therefore, the petitioners have given reminder application on 09.04.2015 to the respondent corporation that despite the fact that the respondent corporation was duty bound to consider the representations of the petitioners. He has further submitted that the on 01.05.2015 respondent corporation demolished some part of the properties of the petitioners and after demolition of almost 50% of the properties of the petitioners, it appears that the officers of the respondent corporation realized their mistake and issued notice for hearing to the petitioners on 01.05.2015.
He has further submitted that being aggrieved and dissatisfied by the dismissal of the objection as well as Town Planning Scheme, the petitioners have preferred the present petition. He has further submitted that by the impugned order of the respondent Corporation dated 24.09.2012 is absolutely unreasoned order. He has further submitted that the said order does not deal with any of the objections raised by the petitioners. He has further submitted that the various factual objections were raised by the petitioner that they were never served with notices of the draft Town Planning Scheme and the Page 12 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 petitioners also raised objection that the road is being made in a zig zag manner to specifically target the houses of the petitioners and thereby saving the adjoining lands of the influential persons. He has further submitted that the impugned order is completely silent on the objections of the petitioners and the said order is based on the finding that once the scheme is sanctioned, larger public interest requires that the petitioners have to vacate their premises. He has submitted that the impugned order is passed in complete violation of the principles of natural justice as the objections of the petitioners have not been dealt with properly. He has submitted that the impugned order is also in violation of the law laid down by the Hon'ble Supreme Court in the case of in the case of Babubhai and Company vs. State of Gujarat (Supra). He has submitted that whereby the Hon'ble Supreme Court has held that even while implementing the Town Planning Scheme, the implementing Agency has to act as a quasi judicial authority and has to deal with the objections in objective and fair manner which has not been done in the present case, therefore, he has prayed that the impugned order may be set aside and the matter may be sent back to Page 13 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 the corporation to decide the objections of the petitioner properly. He has submitted that even under Rule 26 of the Town Planning Rules, the Town Planning Officer is required to consider the objections of the affected persons after the draft Scheme is sanctioned.
4.2 He has relied on the judgment of the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation and Another v. Ahmedabad Green Belt Khedut Mandal reported in 2014 (7) SCC 357. He has submitted that in the present case, the petitioners made out cogent grounds why the road width is required to be reduced/changed. However, if the Scheme is implemented at this stage, then virtually Rule 26 of the Town Planning Rules become redundant and the petitioners be deprived of their opportunity of raising objections with the Town Planning Officer. He has further submitted that in view of the law laid down in judgment of the Hon'ble Apex Court in the case of Babubhai and Company vs. State of Gujarat (Supra) and in view of the provisions of Section 68 of the Act and as the petitions are having Kabja receipt, which clearly establish that the petitioners as a occupants, are required to be heard at Page 14 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 the stage of implementing the scheme, therefore, merely because the petitioners are having Kabja receipt does not make any differences as far as duty cast upon the respondent corporation is concerned. He has further submitted that the contention of the respondent corporation that the petitioners have waived their rights as earlier objections were not been taken is completely erroneous because the petitioners have clearly stated that they were not served with the notices of the draft Town Planning Scheme and ultimately this Court directed the respondent authority to decide the objections of the petitioners and so the contentions of the respondent Corporation that the objections are not to be decided in detail and each objection is not required to be dealt with and only opportunity of hearing is to be given is completely erroneous. Further, he has submitted that there cannot be any waiver against law and as per the decision of the Hon'ble Supreme Court in the case of Babubhai and Company v. State of Gujarat (Supra), the authority has to decide the objections of the petitioner objectively, therefore, he has submitted the that thee respondent Corporation is unnecessarily mixing the two stages and is not complying with the provisions of Page 15 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Section 68 read with Rule 33 of the Act & Rules in proper perspective. Further, he has submitted that the respondent corporation has contended that public interest has to be given precedence is also not applicable to the facts of the present case because in the present case, if the statute and the law laid down by the Hon'ble Supreme Court requires a thing to be done in a particular manner and requires the corporation to decide the objections in a specific manner, the corporation is required to do so and cannot take shelter of public interest and if the fair procedure is followed, public interest will even otherwise not be affected. Further, he has lastly submitted that the petitioners are residing over the places in question since number of years and that is the only place of residence available to the petitioners and the petitioners belong to poor Strata of Society and would be left without any accommodation if they are asked to vacate their houses and in the Town Planning Scheme, the petitioners are not given any final plot nor any compensation and, therefore also, the petition deserves to be allowed.
5.1 Per contra, learned advocate Mr. Dhaval Nanavati Page 16 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 appearing for the respondent corporation has submitted that earlier also, the petitioner has filed Special Civil Application Nos.16085 of 2012 and 10332 of 2012 which was adjudicated and decided by the Hon'ble High Court of Gujarat on 31.03.2015, hence the second writ on the same grounds which were earlier adjudicated and decided by the Court of Law is not maintainable and barred by the principles of res judicata as per the settle legal position of the judgment of the Hon'ble Apex Court in the case of Sardar Estates. v/s Atma Ram Properties Pvt. Limited & another, reported in 2009 (6) SCC 609. He has also relied on the judgment of the Hon'ble Apex Court in the case of K.K. Modi. v/s K.N. Modi & others, reported in 1998 (3) SCC 573 and submitted that in view of the principle of res judicata, such petition should not be entertained by this Court. He has further submitted that even on merit, the powers under Article 226 of the Constitution of India is not required to be exercised as the corporation is duty bound to implement the sanctioned Draft Town planning scheme for possession of T.P. roads and in absence of any challenge against such sanctioned Draft Town Planning Scheme, the petitioners are not entitled to object for Page 17 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 implementation of the Scheme. He has further submitted that as can be seen from record, Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad) covered the land in question. He has further submitted from the averments made in the petition by drawing the attention of this Court towards reply that on 04.05.2051, the respondent corporation has accorded of the personal hearing to the petitioner who have appeared in person on the appointed date before the third respondent corporation and and submitted their oral as well as written objections/submissions before the respondent No.3 and pleaded their case to their satisfaction and respondent No.3 has given them detailed hearing to their grievances and objections and after examining and considering the objections and grievances, the respondent has passed dated 04.05.2015 as directed by this Court and therefore, the present petition is relitigating the issues with the grounds on which earlier writ petition was filed by the very same writ petitioner and also raised same objections, which was raised before the second respondent. He has further submitted that both Grounds and objections were adjudicated by the Hon'ble High Court of Gujarat in Special Civil Application No.16085 of Page 18 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 2012 and in Letters Patent Appeal No.866 of 2015 filed by the similarly situated writ petitioners of Block No.505 Original Plot No. 144 Final Plot No. 144 situated at village Dindoli and as per the orders passed by the Hon'ble High Court of Gujarat in earlier litigation filed by the very writ petitioner, the third respondent has accorded opportunity of personal hearing on 04.05.2015, wherein the writ petitioner was personally remained present and therefore, the ground which are raised by the writ petitioners that they were not heard or respondents had taken arbitrary decision are taken with a view to frustrate the object and purpose of the scheme.
5.2 He has further submitted that as per the sanctioned Development Plan-2004 of Surat Urban Development Authority the existing 45 mts. road has been converted and introduced and included as 45 mts.
road in the Town Planning Scheme No.62 (Dindoli Bhestan Bhedwad). He has further submitted that in consultation with the Chief Town Planner under provision of section 41(1) of Gujarat Town Planning and Urban Development Act, 1976 on 27.01.2009 declared its Page 19 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 intension to prepare a draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad) and thereafter, on 13.02.2009, which was published in the Extra Ordinary Gazette - Part - II, Central Section of the Government of Gujarat and same was also published two Gujarati daily newspapers on 02.06.2009 as well, and after following all due procedures as laid down in Gujarat Town Planning and Urban Development Act - 1976 and the Gujarat Town Planning and Urban Development Rule - 1979 has called for public meeting on 05.12.2009, whereby suggestions and objections were called for from the public including the petitioners, after considering the suggestions and objections so received from the public at large, at this stage. Further, from the records of the corporation, it appears that the writ petitioners have not filed any objections before the Corporation to the Draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad) and thus have waived their right to object the proposed Draft Scheme and also of filling any objections to the Draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad and thereafter, the present respondent had prepared and submitted the Draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad), to the State Government on Page 20 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 07.05.2010 for according sanction under Section 48(2) of the Gujarat Town Planning and Urban Development Act.
5.3 He has further submitted that the State Government has accorded it's sanctioned to said Draft Scheme No. 62 under section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976. vide its notification bearing No.GH/V/111 of 2012/TPS-1410-2863-L dated 2nd July, 2012 issued by the Urban Development and Urban Housing Department of the State Government.
5.4 He has submitted that the State Government after according sanction to the Draft Scheme submitted by the SMC on 02.07.2012, vide its Gazette dated 16.07.2012 appointed a Town Planning Officer, T.P. Scheme, as a Town Planning Officer under section 50(1) of the Gujarat Town Planning and Urban Development Act, 1976 to finalize the Draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad). He has further submitted that Town Planning Officer, T.P. Scheme, Dindoli Bhestan Bhedwad as a Town Planning Officer under section 50(1) of the Gujarat Town Planning and Urban Development Act, Page 21 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 1976 to finalize the draft scheme No.62 (Dindoli Bhestan Bhedwad)) has prepared the the draft scheme No.62 and the block nos. 505 which were covered and included in the Town Planning Scheme No.62 (Dindoli Bhestan Bhedwad) and said block nos. 505 were given and allotted Original Plot No. 144/A and 144/8 (admeasuring 11301.00 sq. mts). The said Original Plot No. 144/A and 144/B subsequently given and allotted Final Plot Nos.144 (admeasuring 7141.00 sq. mts.) by the appropriate authority at the time of preparing, finalizing and declaring the Draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad). He has further submitted that in view of the fact that sanction given by the State Government to the Draft Town Planning Scheme No. 62 (Dindoli Bhestan Bhedwad), under section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976, the respondent as an implementing authority has issued the notices under Section 48/A and 68 read with Rule 33 of the Gujarat Town Planning and Urban Development Act to all the concerned owners and/or occupiers whose addresses are registered with the Authority Under Section 17 of the Gujarat Town Planning and Urban Development Act.
Page 22 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 5.5 He has further submitted that the said persons to whom the authority has issued notice have filed their objections to the said notices and opportunity of hearing was also awarded to them on 04.05.2015 as per the orders passed by the Hon'ble High Court of Gujarat in Special Civil Applications filed by this very writ petitioners and after hearing their Advocate.
5.6 He has further submitted that after hearing the writ petitioners, the reasoned order was passed on 04.05.2015.
5.7 He has relied on the judgment of the Hon'ble Apex Court in case of (i) M/s. Babulal & Company vs. State of Gujarat reported in AIR 1985 SC 613, (ii) Municipal Corporation vs. Jalaram & Sons , reported in AIR 1997 SC 31 and (iii) Keshavji Devji Patel vs. State of Gujarat and others, reported in 2007 (1) GLR 297 and has submitted that the the respondent have accorded opportunity of hearing to all the writ petitioners as per the directions by calling the writ petitioners for effective hearing and after hearing the writ petitioners and Page 23 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 considering the objections so filed and written submissions so filed by the writ petitioners, the respondent No.2 has passed detailed reasoned order on 04.05.2015 and also served copy of the order dated 04.05.2015 to all the writ petitioners and therefore, He has further submitted that the writ petition is otherwise barred by the principles of res judicata. He has further submitted that the writ petition is also clearly barred by provisions contained in Order 2 Rule 2(3) of the Civil Procedure Code.
5.8 He has further submitted that 45 meters road is passing through the said land which was revised sanctioned development plan of 2004 and that 45 meters road is practically practically a Ring road of about 25 kilometers and while preparing the Town Planning Scheme No.62 the said development road was shown as town planning scheme road looking to the physical situation on the site and the said road was made as town planning road in consonance with the development plan to the major extent.
5.9 He has further submitted that Division Bench of Page 24 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 this Court in Letters Patent Appeal No.866 of 2015, who have occupied the land in question have no authority to occupy and stay on the land bearing block No.505 which became OP No.144-A and 144-B and final plot No.144 and therefore, the present respondents are duty bound to implement the order of the Hon'ble High Court. In abovementioned matter, he has further submitted that the provisions of Section 48(A) clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government and the present scheme is also approved by the State Government and he has further submitted that again, before the scheme can be finalized under Section 52, it is required to give the notice following the procedure under Rule 26 and the representation could be made by the petitioner.
5.10 He has further submitted that considering his submissions and considering the judgments which are cited at the Bar in the present petition as well as the cognate matter No.8034 of 2015, the present petition deserves to be dismissed and therefore, he prays to dismiss the present petition.
Page 25 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 6.1 I have heard rival contentions of the respective parties. I have considered the possession receipt as well as agreement to sell. I have also gone though the impugned order passed on 04.05.2015.
6.2 It is clear from the rival contentions that it can be said that the petitioners have no locus to file the present petition in view of the judgment of the Hon'ble Apex Court in the case of Babulal Badriprasad Verma (supra), more particularly paras 40, 41 and 42 are relevant, which are reproduced herein below:
"40. It is not in dispute that:
(a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it.
(b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act.
41. In view of the above, the issue is whether it was open to him to assert his Page 26 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment.
42. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same."
Further, looking to the facts of the present case, where the petitioners have not pursued further of their rights of filing appropriate objection, the abovemention Page 27 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 judgment is directly applicable to the facts of the present case and it can be said that the petitioners have waived their respective rights at relevant stages.
6.3 Section 47 of the Act, 1976 is relevant, which reads as follows:
"47. Objections to draft scheme to be considered. - If within one month from the date of publication of a draft scheme, any person affected by such scheme communicates in writing to the appropriate authority, any objections relating to such scheme, the appropriate authority shall consider such objections and may at any time before submitting the draft scheme to the State Government as hereinafter provided modify such scheme as it thinks fit.
[Provided that the appropriate authority may, in such circumstances as may be prescribed and with the previous sanction of the State Government, reduce the aforesaid period of one month to fifteen days for inviting Page 28 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 objections to the draft scheme.]"
6.4 Further, considering the submission regarding the individual interest, it is noteworthy to refer the judgment of the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation and Another (supra) , more particularly para 55 is relevant, which reads as under:
"55. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal."
6.5 It can be held that a person suffers from hardship, it cannot be a ground for not giving effective grammatical meaning to every word of the provisions of Page 29 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 law if the language, used therein is unequivocal. It is also fruitful to refer the judgment of this Court in the case of Ramanbhai Hargovinddas Limbachina (supra), more particularly paras 3.3 and 3.5 are relevant, which are reproduced as under:
"[3.3] Considering section 48A of the Town Planning Act and as the land in question is needed for 36 meter road under the sanctioned Draft Town Planning Scheme, the provision of sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if sanctioned draft scheme were a preliminary scheme. Under the circumstances, when the land in question is forming part of Town Planning Road of 36 meter and therefore, by virtue of section 48- A(i) of the Town Planning Act, the said land shall vest absolutely in the appropriate Authority free from all encumbrances on the date on which the draft scheme is sanctioned under section 48(2) of the Town Planning Act and thereafter when the impugned orders are passed in exercise of powers under Sections 48A, 67 and 68 of the Town Planning Act and Rule 33 of the Town Page 30 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Planning Rules, the same cannot be said to be either illegal and/or contrary to the provisions of the Town Planning Act. The action of the respondent Corporation / appropriate Authority is absolutely in consonance with the provisions of the Town Planning Act more particularly section 48A of the Town Planning Act. Under the circumstances, the learned Single Judge has rightly dismissed the main Special Civil Application.
[3.5] It is required to be noted that even such objection could have been raised at the time when before the draft Town Planning Scheme was sanctioned, objections were invited. Nothing is on record that those persons who claim to be in possession prior to 2000 raised any objection against the draft Town Planning Scheme under which 36 meter road was proposed. Now, so far as those who have purchased the land in 2008 are concerned, as observed hereinabove, they would have no locus to raise any objection against the draft Town Planning Scheme as Page 31 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 neither they have any valid title as they purchased the premises in the March 2008 i.e. after the draft Town Planning Scheme came to be sanctioned in the year 2000 and after the land in question was vested absolutely in the appropriate authority for implementing the Town Planning Scheme and more particularly as mentioned insection 48A, 67, 68 of the Town Planning Act and Rule 33 of the Town Planning Rules."
6.6 Further, considering the abovementioned judgments and material available on the record, I am of the opinion that the authorities have not committed any error and it is clear from the order passed by the competent authority that it has not only assigned reasons for not accepting the objections/representations of the petitioners but also recorded relevant contentions in brief raised in the said representation. I find no illegality or infirmity in the impugned order passed by the authority concerned in rejecting the representation/objection.
6.7 I also found that having regard to the contention Page 32 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 regarding the non-application of mind by authority in considering the representation made by the petitioners and order is passed without assigning reasons, I found that authority concerned, while deciding the representation has considered the relevant submissions made by the petitioners about the case of the petitioners that no notice was served and non service of individual notice to the petitioners I found that in view of Section 14, 46 and 52 of the Act, 1976, the order is passed in accordance with law.
6.8 It is also relevant to note that the Town Planning Officer is appointed under Section 50 of the Act, 1976 and in the present case, Executive Engineer has followed the procedures laid down under Rule 26 of the 1979 Rules under the Town Planning Act. After considering the objections raised on the part of the petitioners the decision has been taken, which has attained finality under Section 67 of the said Act and have followed by them. It is also relevant to note that considering the judgment of the Division Bench of this Court in the case of Cosmos Development Corporation Vs. State of Gujarat through Secretary reported in Letter Patent Appeal Page 33 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 No.87 of 2011 dated 16.03.2016 , more particularly paras 12, 13, 16, 19, 20, 21, 23, 25, 27 and 28 are relevant, which are reproduced herein below:
"12 Per contra, Mr.Prashant Desai, learned senior counsel appearing for respondent Nos.2 and 3 would contend that the record of the case before the authority while considering representation made by the petitioner for variation of the scheme as prayed for under the provisions of Sections 70 and 71 of the Town Planing Act, averments made in the writ petition under Article 227 of the Constitution of India before the learned Single Judge and decisions taken in this regard by the authority including that on the representation made by the petitioner and procedure followed at every stage of the Act, 1976, would reveal that neither illegality nor any irregularity is committed by the competent authority at any stage. Taking the Court to the scheme of the Act, 1976, specially to provisions of Section 40 of chapter
(v), pertaining to Town Planing Scheme and making contents of a Town Planing Scheme, Page 34 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Section 42 making and publication of draft scheme, Section 43 and 44 about power of State Government to require appropriate authority to make a scheme and contents of drafting scheme, Section 45 reconstitution of plots and Section 46 disputed ownerships and objections to drafting scheme to be considered under Section 47 and 48, power of State Government to sanction drafting scheme and subsequently inserted provision under Section 48 (A) vesting land in appropriate authority which is akin to provisions of Sections 68 and 69 of the Gujarat Town Planing and Urban Development Act, 1976 and finally to Section 50 about appointment of Town Planing Officer, duty cast upon such Officer, namely, Rule 16 about publication of declaration under Section 41 read with Rule 17. Rule 18 of draft scheme and elaborate procedure to be followed by Town Planing Officer under Rule 26 while dealing with objection and forward the same to the Government that at no stage, any objection about clubbing of Revenue Survey Nos.609 and 607 was raised by the petitioner.Page 35 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022
C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022
13. It is submitted that in absence of any legal right accruing in favour of the petitioner, the very representation for varying scheme was out of the context of the scheme of the Act, 1976. It is submitted that procedure followed by the authority under the Act, 1976 of issuing notices to which reference is already made by the learned counsel for the petitioner, to all concerned, whose names were appearing in the revenue record or the authority could find out from other official record. From 1993 to 2000, various opportunities at different stages were given to those who were entitled to receive notices to which no objection was raised. In addition to above, it is submitted that when the authority concerned issued notice under provisions of the Act,1976, at no stage any reply was received to notice by the affected parties. Even a public notice is issued in widely circulated vernacular newspaper and thereafter, also no objection was received. According to Mr.Prashant Desai, learned senior counsel for the respondents while Page 36 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 dealing with the representation submitted by the petitioner pursuant to opportunity granted by the Court in the order dated 17.7.2009 passed in Special Civil Application No.7248 of 2009, after recording contentions raised by the petitioner in representation and referring to provisions of Section 70 of the Act, 1976, reasons are assigned which include pending disputes about title, ownerships and even possession of the subject land. It is further submitted that in the above scenario, rejection of the representation of the petitioner was not only on the ground of pending civil disputes or litigation before appropriate civil suit but also other reasons or grounds contained therein.
16. Further reliance is placed on the decision in the case of Kashiben Wd/o Pitamber Devchand and anr. v/s State of Gujarat and anr. reported in GLR 1989 (2) 1177, to contend that once a final scheme is prepared, it must be deemed to be part of Act and that original owner loses all rights over the land and he is liable Page 37 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 to be evicted and having no locus to even file a writ petition. Another decision relied in the case of N. Nanalal Kiklawala and anr. v/s State of Gujarat reported in AIR 2006 Supreme Court 1, in support of his submissions that statutory consequences would ordinarily follow and no stay can be granted when scheme received sanction in exercise of power under Section 65 of the Act. Thus, according to Mr.Prashant Desai, learned senior counsel appearing for the respondents in absence of any legal right of the petitioner to seek variation and fair and transparent procedure followed in exercise of statutory as well as executive power by the authority at every stage of preparing Town Planing scheme, in absence of merit, no interference is called for in this appeal filed by the petitionerappellant.
19. In the context as above reliance placed by Mr.Percy Kavina, learned Senior advocate appearing for the petitioner appellant on various provisions of the Act are considered and reproduced herein below:
Page 38 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 " Section2: Definition.
In this Act, unless the context otherwise requires ,
(i) "agriculture" includes
(a) horticulture;
(b) farming;
(c) raising of corps, fruits, vegetables, grass, fodder, other kind of cultivation; trees or any
(d) breeding and keeping live stock, including horses, donkeys, mules, pigs, fish, poultry and bees; and
(e) the use of land for any purpose which is ancillary to its cultivation or to any other agricultural purpose.
(xviii) "owner" in relation to any property, includes any person who is, for the time being receiving or entitled to receive, whether on his own account or on account of or behalf of, or for the benefit of, any other person or as an agent, trustee, guardian, manager or Page 39 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 receiver for any other person or for any religious or charitable institution, the rents or profits of the property; and also includes a mortgagee in possession thereof;
Section40: Making and contents of a town planning scheme.
Section41: Power of appropriate authority to resolve on declaration of intention to make scheme.
Section42.: Making and publication of draft scheme.
Section43: Owner of State Government to require appropriate authority to make scheme.
Section44: Contents of draft scheme.
Section45: Reconstitution of plots.
(1) In the draft scheme referred to in Page 40 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Section 44, the size and shape of every plot shall be determined, so far as may be, to render it suitable for building purposes and where the plot as already built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces.
(2) for the purpose of subsection (1), the draft scheme may contain proposals.
(a) to form a final plot by the reconstitution of an original plot by the alteration of its boundaries, if necessary;
(b) to form a final plot from an original plot by the transfer of any adjoint lands;
(c) to provide with the consent of the owners that two or more original plots which are owned by several persons or owned by persons jointly be held in ownership in common as a final plot, with or without alteration of boundaries;
(d) to allot a final plot to any owner dispossessed of land in furtherance of Page 41 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 the scheme; and
e) to transfer the ownership of a plot from one person to another.
(3) Whereunder clause (k) of subsection
93) of section 40, the purpose to which buildings or specified areas may not be appropriated have been specified, the buildings shall cease to be used for a purpose other than the purposes specified in the scheme within such time as may be specified in the final scheme and the person affected by the provision shall be entitled to compensation from the appropriate authority in the manner and according to the method prescribed:
Provided that in ascertaining such compensation the time within which the person affected was permitted to change the use shall be taken into consideration.
Section46: Disputed ownership .
Page 42 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 (1) Where there is a disputed claim to the ownership of any place 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 record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may e held on an application being made by the appropriate authority or the Town Planning Officer at any time prior to the date of 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 purpose 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 Page 43 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 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.
Section47: Objections to draft scheme to be considered.
Section48: Power of State Government to sanction draft scheme.
(1) The appropriate authority shall, within [three] months from the date of the publication of the draft scheme in the Official Gazette, submit the draft scheme with any modifications that may have been made therein under section 47 together with the objections which may have been communicated to it, to the State Government.
(2) If the State Government sanctions Page 44 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 such scheme, it shall in such may think fit, the State Government may, within [three] months from the date of its receipt, such notification, sanction such scheme with or without modifications or subject to such conditions as it may think fit to impose or refuse to sanction it.
(3) It the State Government sanctions such scheme, it shall in such notification state at what place and time the draft scheme shall be open for the inspection of the public.
Section48A: Vesting of land in
appropriate authority.
Section50: Appointment of Town
Planning Officer.
Section51: Duties of Town Planning
Officer.
Section65: Power of Government to
sanction or refuse to sanction the
Page 45 of 67
Downloaded on : Wed Sep 21 23:13:00 IST 2022
C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022
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
(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.
Page 46 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022
(a) the place at which the scheme shall be kept open for inspection by the public, and
(b) a date (xxxx) in which all the liabilities created by the scheme shall come into force:
(xxxx) Dated by Guj. Act No.11 of 2002 th words "(Which shall not be earley than one month after the date of publication of the notification)"
Provided that the State Government
may from time to time 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.Page 47 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022
C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Section67: Effect of preliminary scheme.
On the day on which the preliminary scheme comes into force-
(a) 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;
(b) 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.
Section70: Power to vary scheme on
ground of error,
irregularity or informality.
(1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in Page 48 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 writing to the State Government for the variation of the scheme.
(2) If on receiving such application or otherwise, the State government is satisfied that the variation required is not substantial, the State Government shall publish a draft on such variation in the prescribed manner.
(3) The draft variation published under subsection (2) shall stage every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of subsection (3) of section 40, the draft variation shall also contain such other particulars as may be prescribed.
(4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours.
(5) Within one month of the date of Page 49 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority.
(6) After receiving the objections under subsection (5), the Stage Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification;
(a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the Stage Government, or
(b) make the variation with or without modification, or
(c) refuse to make the variation.
Page 50 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 (7) From the date of the notification making the variation, with or without modification, such variation shall take effect as if it were incorporated in the scheme.
Section71: Variation of town planning scheme by another scheme.
Notwithstanding anything contained in section 70, a town planning scheme may at any time be varied a subsequent scheme made, published and sanctioned in accordance with the provisions of this Act.
Rule16: Publication of declaration under section 41.
(1) The declaration under subsection (1) of section 41 shall be published in the Official Gazette and shall also be published by means of an advertisement in one or more Gujarati newspapers circulating within the jurisdiction of the appropriate authority. The appropriate Page 51 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 authority shall cause copies of such advertisement to be pasted in the prominent places in or near the area included in the scheme and at the head office of the appropriate authority.
(2) Every advertisement published under subrule (1) shall contain the resolution of the appropriate authority in respect of the declaration under section 41 and shall announce that a copy of the plan of the area proposed to be included in the town planning scheme and the surrounding lands is kept open for inspection of the public at the head office of the appropriate authority during office hours.
Rule17: Meeting of owners and framing of tentative proposals.
For the purpose of making the draft scheme under section 42 the appropriate authority shall call a meeting or meetings of the owners of the lands Page 52 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 included in a town planning scheme by a public notice as well as by individual notice to every owner whose address is known to the appropriate authority and explain in such meeting the tentative proposals of the draft scheme for eliciting public opinion and suggestions on the said proposals. The ppropriate authority may take into consideration all such suggestions made and objections raised on the proposals for making the draft scheme under section 42.
Rule18: Publication of draft scheme under section 42.
(1) The draft scheme under section 42 shall be published by means of an advertisement in the Official Gazette and shall also be published in one or more Gujarati newspapers circulating within the area of the appropriate authority. The appropriate authority shall also cause copies of such advertisement to be pasted at the head office of the Page 53 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 appropriate authority and at other prominent places in or near the area included in the draft scheme. The advertisement shall state that a copy of the scheme is open for public inspection at the head office of the appropriate authority during office hours.
(2) Every advertisement published under subrule (1) shall announce that if within one month from the date of publication of the draft scheme in the Official Gazette any person affected by such scheme communicate in writing to the appropriate authority any objection relating to such scheme, the appropriate authority shall consider such objections before submitting the draft scheme to State Government under section 48.
Rule26: Procedure to be followed by
Town Planning officer under section 51
and under subsection (1) of section 52.
(1) For the purpose of preparing the Page 54 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 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 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 subrule (1), continue to carry on his duties as far as possible on working days and during working hours.
Page 55 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 (3) The TownPlanning 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 (fifteen days in the cases provided in the proviso to subrule(2) of Rule 18 of the said rules) 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.
Page 56 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 (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 therefore. 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 Page 57 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 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 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 Page 58 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 scheme in Form J and Form K as the case may be. The Town Planning Officer shall also inform the [State Government] about the publication of final scheme."
20. We have heard learned senior counsel for the respective parties and taken into consideration the submissions made by learned senior counsel for the petitioner about not affording any opportunity of hearing to the petitioner, we find that as per available official record, at every stage, the competent authority under the Act, 1976 has issued notices to those whose names were found in revenue or official record and such notices dated 26.2.1992, 10.5.1994, 12.9.1995, 7.1.1999 and later on notices dated 7.9.2007 and 10.9.2007, were issued to legal heirs of the original owners, societies, vendors, even Court receiver and the concerned District Collector, but as nowhere name of holder of agreement to sale was reflected in any official record and no notice was issued, thus, it cannot be said that the petitioner was either eligible or entitled to receive such notices. Even if Page 59 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 definition of Section 2 (xvi) (xviii) with regard to 'occupier' and 'owner' are broadly considered and interpreted, no right accrues to holder of agreement to sale the subject land, to complain about irregularity or any error or informality in the Town Planning Scheme and particularly in the facts of this case the very fact about title 'ownership' 'Possession', etc. was in dispute in a pending civil litigation. We find neither on the ground of merit namely, any error irregularity or informality nor on the aspect of pending civil disputes between the parties, the authority has erred in rejecting the representation.
21. There is a force in the arguments canvassed by Mr.Prashant Desai, learned senior counsel appearing for the competent authority of the Act, 1976 that not only individual notices were issued to affected persons, but public notices in vernacular daily newspaper were published and at no point of time any objection was lodged, though the span of taking decision by Town Planning Authority under Section 50 of the Act, 1976 Page 60 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 relate to 1992 to 2007. So far as dispute to be decided by the authority under Section 46 is concerned, it would not detain us any longer since simple language of the provision referred to a disputed claim to the ownership in the place of land included an area for which a Town Planning Scheme is to be made is only with regard to entry of right or mutation relevant to such disputed claim is either inaccurate or in conclusive and upon application being made by the party. The enquiry may be held on an application made by the appropriate authority. The State of Gujarat appointed the officer for the purpose of deciding such dispute, etc. and so is not the case as revenue records clearly revealed the name of original landlords and legal heirs and other occupiers. It may not be out of place to mention that by virtue of Section 48(A) about vesting of land in appropriate authority, it is clear that when a draft scheme has been sanctioned by the State Government under sub Section (2 ) of Section 48, all lands required by the appropriate authority for the purpose specified in clause Page 61 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022
(c), (f), (g) and (h) of sub Section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances and sub Section (3) of Section 48(A) further makes it clear that the provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme, as if sanctioned draft scheme were a preliminary scheme.
23. So far as the contention raised with regard to non application of mind to the representations submitted by the petitioner and order is passed without assigning reasons is concerned, we find that concerned authority, while deciding representation has reproduced main arguments and submissions made by the petitioner about not affording opportunity of hearing by Town Planning Officer and no notice was served and that Court receiver was not given any notice though the possession of the land was with Court receiver since 2008 and non service of individual notice to the petitioner and reliance placed on Sections 17, 46 and 52 of the Act, Page 62 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 1976.
25. Thus, it is clear that order passed by the competent authority has not only assigned the reasons for not accepting representation of the petitioner but also recorded all main and relevant contentions in the representation. We find no illegality in the above order passed by the authority in rejecting the representation and therefore, decision relied on by learned senior counsel for the petitioner in the case of Kartik Patel (supra) will have no applicability in the facts of this case. More so, while rejecting the petition, the learned Single Judge has not closed the rights in case if the petitioner is desirous to move the Civil Court to get appropriate order against the original owner or direction to the receiver to make an application to the competent authority.
27. Looking to the definition of Section 2 (xvi) 'occupier' and (xviii) 'owner', the appellant who holds only an agreement to sale of which no sale deed is Page 63 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 executed and for which disputes of civil nature are pending in the Civil Court, has no locus or right to seek variation under Sections 70 and 71 of the Act, 1976.
28. Thus, the authority under the Act 1976 has followed the procedure in accordance with the provisions of the Act.
1976 and Rules 1979 at every stage of declaration of the scheme, preparation of draft scheme, sanctioning of the preliminary scheme and no error, irregularity or informality exists and further as stated earlier, in absence of any legal right under the Act, 1976 of the petitioner to request for variation in the scheme already sanctioned cannot be entertained. We find no merit in appeal and is hereby dismissed."
6.9 In view of the provisions of Section 2(xvi) of the said Act pertains to 'occupier' and (xviii) pertains to "owner", in the present case, the petitioners hold only an agreement sale and possession receipt, for which, no sale deed is executed and it cannot be said that the Page 64 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 petitioners have any title or interest in view of the judgment of the Hon'ble Apex Court in the case of Yellapur Uma Maheswari and Anr. vs. Buddha Jagadheeswarwararao and Others reported in (2015) 16 SCC 787 and paras 15 and 36 are relevant. Therefore, it cannot be said that the authorities concerned have committed any error in deciding the objections.
6.10 In view of the above, it is relevant to note that in view of the judgment of the Hon'ble Apex Court in the case of Vimlaben Ramsagar Mishra Vs. Ahmedabad Municipal Corporation reported in 2009 SCC (Online) Gujarat 6413 and the judgment of this Court in the case of Kanjibhai Dayabh, the scheme becomes a part of the Act and therefore, it is appropriate that the writ petition is required to be dismissed as the land's area vests with appropriate authority under Section 48A (1) of the Act, 1976 for the public purposes and as per the provisions conferred under the provisions of Section 48A (3) of the Act qua laying down 45 metres town planning road, the scheme become part of the Act, and therefore, in view of the judgment of this Court in the case of Dharmendra Ravi Pratap Rajak Vs. State of Page 65 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 Gujarat rendering in Special Civil Application No.16256 of 2021, wherein this Court has observed that "Public interest will always have precedence over a private interest of the parties" and considering the judgment of the Hon'ble Apex Court in the case of Ramniklal N. Bhutta Vs. State of Maharashtra reported in AIR 1997 SC 1236, it is observed that the Court have to weigh the public interest vis-a-vis the private interest while exercising powers conferred under Article 226 of the Constitution of India indeed any of their discretionary powers, and therefore, considering the abovementioned judgment also, I found that there is no reason to interfere the order passed by the authority concerned.
6.11 Thus, the authority under the Act, 1976 has followed the procedure, in accordance with the provisions of the Town Planning Act, 1975 as well as under Rules of 1979 at every stage of declaration of the scheme.
Preparation of draft scheme, no error, irregularity or infirmity exists and as stated earlier in absence of any legal right under the Act, 1976, the petitioner cannot be permitted to create hindrances in process of implementation of the scheme. Therefore, I found that Page 66 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022 C/SCA/8563/2015 CAV JUDGMENT DATED: 21/09/2022 there is no perversity, arbitrariness or illegality committed by the authority concerned in the impugned order and there is no justifiable reason to interfere by exercising the powers under Section 226/227 of the Constitution of India, therefore, the present petition is found meritless.
7. In view of the above, the present petition is dismissed, with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 67 of 67 Downloaded on : Wed Sep 21 23:13:00 IST 2022