Gujarat High Court
Nirmalaben Kanaiyalal Shah & 6 vs State Of Gujarat & 3 on 29 September, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/10488/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10488 of 2015
With
SPECIAL CIVIL APPLICATION NO. 11983 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 11988 of 2015
==========================================================
NIRMALABEN KANAIYALAL SHAH & 6....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR AM PAREKH, ADVOCATE for MR RN JASKIA, ADVOCATE for the
Petitioner(s) No. 1 - 7
MR MANAN MEHTA, AGP for the State Government authorities in Special Civil
Application No. 10488 of 2015 and MR ROHAN YAGNIK, AGP for the State
Government authorities in Special Civil Application Nos. 11983 to 11988 of
2015
MR DEEP D VYAS, ADVOCATE for the Respondent(s) No. 3 - 4
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 29/09/2015
COMMON ORAL ORDER
1. Heard Mr. A.M. Parekh, learned advocate for Mr. R.N. Jaskia, learned advocate for the petitioners, Mr. Manan Mehta, learned Assistant Government Pleader and Mr. Rohan Yagnik, learned Assistant Government Pleader for the State Government authorities as well as Mr. Page 1 of 20 HC-NIC Page 1 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER Deep D. Vyas, learned advocate for respondent Nos.3 and 4.
2. In fact, the main matter is Special Civil Application No.10488 of 2014 and therefore, the facts and figures mentioned in the said writ petition are taken as basis of this order.
3. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: "[A] Your Lordships may be pleased to quash and set aside the summery evection order passed by the Assistant Estate Officer (South Zone) dated 23/03/2015 and also notification dated 17/12/2014 respondents no.1 qua the land of the petitioners [B] Pending admission hearing and final disposal of this petition, Your Lordships may be pleased to stay order dated 23/3/2015 passed by the respondents no.4 may be restrained form takeing possession of the their properties and direct the respondents no4 should not act as per the order dated 23/3/2015 by the respondents in the facts and circumstance of the case."
4. Facts which can be culled out from the record of the petition are as under: Page 2 of 20 HC-NIC Page 2 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER 4.1 The petitioners claimed to be owners of revenue survey Nos.35 and 36 of Isanpur which is within the area of Town Planning Scheme No.53, Isanpur. The record indicates that the State Government sanctioned draft Town Planning Scheme under Section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act") vide notification dated 21.7.1992. The record also indicates that thereafter, the Town Planning Officer came to be appointed as provided under Section 50(1) of the Act. The Town Planning Officer, while proceeding to constitute the preliminary Town Planning Scheme as provided under Section 52 of the Act, issued notices as provided under Rule 26 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules"). It appears from the record that as relied upon by the petitioner themselves, there is some controversy as regards ownership of the land in question which is subject matter of Civil Suits Page 3 of 20 HC-NIC Page 3 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER between the original owner and the present petitioners and even the Appeal from Orders were filed before this Court. However, in light of the prayers prayed for in these petitions, there is no correlation with the said litigation. It appears that the petitioners through one Radhaben Jagdishbhai filed objections before the Town Planning Officer on 24.1.2011. The petitioner has also annexed the communication dated 3.8.2011 addressed to one Anil Jani and others i.e. the present petitioners, whereby the Town Planning Officer, after considering the objections filed by the petitioners, threadbare gave reply to the petitioners and informed them about the reconstitution of the plots in question. The said order clearly spells out the decision taken by the Town Planning Officer as provided under Section 52(2) of the Act read with Rule 26 of the Rules qua the plots belonging to the petitioner in Paragraph 5 thereof, wherein it is stated as under: Page 4 of 20 HC-NIC Page 4 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER Revenue Original Area of Final Area Deduction Remarks Survey Plot No. original Plot of No. plot No. Final Plot 35 27 7082 27/1 6535 16.50% Final Plot No.27/1 and 36 3035 27/2 1256 27/2 have been 10117 27/3 656 proposed to be allotted 8447 on the land of original plot and Final Plot No.27/3 has been proposed to be allotted on the land of original plot No.97+104/6.
41 26 12039 26/1 8203 23.39% Final Plot No.26/1 has 26/2 1020 been proposed to be 9223 allotted on the land of original plot and Final Plot No.26/2 has been proposed to be allotted on the land of original plot No.86.
4.2 The said communication further recites that the decision taken by the Town Planning Officer along with the proposals and the objections shall be submitted to the State Government for its sanction. It is an admitted position that the State Government by a notification dated 17.12.2014 sanctioned the said Town Planning Scheme as provided under Section 65(3) of the Act. It further appears that on the scheme having been sanctioned, Ahmedabad Municipal Corporation, an appropriate authority issued notices to the petitioners as provided under Section 68 of the Act read with Rule 33 of the Page 5 of 20 HC-NIC Page 5 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER Rules and thereafter, by orders dated 23.3.2015 passed the final orders asking the petitioners to evict the premises. The petitioners, being aggrieved by the same, have challenged the action of the petitioners as per the prayers set out hereinabove.
5. Mr. A.M. Parekh, learned advocate for the petitioners has raised the following contentions: [i] That the Town Planning Officer did not communicate the decision.
[ii] That the State Government has not considered the decision taken by the Town Planning Officer.
[iii]That no hearing was provided to the petitioner. [iv] That the case of the petitioner is covered by the judgment of this Court in the case of Kishanbhai Hargovandas Patel & Anr. Vs. State of Gujarat & Ors., reported in 2010 (4) GLR 2867.
Page 6 of 20 HC-NIC Page 6 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER [v] That no compensation is given to the petitioners.
6. No other or further contentions and/or submissions are made by the learned advocate for the petitioners.
7. Considering the submissions made and on perusal of the record of the case, it clearly transpires that the objections which were filed by the petitioners through Mr. Anil Jani for and on behalf of the petitioners has been threadbare considered by the Town Planning Officer. It is not that the petitioner has not been given any Final Plot. The scheme as sanctioned provides that revenue survey Nos.35 and 36 were allotted original plot No.27 admeasuring 7082 sq. mtrs. and 3035 sq. mtrs. respectively, aggregating to 10117 sq. mtrs. and in lieu of that, the petitioners have been allotted Final Plot No.27/1 admeasuring 6535 sq. mtrs., Final Plot No.27/2 admeasuring 1256 sq. mtrs. and Final Plot No.27/3 admeasuring Page 7 of 20 HC-NIC Page 7 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER 656 sq. mtrs., total aggregating to 8447 sq. mtrs. The decision taken by the Town Planning Officer also reflects that by way of reconstitution in the Town Planning Scheme, there is deduction to the tune of 16.50% in the area of original plot.
8. Mr. Deep D. Vyas, learned advocate for respondent Nos.3 and 4 appearing on caveat also produced the part plan for perusal of the map, which indicates that Final Plot Nos.27/1 and 27/3 are more or less given on the original plot belonging to the petitioners, whereas as per the sanctioned Town Planning Scheme, as the Town Planning road passes through the original plot area, the petitioners have been given third Final Plot by way of Final Plot No.27/2 admeasuring 1256 sq. mtrs. The same is also reflected in the copy of FormF in the preliminary scheme as per the record of the Ahmedabad Municipal Corporation, which was perused by this Court. The notification annexed with the petition dated 17.12.2014 indicates Page 8 of 20 HC-NIC Page 8 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER that the preliminary scheme is sanctioned under Section 65 of the Act and thus, the scheme has become part of the Act. Once the scheme is sanctioned, it is boundant duty of the Ahmedabad Municipal Corporation as an appropriate authority to implement the same in accordance with law, as held by the Apex Court in the case of The Municipal Corporation for Greater Bombay & Anr. Vs. The Advance Builders (India) Pvt. Ltd. & Ors. reported in AIR 1972 SC 793. The record indicates that the respondent - Corporation has rightly issued notice as provided under Section 68 of the Act read with Rule 33 of the Rules and after considering the objections raised by the petitioners, the respondent Corporation has passed reasoned orders on 23.3.2015. The contentions raised by the learned advocate for the petitioners that the petitioners were not heard and that their objections were not considered is contrary to the petition itself. The learned advocate for the petitioners also Page 9 of 20 HC-NIC Page 9 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER made an attempt to point out that earlier the Corporation had taken actions under Section 260(1) of the Act which is as late as on 28.10.2004. The powers under Section 260 of the Act are resorted to by the respondent authorities as some unauthorized construction was noticed and in opinion of this Court, it has nothing to do with the procedure of Town Planning Scheme or its sanction. The learned advocate for the petitioners has also relied upon the judgment of this Court in the case of Kishanbhai Hargovandas Patel (supra), wherein this Court has in Paragraph 15 observed as under: "15. Thus, considering the aforesaid Scheme of the Act while preparing the Draft Town Planning Scheme; sanction it by the State; preparing the Preliminary Town Planning Scheme and sending it to the State Government for its sanction, the persons affected by such Scheme, are required to be served with the notices in FormF, FormG. FormH, FormI, FormJ and FormK and at every stage of Draft Scheme as well as Preliminary Scheme, objections and suggestions are invited in the prescribed form the affected persons likely to be affected by such Scheme. Page 10 of 20 HC-NIC Page 10 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER Thus, if at the stage of Draft Scheme while preparing the Redistribution and Valuation Statement in FormF, if a land owner/person is proposed to be allotted a particular Final Plot, his objections and suggestions are invited. After the Draft Town Planning Scheme is sanctioned by the State Government, the Town Planning Officer is required to publish a notice in FormH in the official gazette and in one or more Gujarati newspaper circulating within the area of the appropriate authority specifying the matters which are proposed to be decided by him and state that all the persons who are interested in the plots or are affected by any of such matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of 20 days from the publication of notice in the official gazette and before even making and/or preparing Preliminary Town Planning Scheme, the Town Planning Officer is required to give every person interested in any land affected by any of the particular, sufficient opportunity of stating their views and the Town Planning Officer shall not give give any decision till he has duly considered their representation, if any.
Therefore, if after the Draft Town Planning Scheme is sanctioned by the State Government a particular person/land owner is proposed to be allotted Final Plot A, such person/land owner has a right to submit his objections and suggestions against the proposed allotment of said Final Plot and the Town Planning Officer is required to consider the Page 11 of 20 HC-NIC Page 11 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER same at the time of making or preparing Preliminary Town Planning Scheme and if during such proceedings it appears to the Town Planning Officer that there are conflicting claim or any difference of opinion with regard to any part of the scheme, the Town Planning Officer is required to record a brief minutes setting out the points at issue and the necessary particulars, and is required to give a decision with the reasons and all such minutes is required to be appended to the Scheme. The Town Planning Officer is required to record and enter in the scheme every decision given by him and is required to send all objections and suggestions received by him, if any, along with the Preliminary Town Planning Scheme prepared by him and sent it to the State Government for its sanction. As stated above, even after the Preliminary Town Planning Scheme is made and prepared by the Town Planning Officer which was being submitted to the State for its sanction, a person/land owner is required to be served with notice in FormJ i.e. the decision taken by the Town Planning Officer while preparing and making the Preliminary Town Planning Scheme which was being submitted to the State Government for its sanction i.e. with the particulars of original Survey Number; original Plot Number; area of Original Plot in square meters; Plot Number of Final Plot allotted; area of Final Plot allotted in square meter and remarks, if any. Suppose in a given case under the Draft Town Planning Scheme a land owner is proposed to be allotted Final Plot A which came to be sanctioned by the State Government and after Page 12 of 20 HC-NIC Page 12 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER considering the objections and suggestions, if any, by any aggrieved person that particular owner is proposed to be allotted Final Plot B and at that stage that owner who proposed to be allotted Final Plot B is informed that under the Preliminary Town Planning Scheme it is proposed to allot him Final Plot B in lieu of his original Survey Number Original Plot Number and thereafter, while sanctioning such Preliminary Town Planning Scheme, the State Government decides to modify the Preliminary Town Planning Scheme proposed by the Town Planning Officer i.e. instead of Final Plot B under the Preliminary Town Planning Scheme proposed by the Town Planning Officer, the State Government while sanctioning the Preliminary Town Planning Scheme takes a decision to allot another Final Plot i.e. Final Plot C, the question whether at that stage and before any decision by the State Government while sanctioning the Preliminary Town Planning Scheme with modification, as stated hereinabove, any hearing/opportunity is required to be given or not? Considering the Scheme of the entire Town Planning Act, as stated hereinabove such an opportunity is required to be given to such owners who are are likely to be affected by such modification. An owner/person adversely affected by such modification of Preliminary Town Planning Scheme suggested by the Town Planning Officer is required to be given a fair hearing/opportunity, more particularly when at every stage at the time of Draft Town Planning Scheme and/or preparing Preliminary Town Planning Scheme such a land owner / person is informed with respect to Page 13 of 20 HC-NIC Page 13 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER proposed Final Plot to be allotted and his objections and suggestions are invited which are to be dealt with by the Town Planning Officer."
9. The learned advocate for the petitioners, however, has not been able to even remotely point out and on the contrary, on a specific question asked by this Court, it was pointed out candidly by the learned advocate for the petitioners that no objections whatsoever was filed by the petitioners before the State Government and therefore, in the facts of this case, the ratio laid down by this Court in the case of Kishanbhai Hargovandas Patel (supra), whereby it is provided that while sanctioning the scheme under Section 65 of the Act, if there is any modification or that even anybody is likely to be affected by such modification, an opportunity of being heard to the petitioners would not be applicable in the facts of this case. As far as procedure prescribed under the Act and as held by the Apex Court in the case of M/s. Babulal & Co. & Page 14 of 20 HC-NIC Page 14 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER Ors. Vs. State of Gujarat & Ors., reported in 1985 (2) GLR 883 is concerned, it clearly transpires from the contentions raised by the petitioners themselves that the said procedure is already followed by the respondent authorities. In addition to that, it appears that even the State Government, while considering the application filed by the petitioners at the stage of the preliminary scheme as provided under Section 52 of the Act, was pleased to direct the Town Planning Officer as well as the Corporation to make proper investigation. Even at the cost of repetition, it requires to be noted that by a communication/order dated 3.8.2011, the Town Planning Officer has also considered the said communication of the State Government dated 22.7.2011 and has threadbare considered all the objections which were raised by the petitioner through Mr. Anil Jani and has taken a conscious decision which is taken into consideration by the State Government while sanctioning the Page 15 of 20 HC-NIC Page 15 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER scheme even under Section 65 of the Act. The learned advocate for the petitioners has not been able to point out that there is any procedural error committed either by the Town Planning Officer or the Ahmedabad Municipal Corporation as well as the State Government in constituting the preliminary scheme or sanctioning of the same or its implementation.
10. It is an admitted position that the scheme is sanctioned under Section 65 of the Act. Once the Town Planning Scheme is sanctioned, the same becomes part of the Act and the same cannot be challenged on the grounds and contentions which are raised by the learned advocate for the petitioners as decided by catena of decisions of this Court. At this juncture, it would be appropriate to refer to the judgment of Shilpa Park Co. Op. Housing Society Ltd. Vs. Surat Urban Development Authority & Ors., reported in 1996 (2) GLR 707, wherein while considering the said aspect, this Court has observed thus: Page 16 of 20 HC-NIC Page 16 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER "11. In view of the aforesaid, the position emerges is thus (1) In view of the substitution of subrule (3) of Rule 21 of the Bombay Town Planning Rules, by Notification dated 30.5.1974, no special notice is required to be given to every individual. Notice is required to be given only in cases where statutes requires to do so by specific provisions, (2) Once the final scheme is framed and sanctioned, in view of the provisions of subsection (3) of section 65, it is immune from challenge except on the following grounds:
(i) Where there is any transgression of jurisdiction of the authorities concerned,
(ii) Where the scheme finally emerged is totally inconsistent with the Act and
(iii) Where the minimum statutes are essential and are not complied with and as such there is fundamental breach resulting into total lack of jurisdiction."
11. From the contentions raised by the learned advocate for the petitioners, no such transgression of jurisdiction can be culled out. Similarly, the petitioners have not been able to even remotely show that the statutory Page 17 of 20 HC-NIC Page 17 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER procedure as prescribed under the Act and the Rules is not followed and that the petitioners are also not in a position to show that the scheme is totally inconsistent with the Act and therefore, challenge to the notification dated 17.12.2014, whereby the scheme came to be sanctioned is meritless and the same deserves to be quashed and set aside.
12. The learned advocate for the petitioners also asserted before this Court that no compensation is granted to the petitioners. However, the learned advocate for the petitioners as well as the learned advocate for the respondents have pointed out that still the final scheme is not sanctioned. As provided under Section 52(2) of the Act, the preliminary scheme is drawn by the Town Planning Officer and the same is sanctioned, as observed hereinabove, which can be taken care of and the compensation is part of a final scheme and therefore, such a contention raised, while challenging the preliminary scheme which is duly sanctioned, is Page 18 of 20 HC-NIC Page 18 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER dehors the provisions of the Act. The Division Bench of this Court in the case of Kashiben Wd/o Pitamber Devchand & Anr. Vs. State of Gujarat & Anr. reported in 1989(2) GLR 1176 has held that once the final scheme is prepared, it must be deemed to be part of the Act and therefore, the appropriate authority has rightly initiated the proceedings for implementation of the same.
13. At last, the learned advocate for the petitioners pointed out that as far as Final Plot No.27/2 is concerned, the possession of the same is not yet given to the petitioners. In light of the aforesaid therefore, the respondent Corporation is hereby directed to implement the said Scheme in accordance with law as per the sanctioned scheme within a period of six months from today.
14. Resultantly, the petitioners are not entitled to any of the prayers prayed for, except the aforesaid directions. The petitions therefore Page 19 of 20 HC-NIC Page 19 of 20 Created On Wed Oct 07 00:16:21 IST 2015 C/SCA/10488/2015 ORDER fail and are hereby dismissed. There shall be no order as to costs.
(R.M.CHHAYA, J.) mrp Page 20 of 20 HC-NIC Page 20 of 20 Created On Wed Oct 07 00:16:21 IST 2015