Gujarat High Court
Bharatbhai Ishwarbhai Patel & 3 vs Page 1 Of 67 on 20 October, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/LPA/2449/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2449 of 2010
In SPECIAL CIVIL APPLICATION NO. 9943 of 2010
TO
LETTERS PATENT APPEAL NO. 2452 of 2010
In
SPECIAL CIVIL APPLICATION NO. 9946 of 2010
With
SPECIAL CIVIL APPLICATION NO. 10819 of 2011
With
SPECIAL CIVIL APPLICATION NO. 9806 of 2011
With
SPECIAL CIVIL APPLICATION NO. 15115 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
BHARATBHAI ISHWARBHAI PATEL & 3....Appellant(s)
Versus
Page 1 of 67
HC-NIC Page 1 of 67 Created On Thu Oct 22 02:30:17 IST 2015
C/LPA/2449/2010 CAV JUDGMENT
STATE OF GUJARAT THROUGH SECRETARY & 4....Respondent(s)
==========================================================
Appearance:
MR YATIN OZA, SR. ADV. with MR APURVA R KAPADIA, ADVOCATE for the
Appellant(s) No. 1 - 4
MR PRASHANT DESAI, SR. ADV. with MR KAUSHAL D PANDYA and MR UI
VYAS, ADVOCATES for the Respondent(s) No. 2 - 3,5
MR RUTVIJ OZA , ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1 appearing in Letters Patent Appeals
MR JAIMIN GANDHI, ASST. GOVERNMENT PLEADER for Respondent No.1
appearing in Special Civil Applications.
NOTICE SERVED for the Respondent(s) No. 4
==========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/10/2015
CAV JUDGMENT
(PER : HONOURABLE MS JUSTICE SONIA GOKANI)
1. These appeals arise from the order and judgment of the learned Single Judge rendered in Special Civil Application Nos.9943 to 9946 of 2010. Other petitions were clubbed with these Letters Patent Appeals in view of challenge to the vires of Section 48-A of the Gujarat Town Planning Act, they also raise question against proposed town planning road on other issues and therefore, they were directed to be heard along with these Appeals vide order dated 1.10.2014. As all the matters involve identical questions of facts and law, they are being decided by this common order and judgment. Page 2 of 67 HC-NIC Page 2 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT For the purpose of adjudication, facts are drawn from Special Civil Application No.9943 of 2010 so also from Special Civil Application No. 15115 of 2010. Brief facts: (Special Civil Application No.9943 of 2010)
2. The petitioners have preferred this petition under Article 226 of the Constitution challenging the notice dated 2.8.2010 issued by respondent No.3-Deputy Commissioner under the provisions of Bombay Provincial Municipal Corporation Act, 1949 ("the BPMC Act" for short). The petitioners reside in their houses situated at Dabholi gamtal of Surat city bearing Survey Nos.253,256,246 to 259, 703 to 705 of Panch Falia street of Dabholi.
3. It is the say of the petitioners that Surat Urban Development Authority ("SUDA" for short) introduced development plan in respect of the entire area in the year 1986, excluding the area of gamtal of Dabholi. On completion of 10 years, development plan was revised and the State Government sanctioned the said revised Page 3 of 67 HC-NIC Page 3 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT development plan in the year 2004. While framing the Town Planning Scheme, the Town Planning Authority prepared the draft town planning scheme No.51(Dabholi) in such a manner that the houses of the petitioners were brought in a road line. While preparing a development plan and revised development plan, the authority was conscious and planned appropriately so as to exclude gamtal area in the development plan and thereby saved the legitimate construction of the petitioners.
4. It is the say of the petitioners that while preparing the town planning scheme and finalizing the same, under section 48-A of the Gujarat Town Planning & Urban Development Act (" the Town Planning Act" fort short), alignment of the road was changed and the same was shifted a little on the northern side. Resultantly, the houses of the petitioners which are more than 100 years old would, in the process, would be demolished rendering the petitioners homeless. It is the stand of the petitioners that the provisions of Town Planning Act would not be applicable to the houses situated in gamtal, and therefore, by applying the BPMC Act, a public notice came to be issued by Page 4 of 67 HC-NIC Page 4 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Surat Municipal Corporation under section 210 (1)(a) of the BPMC Act on 3.6.2010, wherein it declared the road line fixed by the Municipal Commissioner, by virtue of his powers under the BPMC Act in respect of City Survey Nos.246,247 to 257,704 and 705. The very next day on 4.6.2010 under section 212(1)(a) of the BPMC Act, the Deputy Commissioner[P&D] issued a notice to the petitioners. Objections were raised and representations were made to the authorities. The standing committee resolved on 8.7.2010 that the petitioners be called upon to remove their houses within a period of 7 days for the Corporation to initiate actions under sections 212(3) and 212(4) of the BPMC Act.
5. Pursuant thereto, the Deputy Commissioner, Surat Municipal Corporation issued a notice dated 2.8.2010 stating therein that the objections raised by the petitioners could not be considered at the stage at which they have been given. Thus, the main thrust on the part of the petitioners is that the shift in alignment of the road, subsequent to the revising of the development plan 10 years after the original development plan was published, cannot be sustained. Page 5 of 67 HC-NIC Page 5 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Therefore, by preferring present Letters Patent Appeal the following reliefs are sought:-
"18. In view of the facts and circumstances, the petitioners pray that -
A] Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ order or direction, quashing and setting aside the notice at Annexure-A dated 2-8-2010, the notice dated 4-6-2010 issued under section 212(1)(A) as well as the notice dated 3-6-2010 published in the local newspaper in purported exercise of powers under section 210; and also quash the Draft Town Planning Scheme No.51 on the ground of colorable exercise of power by the respondent authority and grossest of violation of principles of natural justice, in the facts & circumstances of the case to the extent it affects the rights of the petitioners;
B) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay the notice at Annexure-A dated 2-8-
2010, the notice dated 4-6-2010 issued under section 212(1)(A) as well as the notice dated 3-6-2010 published in the local newspaper in purported exercise of powers under section 210; and also stay the implementation, operation and execution of the Draft Town Planning Scheme No.51, sanctioned under section 48A to the extent it affects the rights of the petitioners;
C) Grant any other and further relief as the nature and circumstances of the case may require."
6. In the affidavit-in-reply filed by the Deputy Municipal Commissioner (P&D), on issuance of notice it is contended inter alia that road in question shown in the development plan, as public road of 36 meters is touching the bridge on the river Tapi. The said road Page 6 of 67 HC-NIC Page 6 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT connects the bridge which is under construction and the said road is an approach road to the bridge. The Corporation declared its Town Planning Scheme No.51(Dabholi) dated 18.6.2005. Though the entire road is shown to be 36 meters wide in the development plan, looking to the present need of the situation, on the said road, 24 meters have been provided on the site in question of the said town planning scheme with a view to minimize the loss of the property which is in existence. It is categorically denied that to give benefit to certain sections of people, special curvature is given and a reduction is made from 36 meters to 24 meters. It is further the say of the respondents that the petitioners are situated in the gamtal of Dabholi and the said portion is not included in the town planning scheme, and therefore, the Corporation has prescribed the road line as per section 210 of the BPMC Act which has been published in the newspaper on 3.6.2010 and after following the due procedure, notice dated 4.6.2010 under section 212(1)(a) of the BPMC Act issued to the petitioners and after receiving the objection of the petitioners on 10.6.2010, hearing was given to them. Page 7 of 67 HC-NIC Page 7 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT
7. Notice under section 212(2) of the BPMC Act came to be issued on 2.8.2010, and therefore, present petition came to be filed on 17.8.2010. The procedure of implementation, as far as road of 24 meters is concerned, is already started and possession of majority portion is taken over. It is their say from the photographs and it could be gathered that the road being constructed connects Dabholi bridge to the rest of the city area and the portion of the constructed area owned by the petitioners remains to be connected. Even the draft scheme had been sanctioned on 15.10.2008 and as per section 48-A of the Town Planning Act, once the draft scheme is sanctioned, the Corporation can take possession of the land for the road purpose, which it has already done and construction of the road has already started from June, 2010. The total road is around 2.3 kms. It is emphatically denied that there is any variation in the development plan while making the town planning scheme under section 40(1) of the Town Planning Act. The town planning scheme can be made, regard being had to the proposal made in the final development plan, if any, of the road to be laid by the Corporation, which is in consonance with the proposal in the development plan. Page 8 of 67 HC-NIC Page 8 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT It is further the say of the Corporation that there are various constructions made by many parties on Revenue Survey Nos.135,136-A,137-A,124(1),124(2),174-A and 174-B and their plans were sanctioned after taking the opinion of SUDA where the road width is shown as 24 meters. The petitioners would be entitled to compensation, according to the respondents, as per section 216 read with sections 389 and 390 of the BPMC Act. If the petitioners do not vacate the same, the entire road of 2.3 kms would be affected.
8. Learned Single Judge vide common oral order dated 12.10.2010, after hearing both the sides, dismissed the Special Civil Application No. 9943 of 2010 and allied petitions on the ground that the action of the respondent authorities is in accordance with law and no case was made out with regard to the action taken by the authority.
9. The petitioners aggrieved by the same, have chosen to challenge the same by way of these Letters Patent Appeals.
10. The grievance made by the appellants is to the effect that shifting of the road was purely in Page 9 of 67 HC-NIC Page 9 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT colourable exercise of powers and straight road was laid in the revised development plan of 1996 which was sanctioned in 2004. The authority had already applied the mind and made the road. There was no necessity at all to change the alignment of the road and destroy the houses of the appellants by exercising the power. It is the say of the appellants that although the appellants were called by the Corporation, they were never given a hearing. No opportunity at all had been given to the present appellants nor had their case been considered at all. In absence of any justification of the change in alignment of the road, their illegal and autocratic exercise of powers requires interference. It is their say that originally the straight road was of 36 meters. Now by shifting the alignment, they have reduced the width of the road to 24 meters and also made a major shift in the alignment. It is alleged that this would save the land of some builders who are being supported by the Corporation.
11. By giving the chronology of events upto the issuance of notices under sections 210,212(1)(a) etc., it is emphasized that notice issued by the Corporation Page 10 of 67 HC-NIC Page 10 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT is a mere empty formality. Without exercising the power of variation under section 19 of the Town Planning Act, it is not proper on the part of the Corporation to change the alignment of the road from 36 to 24 meters, which is surely not in the interest of the common man nor is it benefiting the citizens at all. On the contrary, the benefit flows to the builders and the officers of the Corporation, and therefore, in absence of any necessity for deviating from the original plan and giving a curve to such road is, on the contrary, going to create a lot of hazards.
12. While disposing of the Civil Application for stay being Civil Application No.14232 of 2010, this Court vide its order dated 13.12.2012 raised a question whether section 212 of the BPMC Act can be made applicable in a case where the road is proposed much after the construction of number of buildings and whether without the acquisition of land, the Corporation can demolish any building. Brief Facts of Special Civil Application No. 15115 of 2010
13. The petitioners in Special Civil Application No.9806 of 2011 and also in Special Civil Application Page 11 of 67 HC-NIC Page 11 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT No.10819 of 2011 had challenged the vires of section 48-A of the Town Planning Act. This Court, vide its order dated 20.1.2012, concluded the issue of constitutional validity of section 48-A of the Act, 1976.
13.1 It noted the decision rendered by this Court in the case of Govindbhai Hirabhai Surati and others vs. State of Gujarat and others reported in 2003(2)GLR 950 and concluded that section 48-A of the Town Planning Act provides for vesting of land in appropriate authority upon draft scheme being sanctioned, however, it does not take away the valuable rights of owner of such land as provided under sections 49 to 67 of the Town Planning Act and section 48-A of the Town Planning Act is an answer to such contention, as clause (2) to section 48-A makes it abundantly clear that the right of the owner of the land being vested in the appropriate authority under sub-section (1), shall not be affected in any manner. In other words, the Legislature itself has taken care to protect the right of the owner of the land which vests in the appropriate authority, upon draft scheme being sanctioned by the State Government. The Court Page 12 of 67 HC-NIC Page 12 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT held that challenge to the Constitutionality of section 48-A of the Town Planning Act must fail.
14. This group of petitioners are plot holders of Bhavaninagar Society situated at Revenue Survey No.125-B, Taluka:Choriyasi, District:Surat. They have challenged the variance in final development plan by way of draft Town Planning Scheme No.51(Dabholi) without following the due procedure. According to them, no road was passing through Bhavaninagar Society. Without following the due procedure of variation as prescribed under section 19 of the Town Planning Act, the respondents attempted to vary the final development plan, whereby the road is now proposed to be laid down from Bhavaninagar Society. This act is without authority and would result in demolition of the houses of the petitioners. According to these petitioners, SUDA introduced the development plan in respect of the entire area in 1986 excluding the area of gamtal of Dabholi. On completion of 10 years, the development plan was revised and the State Government sanctioned the revised development plan in 2004. The final development plan, if adhered to, the petitioners have no grievance. However, while framing the town planning scheme, the town planning authority Page 13 of 67 HC-NIC Page 13 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT prepared the draft Town Planning Scheme No.51, in such manner that the same brought the houses of the petitioners in a road line. It is the grievances of the petitioners that ordinarily the planning made under the development plan does not get changed, more particularly, the shifting of the road would not arise. The road which was passing through Dabholi- Jahangirpura bridge to Yamuna Park, while preparing the town planning scheme and making it final under section 48-A of the Town Planning Act, the alignment of the road has been changed and is shifted slightly on northern side. Resultant effect is that the houses of the petitioners which were there since for more than 25 years have been affected. The draft town planning scheme was submitted to the Government on 12.9.2006. The same was sanctioned on 15.10.2008. Thus, what has been objected to is the passing of the road of 24 meters in the town planning scheme after variation, whereas in the original final development plan, the road of 36 meters also was not passing through the land of the petitioners. The grievance of the petitioners is that on the southern side there is Plot No.135 which is reserved land for water works where illegal constructions are put up. Thus, exact Page 14 of 67 HC-NIC Page 14 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT shape of the road is generally not expected. The objections were invited with respect to finalizing such draft town planning scheme and the Trust of the petitioners gave objections on 25.8.2010. The petitioners signed one of the forms for allotment of alternative plots, which according to them cannot take away their fundamental rights of challenging the action of the respondents. Earlier Special Civil Application No.10575 of 2010 came to be moved which was withdrawn for filing the petition in individual names.
15. Thus the emphasis is on complete by-passing of provisions of section 19 of the Town Planning Act. It is emphasized that once the final development plan is sanctioned, the same cannot be varied without following the procedure under section 19 of the Act. The variation being substantial in nature, both sections 48-A and section 19 of the Town Planning Act shall have to be considered. As no opportunity of hearing is given before making a change or variation in final development plan, interference of the Court is warranted.
16. Herein essentially the challenge is made to the Page 15 of 67 HC-NIC Page 15 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT draft Town Planning Scheme No.51 in the prayer clause as well.
17. This has been replied to by the other side. According to the respondent the Town Planning Scheme No.51 has been sanctioned by the State Government vide notification dated 15.10.2008. The land in dispute has been included in the draft town planning scheme under section 48-A of the Town Planning Act. Such town planning scheme has been sanctioned by the State Government, and therefore, the Corporation can take possession, as required under section 48-A of the Town Planning Act, as the land is needed for the road purpose. Once the draft scheme is sanctioned, under sub-section (2) of section 48-A, all the lands required by appropriate authority for the purpose specified under sub-section (3) of section 40 shall vest absolutely in appropriate authority free from all encumbrances. Moreover, as per sub-section (3) of section 48-A, sections 68 and 69 shall apply mutatis mutandis to sanctioning the draft development scheme as if the sanctioned draft schemes were preliminary schemes, notices have been already issued to the owners under sections 48-A, 67 and 68 read with Rule Page 16 of 67 HC-NIC Page 16 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT 33 of the Rules. Town planning scheme proposed in the revised sanctioned development plan was in 2004.
18. In this reply, the respondents have also stated that the road in question was 36 meters. The alternative accommodation is being provided by the Corporation, as per the policy for the accommodation of those persons affected by the developmental work of city of Surat, if they provide a proof that they were residing there on or before 20.7.2007. Majority of the people affected by the development work under the draft Town Planning Scheme No.51 have availed the benefit of alternative accommodation and Corporation is still ready to provide the alternative accommodation. The road in question in the development plan is a public road of 36 meters touching the bridge on the river Tapi. It connects the bridge which is under construction and which is an approach road to the said bridge. The majority portion is already constructed, according to the respondent. Once under section 48-A of the Town Planning Act, the draft scheme is sanctioned, the Corporation would be entitled to take possession of the land which is meant for road purpose. The Corporation has already taken Page 17 of 67 HC-NIC Page 17 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT the possession and started construction work from June, 2010. The total road is around 2.3 kms. All allegations with respect to corruption have been categorically denied.
19. The affidavit-in-rejoinder have also been filed. Emphasizing that the present land in question was not forming part of the notice, declaring the intention to frame town planning scheme, notice for eviction is given as if the land is covered under the town planning scheme, therefore such action is without jurisdiction. It is emphasized that the draft town planning scheme is prepared illegally and in violation of the Act to suit certain persons. The petitioners belong to back-ward class and evicting the petitioners would affect more than 100 families.
Oral Submissions:
20. Mr.Yatin Oza, learned Senior Advocate appearing with Mr.Apurva Kapadia for the appellants-petitioners fervently made his submissions and took us through the scheme of the Town Planning Act. It is his say that the town planning scheme cannot exist without touching the development plan and the development plan requires Page 18 of 67 HC-NIC Page 18 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT to be changed only exceptionally. It is further urged that only under certain contingency, the plan gets modified after following necessary procedures and the town planning scheme requires to be yielded to development plan. There is a superiority of development plan over the town planning scheme. It is further urged that in the development plan, the straight road was of 36 meters. By shifting the alignment of the road under the town planning scheme, the reduction of the width is made from 36 meters to 24 meters without any rhyme or reason. It is his say that there is gross violation of principles of natural justice. There was, in fact, no necessity for any change. He urged that no hearing opportunity had been availed. The Court must intervene as it is in colourable exercise of power.
21. Learned advocate Mr.Majmudar appearing for some of the petitioners has urged that the Chief Town Planner has not been consulted and again, there has to be not only a meaningful consultation, but, also a mandatory consultation as provided by the decision of this Court rendered in the case of Vadodara Shaheri Jilla Khedut Mandal Through President vs. Vadodara Page 19 of 67 HC-NIC Page 19 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Municipal Corporation through Municipal Commissioner and others reported in 2014(1) GLH 710. Relevant paragraphs sought to be relied upon by him are reproduced hereunder:-
"80. The importance of consultation as provided under Section 41 should be read in the context with Section 40 of the Act. Section 40 provides for making and contents of a town planning scheme. Section 40, Clause (1) and (2) reads as under:
Sec. 40. Making and contents of a town planning scheme.
(1) Subject to the provision of this Act or any other law for the time being in force, the appropriate authority may make one or more town planning scheme for the development area or any part thereof, regard being had to the proposals in the final development plan, if any.
(2) A town planning scheme may be made in accordance with the provisions of this Act in respect of any land which is-
(i) in the course of development;
[(ii) likely to be used for residential or commercial or industrial or for building purposes; or]
(iii) already built upon.
81. In our opinion, at the time of consultation under Section 41, the Chief Town Planner has to ascertain whether the appropriate authority has made a town planning scheme for the development area or any part thereof and secondly whether such a scheme is in accordance with the provisions of this Act in respect of any land which is (i) in the course of development and
(ii) likely to be used for residential or commercial or industrial or for building purpose or (iii) already built upon.
82. Therefore, keeping Section 40 of the Act in mind it appears that the legislature has Page 20 of 67 HC-NIC Page 20 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT thought fit to provide for consultation under Section 41 at the stage of declaring the intention to make such a scheme. The function which the Chief Town Planner performs at that stage is an important function in public interest and, therefore, the consultation has to be meaningful and mandatory. It appears to us from the plain reading of Sections 40 and 41 of the Act that a resolution declaring the intention to make a scheme could be passed only if the Chief Town Planner approves the scheme verifying all the relevant aspects which are necessary under Section 40 of the Act.
83. Thus, to the aforesaid extent, we are not in agreement with the contention of Mr.Shelat, the learned Senior Advocate appearing for the VMC that the consultation as provided under Section 41 could not be termed as mandatory but the same could be treated only as directory. At the same time, we are in agreement with Mr.Shelat that there has been a consultation and an effective consultation with the Chief Town Planner and the materials on record do suggest the same."
22. According to him, Rule 17 the Gujarat Town Planning and Urban Development Rules (hereinafter referred to as "the Rules") provides that there should be individual notice. It is further urged that the town planning scheme does not cover the gamtal land. There is no draft town planning scheme for Revenue Survey Nos.153/6 and 153/7.
23. He has also sought to rely upon the decision rendered in the case of M/s. Babubhai & Co. and others vs. State of Gujarat and others reported in Page 21 of 67 HC-NIC Page 21 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT 1985(2) GLR 883. Relevant paragraph relied upon by learned advocate is reproduced hereunder:-
"8. In the instant case an examination of the scheme of the Act as also the purpose sought to be achieved by sec.54 it will appear clear that the topic of making of town planning schemes is dealt with in secs. 21 to 53 while section 54 (and some of the following sections like 55 and 71 to 78) deal with the aspect of the execution of town planning scheme and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in their occupation has been conferred upon the Local Authority itself- a highly responsible body, and that the power is required to be exercised by it in objective manner ( it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying land which they are not entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by passing speaking order which implies giving of reason and that ensures the application of mind to only germane or relevant material on the record eschewing matter extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non-germane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court. Having regard to these aspects, mere absence of corrective machinery by way of appeal or review would not in our view render the provisions invalid."
24. According to him, section 48-A of the Town Planning Act specifies that there should be no summary Page 22 of 67 HC-NIC Page 22 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT eviction.
25. In the instant case, it is the say of the appellants that, therefore, making any substantial modification in draft development plan is a rigorous procedure and is subject to judicial scrutiny. Under the guise of complete modification in draft development plan, the Commissioner cannot be permitted to exercise the powers of changing the street lines. It is the say of the appellants that such action, taken without any application of mind on the aspect of necessity coupled with the absence of any honest opinion, would be required to be struck down.
26. Learned Senior Advocate Mr.Prashant Desai appearing with learned advocate Mr.Kaushal Pandya for respondent-SUDA has urged that development plan is a macro level planning and town planning scheme is micro level planning. According to him, there is no shifting of alignment of the road from 36 meters of to 24 meters. Since construction of 36 meters of road would affect more people, the same has been reduced to 24 meters. With regard to sections 210 and 212 of the BPMC Act, he has sought to rely upon the decision of this Court rendered in the case of Surat Garage Page 23 of 67 HC-NIC Page 23 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Company Through Partner-Padmaben J. Naik vs. Municipal Corporation of the City of Surat and others reported in 2007(2) G.L.H. 335. It is further urged that half of the road is constructed and half is not as yet done, it is causing lot of difficulties for commuters.
27. In rejoinder reply, learned Senior Counsel Mr.Oza for the appellants has urged that under sections 13 and 14 of the Town Planning Act, there are no notices issued to the appellants-petitioners. 24 meters reduction of the road is dehors the plan. He relied upon the decision rendered in the case of Bhikhubhai Vithlabhai Patel vs. State of Gujarat reported in (2008)4 SCC 144.
(Chronology of events)
28. At the outset, it is necessary to mention that the challenge to the vires of section 48-A of the Town Planning Act is already concluded and therefore, all other issues raised in these petitions deserve consideration.
28.1 In light of the submissions made by learned counsels on both the sides and on due consideration of Page 24 of 67 HC-NIC Page 24 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT the material on record along with the provisions of law and the decision rendered thereon, what is required to be considered is as to whether any shift is made in the road line from the originally proposed draft development plan, on account of reduction of width of the road from 36 meters to 24 meters and whether the same is done in colourable exercise of powers and whether any interference is required to be made in the findings and conclusions of the learned Single Judge where it did not entertain the petitions of the present appellants. This Court while disposing of Civil Application No.14232 of 2010 vide order dated 13.12.2012 raised a question as to whether section 212 of the BPMC Act can be made applicable in a case where the road is proposed much after the construction of number of buildings, and whether without the acquisition of land, the Corporation can demolish any building.
29. Admittedly, the draft development plan had been sanctioned on 2.9.2004 wherein the public road of 36 meters touching the bridge on the river Tapi is shown. Such road is an approach road to the said bridge. The town planning scheme thereafter came to be declared Page 25 of 67 HC-NIC Page 25 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT being Town Planning Scheme No.51 (Dabholi) on 18.6.2005. Such road came to be reduced in the said scheme from 36 meters to 24 meters.
30. It is the case of the Corporation that to minimize the loss to the property, which were in existence and as per the present need, such reduction has been made from 36 meters on 2.9.2004 to 24 meters on 18.6.2005. It is also not disputed that the construction of the appellants petitioners is situated in the gamtal of Dabholi and such portion was not included in the town planning scheme. It emerges that for making the road line under section 210 of the BMPC Act, notice was published on 3.6.2010. On 4.6.2010, another notice came to be issued under section 212 (1)
(a) of the BPMC Act and the affected parties were asked to raise the objections.
31. In response to the said notice dated 4.6.2010, detailed objections were submitted on 10.6.2010. It was contended by the appellants that the constructions on the said land are much prior to the inclusion of the said area in the Municipal Corporation. The proceedings initiated under section 212(1)(a) of the BPMC Act are contrary to the law and without any Page 26 of 67 HC-NIC Page 26 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT reason. It was also contended that the appellants petitioners are residing near Survey No.124,125- A,135,138 and 140 and during 1968-69 the development plan was prepared by SUDA. The impugned road shown in the said Survey numbers, is even today on the record of SUDA. They are open lands and except in Survey No.135 where illegal construction has come up, the rest are still open lands. It is urged that the proposed road can be shifted to the said survey number. Thereby, the present appellants will not loose their shelters. Moreover, the stand taken by the appellants is that when the objections qua the road are pending before the concerned authority, the respondents would have no power or authority to issue the notice under section 212 of of the BPMC Act. On 30.6.2010, the appellants were not heard. They were called to express their views or raise their objections in response to notice under section 212(1)
(a) of the BPMC Act.
32. According to the appellants, no opportunity of hearing had been given, whereas according to the other side, hearing took place in consonance with the principles of natural justice. It is also the matter Page 27 of 67 HC-NIC Page 27 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT of record that on 2.8.2010, an official notice came to be issued under section 212(2) of the Act and the petitioners filed a petition on 17.8.2010. Legal aspect: Law on the subject sought to be relied upon by both the sides deserves consideration at this stage
33. This Court in the case of Surat Garage Company Through Partner-Padmaben J. Naik vs. Municipal Corporation of the City of Surat and others (supra) was considering the question of issuance of notice by the Corporation under section 212 of the BPMC Act, whereby the petitioners before the Court were ordered either to vacate the property or face demolition, as the construction of theirs was coming within the regular line of street as prescribed under section 212(1)(a)of the Act. This Court answered the question as to whether it was obligatory on the part of the Municipal Corporation to follow the procedure under section 210(1)(b) of the Act for prescribing regular line of street where for the first time the said line is prescribed by the Corporation. The Court noted the power of Municipal Corporation to prescribe the road line under section 210 of the BPMC Act and concluded that prescribing road line is distinct and independent Page 28 of 67 HC-NIC Page 28 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT statutory power of the Commissioner under the Act of 1949. It is an obligation in the interest of public at large. When the Commissioner prescribes for the first time a road line, he has not to follow the procedure as envisaged under section 210(1)(b) of the Act. The Court referred to and relied upon the decision rendered in the case of Premjibhai D. Karane alias Babubhai vs. Ahmedabad Municipal Corporation reported in 1996(2) GLH 230 holding that prescribing a 'line' is a distinct independent statutory power of the Commissioner under the Act of 1949. In the said decision, it has been held thus:-
"7. The concept of prescribing a line or a regular line or a street line is not new. A civil body in order to secure uniformity of appearance, draw a line on the sides of the road, and projection of building or part thereof beyond the "line" is not allowed. It may have some relevance with the width of the road, but it does not necessarily or solely depends on the width alone. There are number of factors which are required to be considered by the authority in prescribing the street line. This power of a Civic body has been recognized by the Legislation under Section 210 of the BPMC Act. Prescribing a "line" is a distinct independent statutory power of the Commissioner under the BPMC Act. It is an obligatory power in public interest. It is significant to notice that while there is a provision of drawing a street line or a regular line under the BPMC Act, there is no such provisions in the Town Planning Act. Under the Act, the Town Planning Scheme requires various items to be prescribed which includes "road" but not the "regular Page 29 of 67 HC-NIC Page 29 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT line". The Legislature in its wisdom has not provided any provisions with respect of regular line or street line in the Town Planning Act and has conferred this power on one of the most important executive authority of the scheme i.e. Municipal Corporation. Thus, there is no conflict in powers under Section 210 of the BPMC Act and sanctioned scheme under the Act and as such the question of altering or variation of the scheme does not arise, whether it is a case of width of the road or shortening the size of the final plot. Viewing from another angle also, a Regular line or street line brings all the buildings on the road in line. It being a larger public interest, any individual building or part thereof even on the final plot under the sanctioned scheme must give way to the line prescribed under the Act."(Emphasis supplied)
34.1 Thus, there was no illegality found in the action of the Corporation in drawing regular line of street and in giving notice under section 212 of the Act of 1949. Such powers exercised by the Commissioner of Municipal Corporation is considered an independent power vis-a-vis the powers or obligation provided under the Town Planning Act. It is also further held and observed that number of factors are required to be considered by the authority while prescribing the street line and the power of civic body is recognised by the Legislation under section 210 of the BPMC Act. Such powers of drawing street line or regular line are absent in the Town Planning Act.
Page 30 of 67 HC-NIC Page 30 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT 34.2 Thus, where the Commissioner had substituted the road widening plan by new road line for streetlights, the Court held that the case of the petitioner is not covered by sub-section(1)(b) of section 210 of the BPMC Act.
35. In the case of Bhikhubhai Vithlabhai Patel vs. State of Gujarat (supra), appeal was preferred before the Apex Court challenging the revision of development plan made by the Development Authority, under section 21 of the Town Planning Act, by reserving the lands in question for education complex to South Gujarat University.
36. The decision rendered in the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. reported in (2003) 2 SCC 111, the Apex Court had laid down that section 21 of the Town Planning Act may impose statutory obligations on the part of the State and the appropriate authority to revise the development plan but under the garb of exercising the power to revise the development plan "the substantial right conferred upon the owner of the land or the person interested therein", cannot be taken away. The Court was Page 31 of 67 HC-NIC Page 31 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT considering whether the action on the part of the State Government in issuing preliminary notification and the final notification discarding the said land which was meant for educational use was valid and whether the action is ultra vires. Having noted sections 17 and 21 of the Town Planning Act, the Court held that wide power is conferred upon the State Government in the matter of sanctioning of the draft development plan so also for making substantial modifications in the revised draft plan. It also held and observed that section 21 of the Town Planning Act mandates that the same procedure as provided for preparation and sanction of the draft development plan would be applicable even in respect of revision of development plan. According to the Apex Court, the opinion of the Government is subject to the objective test. The language leaves no room for the relevance of judicial examination as to the sufficiency of grounds on which the Government acts in forming its opinion.
37. There must be valid material, based on which alone State Government needs to form its opinion that it has become necessary to make substantial modification in the draft development plan. As for revision of development plan under section 21, Page 32 of 67 HC-NIC Page 32 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT provisions of sections 9 to 20 also apply to such revision. While interpreting proviso with the powers conferred under section 17(1)(a)(ii) of the Town Planning Act, the Apex Court has held that it is not an absolute power to be exercised in the discretion of the State Government. It also discussed as to what amounts to subjective satisfaction and as to how such subjective satisfaction shall have to be scrutinized. Expressions "is of opinion" and "reason to believe"
are indicative of subjective satisfaction and the nature of power has to be determined on a totality of consideration of all the relevant provisions. The Apex Court held and observed that neither preliminary notification itself nor the records disclose the formation of any opinion by the State Government much less any consideration that any necessity as such had arisen to make substantial modifications in the draft development plan. Therefore, it held that as the substantial modification to the plan is proposed without forming any opinion, which is a condition precedent for exercise of power under the proviso to section 17(1)(a)(ii), the Apex Court accordingly had struck down both the notifications and declared them ultra vires.Page 33 of 67
HC-NIC Page 33 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT
38. In the case of Manohar Joshi vs. State of Maharashtra and others reported in (2012) 3 SCC 619, the Apex Court dealt with a case where in a development plan there was a reservation policy for public amenities like primary school. Such primary school was shifted to a far off place by resorting to Rule 13.5 of the Maharashtra Development Control Rules,1967, where in fact such rule does not permit shifting of primary school beyond 200 meters. Pune Municipal Corporation, under the direction of the Government, for showing favour to Chief Minister's son-in-law, a developer relaxed such condition and shifted the plot, allowing thereby, the developer concerned to construct residential complex therein. The Apex Court held and observed that such deletion of reservation and development permission to build a residential complex was wholly illegal and unjustified act. The High Court had cancelled the illegal development sanctioned due to favouritism shown to the builder, who is the son-in-law of the Chief Minister and directed demolition of illegal residential complex.
39. The Apex Court on having found a shocking misuse Page 34 of 67 HC-NIC Page 34 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT of powers by the then Chief Minister in favour of his close relatives not only struck down those notifications and upheld the PIL in a larger public interest protecting the spaces meant for public mandates, but also, suggested safeguards for future so that such kind of gross deletions do not occur in the following manner:-
"Suggested safeguards for the future
211. Having noted as to what has happened in the present matter, in our view it is necessary that we should lay down the necessary safeguards for the future so that such kind of gross deletions do not occur in the future, and the provisions of the Act are strictly implemented in tune with the spirit behind.
(i) Therefore, when the gazette notification is published, and the public notice in the local newspapers is published under Section 29 (or under Section 37) it must briefly set out the reasons as to why the particular modification is being proposed. Since Section 29 provides for publishing a notice in the 'local newspapers', we adopt the methodology of Section 6 (2) of the L.A. Act, and expect that the notice shall be published at least in two daily newspapers circulating in the locality, out of which at least one shall be in the regional language. We expect the notice to be published in the newspapers with wide circulation and at prominent place therein.
(ii) Section 29 lays down that after receiving the suggestions and objections, the procedure as prescribed in Section 28 is to be followed.
Sub-section (3) of Section 28 provides for holding an inquiry thereafter wherein the opportunity of being heard is to be afforded by the Planning Committee (of the Planning Authority) to such persons who have filed their objections and made suggestions. The Planning Page 35 of 67 HC-NIC Page 35 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Committee, therefore, shall hold a public inquiry for all such persons to get an opportunity of making their submission, and then only the Planning Committee should make its report to the Planning Authority.
(iii) One of the reasons which is often given for modification/deletion of reservation is paucity of funds, which was also sought to be raised in the present matter by the Municipal Commissioner for unjustified reasons, in as much as the compensation amount had already been paid. However, if there is any such difficulty, the planning authority must call upon the citizens to contribute for the project, in the public notice contemplated under Section 29, in as much as these public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethmalani Vs. State of Maharashtra."
40. In the case of Vadodara Shaheri Jilla Khedut Mandal Through President vs. Vadodara Municipal Corporation through Municipal Commissioner and others (supra), the State Government appointed Urban Development Authority which in turn delegated the power and function to the Municipal Corporation for the development of urban area. The Municipal Corporation directed the developers to reserve 40% of the land in the development area after sanction of the town planning scheme for public purpose in each plot, while seeking permission in the development plan area. Page 36 of 67 HC-NIC Page 36 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT 41.1 It was objected to by the petitioners that such amendment in the General Development Control Regulations (GDCR) compelled the developers to reserve 40% of the land in each plot. The notification was proposed to carry out amendment in GDCR. Such resolution and the notification came to be challenged by the petitioners. The Court eventually held that the consultation contemplated under section 41 of the Town Planning Act is mandatory and by no stretch can be held to be directory. Moreover, most of the consultations should be held in context with section 40 of the Act which provides for making of the town planning scheme.
41.2 The Court held and observed that the development plan first comes into picture and then comes the town planning scheme. Sections 3(1) and 3(2) of the Town Planning Act speak declaration of the development area. Section 9 of the Town Planning Act makes provision for the development plan. Section 11 of the Town Planning Act provides for the manner of preparation of draft development plan. Section 12 speaks of the contents of the draft development plan. Section 14 invites suggestions and objections to draft Page 37 of 67 HC-NIC Page 37 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT development plan. Section 16 states submission of draft development plan to the State Government for sanction. Section 17 confers power upon the State Government to sanction draft development plan. Section 19 speaks of the variation of the final development plan. No change is generally to be made in the draft development plan, unless there are exceptional grounds and that too after following necessary procedures. 41.3 Apt would be to reproduce relevant findings and observations of this case of Vadodara Shaheri Jilla Khedut Mandal Through President vs. Vadodara Municipal Corporation through Municipal Commissioner and others (supra) in the context of controversy involved:-
"53. According to Mr.Bhatt, the Act for the purpose of making development plan and for framing of the Town Planning Schemes has conferred powers in the entire area upon the VUDA. The area falling under the VMS is a part of the area of VUDA. Mr.Bhatt would submit that Section 122 of he Act cannot be pressed into service to prevent the development authority from exercising its powers under the Act and instead delegate such powers to some other alien authority. Mr.Bhatt would submit that the authority constituted under the Act is an expert body whereas the VMC is primarily constituted under the BPMC Act only to discharge the functions of the local-self- government. For the purpose of achieving the objects of the Act, the VMC is not an expert body but it is the VUDA which is the Page 38 of 67 HC-NIC Page 38 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT appropriate authority. According to Mr.Bhatt, the Section 122 of the Act does not contemplate the Government to issue a mandate to the Area Development Authority not to exercise its powers and not to discharge its duties under the Act and direct some other authority to discharge all the functions under Act. In such circumstances, according to Mr.Bhatt, the directions issued by the State Government vide order dated 16.9.1983 and the resolution to that effect dated 28.10.1983 are both illegal and unconstitutional.
54. We do not find any merit even in the aforesaid submission of Mr.Bhatt for more than one reason. It appears that vide order dated 16.9.1983 the instructions were issued upon the authority to delegate the powers under Section 23, Clause 1, Sub-clause (ii), Section 23 -1
(vi), Sections 68, 69, 70, 72 and 88 in favour of the VMC. Such instructions or directions are issued from time to time by the State Government in exercise of its power under Section 122, Clause-1 of the Act with a view to see that the object of the Act is sub-served.
Section 122, Clause-1 of the Act reads as under:-
Sec. 122. Control by State Government.
(1) Every appropriate authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act.
Section 23 of the Act reads as under:
Sec. 23. Powers and functions of urban development authority.
1.[The power and functions of] an urban development authority shall be:-
(i) to undertake the preparation of development plans under the provisions of this Act, for the urban development area;
...........
Page 39 of 67 HC-NIC Page 39 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT
(v) to control the development activities in accordance with the development plan in the urban development area;
2.[(v-a) to levy and collect such scrutiny fees for scrutiny of documents submitted to the appropriate authority for permission for development as may be prescribed by regulations;]
(vi) to execute works in connection with supply of water, disposal of sewerage and provision of other services and amenities;
3.(vi-a) to levy and collect such fees for the execution of works referred to in clause (vi) and for provision of other services and amenities as may be prescribed by regulation:
2.The urban development authority may, with the approval of the State Government, delegate [any of its powers and functions] to the local authority or authorities functioning in the urban development area.
.................
55. The area of any town planning scheme is a part and parcel of a larger municipal area or a development area where the reconstitution of plots is done and along with that the facilities like roads, water supply, drainage and other infrastructure is provided. Therefore, for proper development it is essential that the powers to make such a scheme, the implementation of the scheme and providing of infrastructure is delegated to the Municipal Corporation. The whole object appears to be to see that the development takes place smoothly. It is with such object in mind that the State Government issues directions under Section 122, Clause-1 for delegation of powers under Section 23 (1) (ii) and 23 (1) (iv).
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
59. We shall now deal with the third argument of Mr.Bhatt as regards the Vadodara Municipal Corporation delegating its power to the Page 40 of 67 HC-NIC Page 40 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Municipal Commissioner. According to Mr.Bhatt, the Town Planning Act does not provide for any delegation of its powers to any officer, since VUDA has already delegated its power to the VMC. In short, according to Mr.Bhatt, the VUDA has to act as if it is an urban development authority. If the Act of 1976 does not make any provision for delegation of its powers to any of its officer, the VMC while exercising the powers of the urban development authority, could not have further delegated its powers to the municipal commissioner.
60. The maxim 'delegatus non potest delegare' deals with the extent to which a statutory authority may permit another to exercise a discretion entrusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is in the eye of law no "delegation" at all and the maxim "delegates nonpotest delegare" does not apply. In other words, if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority's own.
61. In the aforesaid context, we may profitably refer to a Supreme Court decision in the case of Pradyut Kumar Bose v. Hon'ble the Chief Page 41 of 67 HC-NIC Page 41 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Justice of Calcutta High Court [AIR 1956 SC 285], the Court observed as under:
"It is well recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides - is the ultimate responsibility for the exercise of such power.""
42. The petitioners of Special Civil Application No. 15115 of 2010 and allied matters have raised contention to an effect that there is no effective or sufficient consultation nor is there any order after consultation. It is further urged that there is no section like section 39 of the Maharashtra Act in the Gujarat Town Planning Act. It is also their say that sanctioned final development plan provided 36 meters wide road which has been constricted to 24 meters. After notices were published, applications/ objections which have been raised, have not been replied to by the Corporation. Again, section 48-A applies to the draft Town Planning Scheme No.51 whereas 'Dabholi Gamtal' is not covered by the said town planning scheme at all. Consultation while making changes should be a meaningful consultation and is mandatory. Page 42 of 67 HC-NIC Page 42 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT The Chief Town Planner is also not consulted.
43. What amounts to consultation and for making any change in Town Planning Scheme, such consultation is mandatory and not directory, is already provided in this very case of Vadodara Shaheri Jilla Khedut Mandal Through President vs. Vadodara Municipal Corporation through Municipal Commissioner and others (supra). Apt would be to reproduce relevant paragraphs with respect to the aspect of consultation as under:-
"77. The Supreme Court after considering its earlier decisions, explained the word consultation in the case of Indian Administrative Service (SCS) Assn., UP v. Union of India reported in 1993 SCW 1135 and held as under:
(1) Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory (2) When the offending action effects fundamental rights or to effectuate built in insulation, as fair procedure, consultation is mandatory and non-consultation renders the action ultra vires or invalid or void.
(3) When the opinion or advice binds the proposer, consultation is mandatory and its Page 43 of 67 HC-NIC Page 43 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT infraction renders the action or order illegal.
(4) When the opinion or advice or view does not bind the person or authority, any action or decision taken contrary to the advice is not illegal, nor becomes void.
(5) When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted, the prior consultation is only directory. The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken, be put to notice of the authority or the persons to be consulted; have the views or objections, taken them into consideration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstances it amounts to an action "after consultation".
(6) No hard and fast rule could be laid, no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place. It is for the Court to determine in each case in the light of its facts and circumstances whether the action is "after consultation"; "was in fact consulted" or was it a "sufficient consultation".
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
"80. The importance of consultation as provided under Section 41 should be read in the context with Section 40 of the Act. Section 40 provides for making and contents of a town planning scheme. Section 40, Clause (1) and (2) reads as under:
Sec. 40. Making and contents of a town Page 44 of 67 HC-NIC Page 44 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT planning scheme.
(1) Subject to the provision of this Act or any other law for the time being in force, the appropriate authority may make one or more town planning scheme for the development area or any part thereof, regard being had to the proposals in the final development plan, if any.
(2) A town planning scheme may be made in accordance with the provisions of this Act in respect of any land which is-
(i) in the course of development;
[(ii) likely to be used for residential or commercial or industrial or for building purposes; or]
(iii) already built upon.
81. In our opinion, at the time of consultation under Section 41, the Chief Town Planner has to ascertain whether the appropriate authority has made a town planning scheme for the development area or any part thereof and secondly whether such a scheme is in accordance with the provisions of this Act in respect of any land which is (i) in the course of development and
(ii) likely to be used for residential or commercial or industrial or for building purpose or (iii) already built upon.
82. Therefore, keeping Section 40 of the Act in mind it appears that the legislature has thought fit to provide for consultation under Section 41 at the stage of declaring the intention to make such a scheme. The function which the Chief Town Planner performs at that stage is an important function in public interest and, therefore, the consultation has to be meaningful and mandatory. It appears to us from the plain reading of Sections 40 and 41 of the Act that a resolution declaring the intention to make a scheme could be passed only if the Chief Town Planner approves the scheme verifying all the relevant aspects which are necessary under Section 40 of the Act.
83. Thus, to the aforesaid extent, we are not in agreement with the contention of Mr.Shelat, Page 45 of 67 HC-NIC Page 45 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT the learned Senior Advocate appearing for the VMC that the consultation as provided under Section 41 could not be termed as mandatory but the same could be treated only as directory. At the same time, we are in agreement with Mr.Shelat that there has been a consultation and an effective consultation with the Chief Town Planner and the materials on record do suggest the same."
Findings:-
44. In light of the discussion above, issue of constriction of the road width from 36 meters to 24 meters of Jahangirpura-Dabholi road requires attention and whether the action is taken after following due procedure of law and whether the consultation with the Chief Town Planning Officer is necessary for such reduction and whether the action is permissible under the law by the authorities which is delegated implementation of the Town Planning Scheme No.51 (Dabholi).
45. Admittedly, in the development plan, which had been finalized, the width of the road was 36 meters which has been eventually reduced in the Town Planning Scheme No.51 (Dabholi) to 24 meters where the substantial portion of the road is already constructed. It is not in dispute that there is no shift in the alignment apparent from the map. The road Page 46 of 67 HC-NIC Page 46 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT which was otherwise straight in the plan is not any more straight in the line because it gets reduced to 24 meters and therefore, it cannot remain straight. It is also not in dispute that the said road is connecting the bridge near Tapi river. As per provision of the Town Planning Act, the draft scheme once is sanctioned, Corporation can take possession of the land required for the road purpose. The total road is of 2.3 kms and except the construction of road on the land of ownership of the appellants, which is nearly 340 sq.meters for the majority portion, the construction is already done. The Town Planning Scheme No.51 (Dabholi) had been finalized on 18.6.2005. This narrowing of the road, according to the authority was with a view to minimize the damage to the property which are in existence. The petitioners are situated in gamtal of Dabholi. Admittedly, the portion of land owned by them was not included in the town planning scheme, and therefore, the Corporation needed to get said portion of land for public purpose. It had attempted to acquire the said property as provided in section 77 of the BPMC Act. This provision provides for acquisition of immovable property by the Commissioner, whenever expedient for any purpose of Page 47 of 67 HC-NIC Page 47 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT the said Act. It could be by agreement on such terms and at such rates or prices not exceeding such maxima as shall be approved by the Standing Committee either generally or for any class of cases or specifically in any particular case.
46. Section 78 of the BPMC Act provides that whenever the Commissioner is unable to acquire any immovable property for public purpose, on seeking Standing Committee's approval, it can apply to the State Government for the said purpose.
47. As can be noted from the original files, attempt was firstly made to exercise powers under section 77 of the BPMC Act and when such exercise failed, Commissioner chose to exercise his powers and prescribed the road line as per section 210 of the BPMC Act, which was published in the newspaper on 3.6.2010. Section 210 of the BPMC Act permits discretion to the Commissioner to prescribe street line on one or both sides of any public street. It is called the 'regular line of the street'.
48. Notice under section 212(1)(a) of the BPMC Act was issued on 4.6.2010. Powers under section 212 are additional powers of Commissioner to order setting Page 48 of 67 HC-NIC Page 48 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT back of buildings to regular line of street. The objections have been raised by the petitioners and they have been heard also and the final notice came to be issued on 2.8.2010 under section 212(2) of the BPMC Act as per the consent of the Standing Committee.
49. The learned Single Judge in wake of these details did not choose to interfere in the decision of the Standing Committee which decided after considering objections raised by the petitioners.
50. This Court had called for the original files and perused them to understand the controversy thoroughly.
It could be noticed on perusal of the original files that the note of Assistant Town Planner dated 5.3.2009 specifies that as per sanctioned development plan, Dabholi gamtal is partly affected, whereas as per the Town Planning Scheme No.51, Dabholi gamtal is affected in a major way. It further says that in Survey nos.249 to 257, old households are situated whereas in City Survey Nos.703,704 and 705, the land is open. Therefore, necessary procedure was proposed to be undertaken for opening an approach road. Further noting also indicates clearly that in Town Planning Scheme No.51, Dabholi gamtal is not included. However, Page 49 of 67 HC-NIC Page 49 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT on 80 feet road connecting Dabholi and Jahangirpura constructed houses of gamtal gets affected, and therefore, there would be a need to exercise the powers under section 210 for making street line. All owners were called for negotiation on 20.6.2009 under section 77 of the BPMC Act as per the noting of 18.6.2009. After the owners were called in person, it was decided to visit the land concerned on 22.6.2009. There was a requirement of exchanging the land for 380.14 sq.meters. It was proposed that in finalized Town Planning Scheme No.51(Dabholi) reservation R- 16(local commercial) is already possessed by the Corporation, and therefore, the same can be handed over in exchange. In other words, in lieu of City Survey Nos.249 to 257 and 246, Dabholi land of 380.14 sq.meters, the R-16(local commercial) was to be allocated. Request was made to consider as to in what manner existing constructed properties were to be handled. The Corporation also worked out the valuation of the land after taking the sale instances of the nearby area. Jantri price was Rs.3500/- to Rs.4500/- per sq.meter. The valuation committee had evaluated the same at Rs.4700/- per sq.meters. Eventually, Rs.900 per sq.meters was considered to be the Page 50 of 67 HC-NIC Page 50 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT valuation for the land to be acquired and the one being proposed for allocation. It was proposed that from the owners, the consent be obtained for getting the exchange. Four of the owners, Ishwarbhai Somabhai Patel, Jaswantbhai Somabhai Patel, Bharatbhai Somabhai Patel and Naniben Somabhai Patel, vide their letter dated 9.10.2009 had objected and urged that change be made in the proposed road because the land offered in exchange was near Harijanvas and Bhangivas etc. The land offered was a local commercial land, and therefore, they did not find the same suitable for the residence. What had been mainly objected to by the owners is that their houses are 150 years old and as per town planning scheme, according to the owners, there was no road which passed through gamtal land in the final development plan and yet, the road has been made through this gamtal land with a view to save the land of a particular Survey Number. It is also their objection that as per town planning scheme, the road has not been constructed. SUDA also has permitted the construction, and therefore, on such road number of constructions came up. It is further their say that the houses of the appellants are situated not on the proposed road of the town planning Scheme, and Page 51 of 67 HC-NIC Page 51 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT therefore, there was no question of vacating the appellants. The situation of the road is requested to be changed so that no deduction is made eventually.
51. The noting dated 24.5.2010 says that all efforts to amicably acquire the land failed. The land impugned is situated on the northern part of Dabholi. For maintaining the continuity of 24 meters of the road, there is a necessity for acquisition of City Survey Nos.246,247,249 to 257. In such circumstances, the Deputy Commissioner proposed and requested to exercise the street line under section 210(1)(a) of the BPMC Act. There does not appear anything from the noting of the original file indicating any attempt to favour a particular class of people.
52. It is reiteratively urged before the authority concerned that to save the residents of City Survey No.135, such changes are made, which again would amount to vacating 500 householders. Survey Nos.135 has unauthorized construction work and by accepting huge illegal gratification and in collusion with the promoters, the road has been constructed and the houses of the appellants petitioners around the land are, in the process, likely to be demolished. No site Page 52 of 67 HC-NIC Page 52 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT inspection is carried out although from 1999 to 2009 repeated requests have been made.
53. Undoubtedly, original finalized draft plan contained 36 meters of road. Considering the development and on account of ever increasing number of vehicles and commuters, the requirement of wider road would be always felt. Long ago, when the draft plan was sanctioned, 36 meters wide road had been planned whereas, afterwards the same has been reduced and constricted to nearly 24 meters which is an intriguing step. Justification given by the Authority, of course, is that this was to ensure that less number of people are affected by such construction which could barely be a criteria, when requirement of the same is for larger public interest. The authority shall have to regard public interest, vis-a-vis the private interest on strict compliance of the existing law. It is more particularly required to be regarded by the authority which finalized the scheme. It can be also noticed that some of the Survey Numbers which include Survey Nos.135 were being affected if the 36 meters road continued. However, the reduction from 36 meters to 24 meters has helped some of those residents Page 53 of 67 HC-NIC Page 53 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT and one of them appeared to be of Survey No.135. But that does not, in any manner, justify the stand of the appellants petitioners that had the road continued to be of 36 meters, their houses could have been saved. The original map consistently shows the portion of gamtal land being covered by this 36 meters of road. In other words, even if the original 36 meters of road would have continued, houses of gamtal were going to be affected. It is not that at the cost of those persons, the others are saved. It is possible that if Survey No.135, as alleged, is containing unauthorised construction work, it is for the Corporation to initiate appropriate actions in accordance with law to deal with such a situation. But, that ipso facto cannot be held to be a ground to uphold the appellants' challenge. It is obvious from the record that this change of road from the width of 36 meters to 24 meters has been finalized while finalizing the Town Planning Scheme No.51(Dabholi). Once the town planning scheme is finalized, it becomes an integral part of the statue. However, the present challenge, which has been made to the action of the respondent authority of such reduction only at the time when it initiated the proceedings as prescribed under the BPMC Page 54 of 67 HC-NIC Page 54 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT Act for constructing the approach road, may not be possible to be sustained. As could be noticed from the pleadings as well as from the record, the town planning scheme came to be finalized after following the due procedure. The change made from the final sanctioned plan in the town planning scheme were all incorporated after following due procedure. Restricted challenge that deserves consideration is of exercise of powers under sections 210 and 212 of the BPMC Act by the Commissioner while prescribing the road line.
54. It needs to be noted that such powers of prescribing the road line and additional powers under section 212 of the BPMC Act are distinct in nature and the Legislature has conferred the powers. As held in case of Premjibhai D. Karane alias Babubhai vs. Ahmedabad Municipal Corporation reported in 1996(2) G.L.H. 230 the Municipal Corporation is one of the most important executive authority of the scheme, there is a provision of drawing the street line or regular line under the BPMC Act and, there is no conflict in the powers under section 210 of the BPMC Act and sanctioned scheme under the Town Planning Act. The question of alteration or variation of the scheme Page 55 of 67 HC-NIC Page 55 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT also does not arise. The powers once exercised in public interest shall need to be regarded accordingly as reflected hereinabove and it is the power of Municipal Corporation to draw street line or regular line for larger public good and in the instant case, such powers do not appear to have been used unauthorizedly or in contravention of the statutory provisions of the rules.
55. We also noticed that initially exercise was made under section 77 of the BPMC Act when some of the petitioners were called for personal hearing and negotiations, as the Corporation was desirous of bringing an amicable end to the entire dispute. They initially agreed, then later on, gave in writing while negotiations were on that the exchange of alternative land proposed by the Corporation was not acceptable inasmuch as such land was situated in Harijanvas and Bhangivas and, according to the petitioners, it was not feasible to stay there.
56. It appears that there could still have been a possibility of their considering such proposal if other alternatives could have been provided. However, that aspect need no further elaboration. Page 56 of 67 HC-NIC Page 56 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT
57. Constructed houses of the appellants petitioners are admittedly situated in the gamtal of Dabholi. Such portion since was not included in the town planning scheme, the road line was necessarily to be prescribed as per section 210 of the BPMC Act. The same was published on 3.6.2010 and a notice under section 212(1) of the BPMC Act came to be issued on 4.6.2010, where the petitioners were permitted to raise objections and they were heard in person on 30.6.2010. The final notice under section 212(2) of the BPMC Act was issued on 2.8.2010.
58. As noted hereinabove, construction work on majority part of the 24 meters road has been completed. What is left out is the area of 340 sq.meters owned by some of the petitioners. When the attempt to get the said area where constructed area is of 211 sq.meters and the rest is open land, failed, powers are exercised to prescribe street line on following due procedure for a larger cause. In the case of Surat Textile Market Co Operative Shops and Warehouses Society Limited vs. Commissioner reported in 2002(1)GLR 633, this Court has held that "when the Municipal Commissioner prescribes a road Page 57 of 67 HC-NIC Page 57 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT line under the BPMC Act for the first time, the procedure prescribed by section 210(1)(b) is not applicable at all. The statutory provision is applicable only when the existing road line already prescribed under the BPMC Act is sought to be altered or substituted under section 210(1)(b) of the BPMC Act. Section 210(1)(a) contemplates that until a street line is prescribed by the Municipal Commissioner under the said clause, a regular line of a public street operative under any other law for the time in force in any part of the city shall be deemed to be a street line for the purposes of the BPMC Act."
59. For the forgoing reasons, we are of the opinion that challenge to the procedure made under sections 210 and 212 of the BPMC Act deserves to fail.
60. As far as the petitioners who are the plot holders of Bhavaninagar Society situated at Revenue Survey No.125-B are concerned, as mentioned hereinbefore it is their grievance that ordinarily the development plan does not get changed. The alignment of the road which passes through Dabholi-Jahangirpura bridge had been changed and shifted slightly on the Page 58 of 67 HC-NIC Page 58 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT northern side, which affected their houses. The town planning scheme was sanctioned on 15.10.2008 and what has been objected to is the road of 24 meters in the town planning scheme after variation. According to them, the original final development plan though had contained 36 meters of road, it was not passing through the land of the petitioners. On the southern side of their plot, Plot No.135 is reserved for water works where illegal construction had been put up. The objections were invited with respect to finalizing the draft town planning scheme and the same has been finalized.
61. As the challenge is to the by-passing of provisions of section 19 of the Town Planning Act, it is to be noticed that variation from the final development plan can be done after following the substantive procedure prescribed under the law. It needs to be regarded that the challenge was made to the vires of section 48-A of the Act and such challenge of the petitioners has been turned town by this Court vide its order dated 20.1.2012 and hence, the aspect of variation without consultation which has been much highlighted deserves consideration. Page 59 of 67 HC-NIC Page 59 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT
62. The sum and substance of the request of the petitioners is that the town planning scheme which has been finalized in the year 2008 requires to be varied and interfered with and the road which has been finalized requires to be shifted by mandatory directions.
63. Relying essentially on the judgment rendered in the case of Vadodara Shaheri Jilla Khedut Mandal Through President vs. Vadodara Municipal Corporation through Municipal Commissioner and others (supra), it can be said that the consultation needs to be meaningful and the same has to be based on material facts. With a view to evaluate correct or satisfactory consultation, there has to be meeting of minds between proposer and the persons to be consulted on the subject of consultation. There has to be definite facts which constitute foundation and source for final decision. The object is to make it more meaningful to serve the intended purpose.
64. In the opinion of this Court, on the basis of the material produced, it can be said that there is nothing to indicate that these elements were absent Page 60 of 67 HC-NIC Page 60 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT when consultation was made at the time of making variation from the final development plan. As is apparent from the record, not only the respondents have been given the opportunity of hearing, but they have extensively raised their various kinds of factual and legal objections.
65. They were also offered an alternative accommodation as per the policy of the Corporation. Majority of people affected by the development work under the draft Town Planning Scheme No.51(Dabholi) have availed the benefits of such alternative accommodation and the Corporation is still ready to provide the same. The petitioners also signed one of the forms for allotment of alternative plots. However, later on they sought to challenge the actions of the respondent authority. We do not see any merit in the challenge. Action taken is in accordance with the settled provisions. It is unfortunate that this road is likely to affect many households. In every implementation of plans, such shift is necessary for the larger public interest. As already mentioned hereinabove, while addressing the issue of reduction of road from 36 meters to 24 meters, although the allegations are made that such reduction was made with Page 61 of 67 HC-NIC Page 61 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT a view to help some of the owners, in absence of any valid material, the town planning scheme which has already been finalized need not be interfered with.
66. This Court needs to bear in mind that the suggested safeguards proposed by the Apex Court for the future in the case of Manohar Joshi vs. State of Maharashtra and others (supra) were not available at the time when the entire exercise was done way back in the year 2005-06. The scheme itself has been finalized in the year 2008. The challenge is made by the petitioners in the year 2010-11. However, without touching the said case law when the provisions of the Town Planning Act are borne in mind for redressing the grievances of the petitioners, we do not find any need to grant relief sought for by the petitioners. Compensation/Alternative place:
67. We need to remember at this stage affidavit-in- reply of the respondent Corporation in all these petitions where they have reiterated their commitment to provide alternative site/place to those affected due to implementation of scheme and on account of their decision under section 212 of the BPMC Act. Page 62 of 67 HC-NIC Page 62 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT While denying to interfere in these matters, we would like to refer to the law on the subject to ensure that those affected are given their legal dues. More particularly, when these households are situated in Surat city which is growing leaps and bounds and where prices of property make the purchase of the same for a common man a near impossibility.
68. In the case of State of Gujarat vs. Shantilal Mangaldas and others reported in AIR 1969 SC 634(1), the Apex Court held therein that " in ordinary parlance the expression "compensation" means any thing given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay: it need not therefore necessarily be in terms of money. The phraseology of the constitutional provision also indicates that compensation need not necessarily be in terms of money, because it expressly provides that the law may specify the principles on which, and the manner in which, compensation is to be determined and "given."
69. The Apex Court in the case of Municipal Corporation of the City of Ahmedabad and others vs. Page 63 of 67 HC-NIC Page 63 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT State of Gujarat and others reported in (1972) 1 SCC 802, was considering the principles of determination of compensation when the land was acquired under section 216 of the BPMC Act and provided the guidelines for the said purpose. It has held that the Land Acquisition Act provides for compensation to be determined in accordance with the judicial principles by the employment of appropriate methods of evaluation so that the person who is deprived of property is fully indemnified against the loss. It is also held that with the enormous increase in traffic in the more congested parts of a growing city, Municipal authorities are under pressure to widen the streets and one of the several methods is under section 212 of the BPMC Act where the owner has to be compensated for every deprivation of loss.
70. In the case of Ahmedabad Municipal Corporation and another vs. Ahmedabad Green Belt Khedut Mandal and others reported in (2014) 7 SCC 357, the Apex Court dealt with the aspect of compensation when the property was expropriated to sub-serve the common good and discussed extensively the law on the subject:-
"42. Thus, it is evident that in case a landowner is not provided with a final plot, Page 64 of 67 HC-NIC Page 64 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT amount of his loss would be payable to him as required under Section 84 of the 1976 Act. ( It is agreed by the learned counsel for the parties that there is not a single instance herein where the landowner is deprived of his land completely and has not been given a reconstituted plot.) However, it is suggested by the learned counsel for the State that in such an event, such tenure-holder would be entitled for market value of the land to be determined under the 1976 Act and the provisions of the 1894 Act would not be applicable in view of the judgment of this Court in Prakash Amichand Shah. Be that as it may, as there is no such instance where the landowner is deprived completely of his land and does not get reconstituted plots, we do not want to proceed further with an academic question.
43. In Shantilal Mangaldas this Court held:
(SCC p.518, para 17) "17. The provisions relating to payment of compensation and recovery of contributions are vital to the successful implementation of the Scheme. The owner of the reconstituted plot who gets the benefit of the Scheme must make contribution towards the expenses of the scheme; the owner who loses his property must similarly be compensated."
The aforesaid judgment is still a good law on this aspect.
44. In view of the commencement of the 44th Amendment of the Constitution w.e.f. 20-6-1979, whereby Articles 31(2) and 19(1)(g) have been deleted, we do not propose to go into the enquiry and consider the judgments in State of W.B. v. Bela Banerjee and Rustom Cavasjee Cooper v. Union of India. More so, the judgments in P.Vajravelu Mudaliar v.
Collector(LA) and Union of India v. Metal Corpn. Of India Ltd., have been overruled by this Court in subsequent judgment. [See Ishwari Khetan Sugar Mills(P) Ltd. v. State of U.P.]. Thus, there is no fundamental right to hold a property. But the right to compensation on Page 65 of 67 HC-NIC Page 65 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT compulsory acquisition is still available under the second proviso to Article 31-A(1) subject to the limitation as specified therein. However, we need not elaborate the same as the said averment is not argued before us."
71. Bearing in mind the well laid down principles on the subject, it can be noted that the right to compensation is available on compulsory acquisition when person is deprived of his property even after following the principles on the subject. The respondent authority is under an obligation to provide an alternative land after evaluating the market value of the original plot and the final plot being offered. The authority also is required to determine as to whether the land owner has suffered some injury. The statutory provisions for compensation requires to be also borne in mind.
72. In light of the discussion held hereinabove, it needs to be emphasized that for the petitioners of all Letters Patent Appeals and all petitions if the respondents have not already made provision for providing alternative sites/compensation, the respondent authority shall bear in mind the findings and observations made by the Apex Court in the case of Ahmedabad Municipal Corporation and another vs. Ahmedabad Green Belt Khedut Mandal and others(supra) and in other authorities discussed hereinabove. While offering alternative sites and/or granting compensation, it is to be borne in mind that it is vital to the successful implementation of the scheme that the owner whose property is lost, is compensated Page 66 of 67 HC-NIC Page 66 of 67 Created On Thu Oct 22 02:30:17 IST 2015 C/LPA/2449/2010 CAV JUDGMENT duly in accordance with settled legal position. All those petitioners who are affected shall be provided alternative sites as per the details worked out in the scheme, on following due procedure and by employing appropriate method of evaluations. Loss as may be incurred on account of deprivation shall be duly compensated by the respondent authority.
73. With these directions and observations, all Letters Patent Appeals and all petitions stand disposed of.
74. Respondents shall follow the directions in respect of alternative accommodation/compensation as given in paragraphs No.71 and 72.
75. Such exercise shall be finalized within 12 weeks for the date of the receipt of the copy of this judgment, till then, there shall be no dispossession of the petitioners of the properties in question in all these matters.
76. Notice in respective Letters Patent Appeals and Special Civil Applications stand discharged.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) SUDHIR Page 67 of 67 HC-NIC Page 67 of 67 Created On Thu Oct 22 02:30:17 IST 2015