Ramanbhai Hargovinddas Limbachia & 45 vs State Of Gujarat & 2 on 8 March, 2016

[Cites 10, Cited by 11]

Gujarat High Court

Ramanbhai Hargovinddas Limbachia & 45 vs State Of Gujarat & 2 on 8 March, 2016

Bench: R.M.Chhaya

                 C/SCA/1089/2015                                            ORDER




                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    SPECIAL CIVIL APPLICATION NO. 1089 of 2015

         ==========================================================
              RAMANBHAI HARGOVINDDAS LIMBACHIA & 45....Petitioner(s)
                                   Versus
                     STATE OF GUJARAT & 2....Respondent(s)
         ==========================================================
         Appearance:
         MR SP MAJMUDAR, ADVOCATE with MR N R DESAI, ADVOCATE for the
         Petitioner(s) No. 1 - 46
         MR MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
         Respondent(s) No. 1 and 3
         MR PRASHANT G DESAI, SENIOR ADVOCATE with MR KAUSHAL D
         PANDYA, ADVOCATE for the Respondent(s) No. 2
         ==========================================================

          CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA

                                   Date : 08/03/2016


                                    ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: "(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside notification dated 21.01.2000 of the State Government in sanctioning Draft Town Planning Scheme No.33 (Dumbhal, Surat) (at ANNEXURED hereto) as well as orders dated 03.01.2015 passed by Page 1 of 29 HC-NIC Page 1 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER the respondent Corporation (at ANNEXUREK (Colly) hereto), as far as it relates to plots/lands where the properties of the petitioners are situated;

(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of notification dated 21.01.2000 of the State Government in sanctioning Draft Town Planning Scheme No.33 (Dumbhal, Surat) (at ANNEXURED hereto) as well as orders dated 03.01.2015 passed by the respondent Corporation (at ANNEXUREK (Colly) hereto), as far as it relates to plots/lands where the properties of the petitioners are situated;

2. Facts which can be culled out from the record of the petition are as under: That the petitioners are occupiers of land bearing revenue survey No.53/1, block No.72 of Village Dhumbal which is now within the local limits of Surat Municipal Corporation and is part of Town Planning Scheme No.33, Dhumbal Surat (hereinafter referred to as "the Scheme"

for the sake of brevity). It appears from the record that the draft scheme came to be Page 2 of 29 HC-NIC Page 2 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER sanctioned under Section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act") vide notification dated 21.1.2000. It appears that thereafter, Town Planning Officer was appointed who prepared and published the preliminary scheme. However, the said preliminary scheme so submitted to the State Government and after its scrutiny, the scheme was refused to be sanctioned as preliminary scheme vide notification dated 1.7.2010. As provided in the said notification, it was provided that the Town Planning Officer shall afresh draw the preliminary scheme in accordance with the provisions of the Act and observations of the inquiry report as well as the representation received also be considered. The lands occupied by the petitioners is forming part of Town Planning 36 mtr. road. It appears that the respondent - Corporation, as an implementing authority, issued a notice to each of the petitioners dated 27.5.2014 for implementation Page 3 of 29 HC-NIC Page 3 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER of the said scheme as provided under Sections 48A, 67, 68 of the Act and Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules"). The record also indicates that the petitioners filed reply to the same and thereafter filed a writ petition being Special Civil Application No.8760 of 2014 which came to be disposed of by this Court (Coram: K.M. Thaker, J.) vide order dated 2.7.2014, wherein this Court following the ratio laid down by the Apex Court judgment in the case of M/s. Babulal & Co. & Ors. Vs. State of Gujarat & Ors., reported in 1985 (2) GLR 883 was pleased to direct the respondent Corporation to give an opportunity of being heard and pass a reasoned order. It further appears that as per the directions issued by this Court, the competent authority of the respondent Corporation thereafter by an order dated 3.1.2015 has been pleased to direct the petitioners to evict themselves for implementation of 36 mtr. Town Page 4 of 29 HC-NIC Page 4 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER Planning Scheme road. Being aggrieved by such individual orders passed in the case of each of the petitioners who are 46 in number, the present petition is filed.

3. Heard Mr. S.P. Majmudar, learned advocate with Mr. N.R. Desai, learned advocate for the petitioners, Mr. Manan Mehta, learned Assistant Government Pleader for respondent Nos.1 and 3 and Mr. Prashant G. Desai, learned Senior Advocate with Mr. Kaushal Pandya, learned advocate for respondent No.2.

4. Mr. S.P. Majmudar, learned advocate for the petitioners has taken this Court through the impugned orders and the documents on record and has made the following submissions: 4.1 That, the earlier preliminary scheme which was submitted by the Town Planning Officer as provided under Section 64 of the Act was not sanctioned and the Government refused to sanction the preliminary scheme. The very action of the respondent Corporation in Page 5 of 29 HC-NIC Page 5 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER issuing impugned notices and passing of the orders of implementation of the scheme is de hors the provisions of the Act.

4.2 In such facts and circumstances, the respondent Corporation is therefore required to again follow the whole procedure and the Corporation therefore cannot implement the draft Town Planning Scheme under Section 48A of the Act. 4.3 It is contended that as far as the petitioners are concerned, some of the petitioners have purchased the land in question by a sale deed and that some petitioners are occupying the land in question since 1985 and there are 5 schools situated therein and therefore, the implementation of the scheme qua the lands of the petitioners is not in consonance with the provisions of the Act.

4.4 It is submitted that the petitioners have made construction after obtaining permissions from the authority and therefore, as the scheme is still at large i.e. at the stage of Section 52 Page 6 of 29 HC-NIC Page 6 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER of the Act, the road in question should be implemented only after preliminary scheme is sanctioned.

4.5 It was also contended that the students would be badly affected if the scheme is implemented. 4.6 There is no justification of having 36 mtr.

road as the present road which is available is sufficient enough to carter the needs of the traffic.

4.7 It is therefore submitted that the prayers prayed for in the petition require consideration and the petition be allowed.

5. Per contra, Mr. Prashant G. Desai, learned Senior Advocate with Mr. Kaushal Pandya, learned advocate for respondent No.2 Corporation has relied upon the affidavitin reply filed by the Corporation. Mr. Desai submitted that the very scheme was challenged before this Court and the draft scheme which is sanctioned by the State Government vide Page 7 of 29 HC-NIC Page 7 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER notification dated 21.1.2000 has been held to be valid and therefore, the contention raised by the learned advocate for the petitioners that the draft Town Planning Scheme cannot be implemented under Section 48A of the Act read with Section 68 of the Act read with Rule 33 of the Rules deserves to be negatived. It is submitted that as per the directions issued by this Court in its order dated 2.7.2014 passed in Special Civil Application No.8760 of 2014, the petitioners were heard and thereafter, the orders impugned dated 3.1.2015 are passed. It is contended that the petitioners have made construction without any permission. It is further contended that majority of the petitioners have not even purchased the land in question as provided under the provisions of the Transfer of Property Act, 1882 and are occupiers on the strength of the possession receipt. It is further contended that the permission granted by the Panchayat relied upon by the petitioners were in fact not even valid Page 8 of 29 HC-NIC Page 8 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER and no permission from the competent authority under the provisions of the Act is obtained by the petitioners and in fact, the petitioners have raised unauthorized construction upon the land in question, which was already part of the Town Planning road. Mr. Desai relying upon the judgment of the Division Bench of this Court in the case of Narshibhai Raghavbhai Savani & Ors. Vs. State of Gujarat & Ors., reported in 2012 (2) GLH 95 and has submitted that the very scheme in question was subject matter of the Letters Patent Appeal, wherein Division Bench of this Court has held that the scheme in question i.e. draft Town Planning Scheme No.33 is legal and valid. It is further submitted that the land in question is needed for the purpose of laying down Town Planning road as per the sanctioned scheme and therefore, the respondent - Corporation, as an implementing authority, is well within its right to implement the same and the respondent - Corporation, while implementing the scheme, has Page 9 of 29 HC-NIC Page 9 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER followed the provisions of the Act and the Rules. It is contended that the petition is misconceived and the same is only to delay the implementation of the Town Planning Scheme. 5.1 Mr. Desai has also relied upon the judgment of the Apex Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corporation & Ors., reported in 2008 (3) GLH 137 and has contended that the petitioners have not filed any objections against the draft scheme and therefore, now by this petition, they cannot raise an objection as in fact the petitioners have waived their right to file the objections. Mr. Desai has also relied upon the Apex Court judgment in the case of S.N. Mukherjee Vs. Union of India reported in (1990) 4 SCC 594 to buttress his arguments. 5.2 It is therefore contended that this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and the petition deserves to be dismissed in Page 10 of 29 HC-NIC Page 10 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER limine.

6. Mr. Manan Mehta, learned Assistant Government Pleader for the State Government authorities has adopted the arguments made by Mr. Prashant G. Desai, learned Senior Advocate for respondent No.2 - Corporation.

7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.

8. Before reverting to the submissions made by the learned advocates appearing for the respective parties, it would be appropriate to refer to the status of the petitioners over the land in question. It appears from the record of the petition which has been provided by the learned advocate for the petitioner in a tabular form parawise as under: petiti Name of petitioners Sale deeds/ Date oners possession receipts 1 Ramanbhai Hargovinddas Sale deed 31.03.08 Limbachia (plot No.12) 2 Kiritbhai Mangubhai Sale deed 31.03.08 Page 11 of 29 HC-NIC Page 11 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER Patel (plot No.7) 3 Ramrajbhai Ramprasad Sale deed 31.03.08 Yadav (plot No.89) 4 Dalichand Harkishandas Possession 24.12.88 Rana (plot No.1011) receipt 5 Narendrabhai Bhavanlal Possession 1989 Sharma (plot No.1315) receipt 6 Sumanben Ishwarsinh Possession 05.04.89 Thakor (plot No.16) receipt 7 Vijaybhai Atmaram Patil Possession 13.12.86 (plot No.17) receipt 8 Rajendrabhai Atmaram Possession 13.12.86 Patil (plot No.18) receipt 9 Chandravadan Chhotalal Possession 24.12.88 Modi (plot No.19) receipt 10 Hemaliben Dipakkumar Possession 12.01.90 Modi (plot No.20) receipt 11 Jesinghbhai Khimibhai Possession 24.12.88 Rajpurohit (plot No.21) receipt 12 Jitendra Arunbhai Patil Possession 1986 (plot No.2223) receipt 13 Ushaben Ratilal Possession 1986 Rajpurohit (plot No.24) receipt 14 Dhanaram Manaram Suthar Possession 1988 (plot No.2526) receipt 15 Vijaybhai Chhotalal Possession 1989 Dalal (plot No.27) receipt 16 Pravinbhai Uttamram Possession 24.02.87 Chapadia (plot No.29) receipt 17 Dhansukhbhai Uttamram Possession 24.02.87 Chapadia (plot No.28) receipt 18 Chetankumar Jamiyatram Possession 1986 Rana (plot No.3031) receipt 19 Bimalkumar Gyanchand Possession 1989 Jain (plot No.32) receipt 20 Ravindra Kashiram Kale Possession 1985 (plot No.3435) receipt 21 Bhagwanbhai Sajanbhai Possession 24.02.89 Patil (plot No.36) receipt 22 Hanshaben Rameshchandra Possession 24.02.89 Jariwala (plot No.36A) receipt Page 12 of 29 HC-NIC Page 12 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER 23 Sandipbhai Laxmanbhai Possession 24.02.89 Patil (plot No.37) receipt 24 Pravinbhai Jamiyatram Possession 15.05.90 Sherdiwala (plot No.38) receipt 25 Vivekbhai Suryakant Possession 15.05.90 Katiya (plot No.39) receipt 26 Kalaben Mohanbhai Possession Rodawala (plot No.40) receipt 27 Pravatiben Nareshbhai Possession Rodawala (plot No.41) receipt 28 Tusharbhai Rameshbhai Sale deed 31.03.08 Bhandari (plot No.42

43) 29 Minaxiben Chandrakant Possession 15.03.98 Modi (plot No.44) receipt 30 Geetaben Sureshchandra Possession 15.03.98 Dudhwala (plot No.45) receipt 31 Sureshbhai Satyanarayan Possession 24.12.88 Sharmar (plot No.4852) receipt 32 Hemantbhai Possession 1990 Pravinchandra Dalal receipt (plot No.52A) 33 Vivek Namdev Pawar Sale deed 31.03.08 (plot No.53) 34 Vinodbhai Uttamram Sale deed 31.03.08 Rodawala (plot No.55) 35 Dalpatbhai Ratilal Sale deed 31.03.08 Rodawala (plot No.56) 36 Farshuram Raitlal Sale deed 31.03.08 Rodawala (plot No.57) 37 Dipakbhai Dayaljibhai Sale deed 31.03.08 Patel (plot No.61) 38 Vikrambhai Possession 24.12.88 Bhaichandbhai Joshi receipt (plot No.62) 39 Mukeshbhai Sale deed 31.03.08 Bhaichandbhai Joshi (plot No.63A) 40 Chhayaben Mukeshbhai Sale deed 31.03.08 Joshi (plot No.63B) 41 Hirabhai Hukamram Possession 24.12.88 Page 13 of 29 HC-NIC Page 13 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER Chaudhary (plot No.63 receipt

64) 42 Ashokbhai Kesaram Possession 24.12.88 Chaudhary (plot No.65) receipt 43 Jayvadan Babulal Mehta Sale deed 31.03.08 (plot No.66) 44 Gahnshyam Ramjibhai Possession 24.12.88 Navadia (plot No.67) receipt 45 Veenaben Dineshchandra Possession 24.12.88 Goswala (plot No.68) receipt 46 Sarojben Manharlal Possession 24.12.88 Gandhi (plot No.69) receipt

9. It deserves to be noted that petitioner Nos.1, 2, 3, 28, 33, 34, 35, 36, 37, 39, 40 and 43 have purchased the land in question by a sale deed dated 31.3.2008, whereas rest of the petitioners claim possession on the basis of the possession receipts which are of different dates and years ranging from 1985 to 1998 as enumerated hereinabove.

10. At this juncture, it would be appropriate to refer to the provisions of Section 49 of the Act, which provides as under: "49. Restrictions on use and development of land after declaration of a scheme: (1)(a) On or after the date on which Page 14 of 29 HC-NIC Page 14 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER a draft scheme is published under section 41, no person shall, within the area included in the scheme, carry out any development unless such person has applied for and obtained the necessary permission for doing so from the appropriate authority in prescribed form and on payment of such scrutiny fees as may be prescribed by regulations;

(b) where an application for permission under clause (a) is received by the appropriate authority, it shall send to the applicant a written acknowledgment of its receipt and after making such inquiry as it deems fit and in consultation with the Town Planning Officer, if any, may either grant or refuse such permission or grant it subject to such conditions as it may think fit to impose;

(c) if the appropriate authority does not communicate its decision to the applicant within three months from the date of acknowledgments of its receipt, such permission shall be deemed to have been granted to the applicant;

(d) if any person contravenes the provisions of clause (a) or of any condition imposed under clause (b), the appropriate authority may direct such person by notice in writing to stop any development in progress, and after making an inquiry in the prescribed manner remove, pull down, or alter any building or other development or restore the land or building in respect of which such contravention is made to its original condition;

Page 15 of 29 HC-NIC Page 15 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER

(e) any expenses incurred by the appropriate authority under clause (d) shall be a sum due to it under this Act from the person in default;

(f) the provisions of section 35 shall so far as may be, apply in relation to the unauthorised development or use of land included in a town planning scheme;

(g) the restrictions imposed by this section shall cease to operate in the event of the State Government refusing to sanction the draft scheme or the preliminary scheme or in the event of the withdrawal of the scheme under section 66 or in the event of the declaration of intention lapsing under subsection (3) of section 42;

(h) any diminution in the value of an original plot occasioned by any contravention of the provisions of clause (a) or of any condition imposed under clause (b) shall, notwithstanding anything contained in sections 77, 78 and 79 be taken into account in fixing the market value of such plot.

(2) No person shall be entitled to compensation in respect of any damage, loss or injury resulting from any action taken by the appropriate authority under the subsection (1) of section 70 except in respect of a building or work begun or contract entered into before the date on which a declaration of intention to make a scheme is published under section 41 or the publication of the draft scheme under subsection (1) of section 42 : Page 16 of 29

HC-NIC Page 16 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER Provided that where any person is entitled to any compensation in respect of any building or work under this subsection, he shall be so entitled only in so far as such building or work has proceeded at the time of the declaration of intention or publication, as the case may be, and subject to the conditions of any agreement entered into between such person and the appropriate authority. (3) On and after the date referred to in clause (a) of subsection (1), the appropriate authority intending to carry out development of land, within the area included in the scheme, for its own purpose in exercise of its powers under any law for the time being in force shall carry out such development in conformity with the provisions of such scheme, and of the byelaws and regulations relating to construction of buildings.

(4) The provisions of this section shall not apply to any operational construction undertaken by the Central Government or a State Government."

11. The aforesaid provision clearly indicates that the date on which the draft scheme is published under Section 41 of the Act, the restriction on use of development of land shall apply, which would mean that when the land in question is earmarked for Town Planning road purpose, the Page 17 of 29 HC-NIC Page 17 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER same cannot be used for any other purpose. It deserves to be noted that as noted hereinabove, out of 46 petitioners, only petitioner Nos.1, 2, 3, 28, 33, 34, 35, 36, 37, 39, 40 and 43 have a sale deed in their favour which is dated 31.3.2008. It is an admitted position that intention to prepare the scheme was declared on 21.4.1997 and the draft scheme came to be sanctioned under Section 48(2) of the Act vide notification dated 21.1.2000, whereas as far as the petitioners, who claimed ownership on the basis of the sale deed dated 31.3.2008 are admittedly after the sanction of the draft Town Planning Scheme.

12. It would also be necessary to refer to the provisions of Section 48A of the Act, which reads as under: "48A. Vesting of land in appropriate authority (1) Where a draft scheme has been sanctioned by the State Government under subsection (2) of section 48, (hereinafter in this section, referred to as 'the sanctioned draft scheme'), Page 18 of 29 HC-NIC Page 18 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g), or (h) of subsection (3) of section 40 shall vest absolutely in the appropriate authority free from all encumbrances. (2) Nothing in subsection (1) shall affect any right of the owner of the land vesting in the appropriate authority under that subsection. (3) The provisions of sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,

(i) sanctioned draft scheme were a preliminary scheme, and

(ii) in subsection (1), for the words "comes into force", the words, brackets and figures "the date on which the daft scheme is sanctioned under subsection (2) of section 48"

were substituted."

13. It is an admitted position that the land in question is forming part of Town Planning road of 36 mtr. and therefore, by virtue of Section 48A(1) of the Act, the said land shall vest absolutely in appropriate authority free from all encumbrances on the date on which the draft scheme is sanctioned under Section 48A(2) of the Act and therefore, the petitioners, by a sale deed in their favour, have purchased the Page 19 of 29 HC-NIC Page 19 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER land which, in fact, had vested in the Corporation under Section 48A(1) of the Act. Similarly, the petitioners who have only possession receipts in their favour are occupying the land which has vested in the Corporation as above. In order to verify the contentions of the learned advocates appearing for the respective parties, this Court has also undertaken exercise of referring to the copy of the sale deed of petitioner No.1 in particular which is at AnnexureA Colly (Pages 36 to 48 of the paper book). It is no doubt true that the said sale deed is registered. However, on perusal of the contents of the said sale deed, the same refers to the plot and there is no mention that there is any construction over it. The other sale deeds which are relied upon by the respective petitioners and the possession receipts of different dates as observed hereinabove are also of similar nature and therefore, the reliance placed by the learned advocate for the petitioners on Raja Chitthi Page 20 of 29 HC-NIC Page 20 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER granted by Dhumbal Gram Panchayat dated 18.3.1983 which is at AnnexureC Colly to the petition is misconceived and therefore, such a contention deserves to be negatived outright. It also deserves to be noted that such Raja Chitthi granted by the Gram Panchayat are 9 in number relating to plots no.12, 13, 14, 15, 17, 18, 19 and 20, out of which the socalled Raja Chitthi of plot No.13 is in duplicate. There is no other evidence to show that any of the petitioners have obtained any permission from respondent No.2 authority or Surat Urban development Authority, as the case may be and considering the provisions of Section 49 of the Act, as the land in question was already part of the Town Planning road, even otherwise, the restrictions would have applied. As contended by the learned advocate for the petitioners and as contended in the petition, there is no iota of any evidence to show that any of the petitioners raised objections at the stage of draft scheme, more particularly, at the stage Page 21 of 29 HC-NIC Page 21 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER of Section 42 read with Rule 17 of the Rules for which public meeting was held on 30.9.1997. The learned advocate for the petitioners is not in a position to controvert the said fact and therefore, applying the ratio laid down in the case of Babulal Badriprasad Varma (supra), the petitioners have waived the right. As is indicative from the dates which are enumerated in the chart of the petitioners hereinabove, the petitioners who become occupiers or have executed sale deeds after sanction of the draft Town Planning Scheme, cannot be permitted to raise such a question. The contentions raised by the learned advocate for the petitioners that as the preliminary scheme was refused, earlier authorities cannot implement the draft Town Planning Scheme without afresh declaration, is squarely covered by the Division Bench judgment in the case of Narshibhai Raghavbhai Savani (supra), wherein in Paragraphs 9 and 10, it is observed thus: "9. In our view, when, after Page 22 of 29 HC-NIC Page 22 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER considering the objections, if any, the draft scheme is sent for approval to the government under Section47 of the Act and if the same is approved under Section 48(2) of the Act, there is no need to proceed with the scheme de novo, that means, to start from Section 41 of the Act. It would be a futile exercise in the case when the Government has sanctioned the draft scheme submitted by the appropriate authority, to start the same de novo, which is not envisaged in the Act. It is presumed that when appropriate authority sends its draft scheme for approval to the State Government, it has considered the objections received under section 47 of the Act. Moreover, when the State Government approves the draft scheme, it has accepted the draft scheme with its contents, the objections (under section 47 of the Act), the modification (it made pursuant to objections). Upto this this stage, an objector is not required to be called upon to support his objections. In view of this legal aspect, in our opinion, once a draft scheme is sanctioned by the State Government, the stage of reopening the proceedings from the stage of section 41 would not be necessary, unless by judicial pronoucement, the action of the State Government of sanctioning the scheme is quashed and set aside. As provided under Section48 of the Act itself that the Government can refuse to sanction the draft scheme. If the State Government does not sanction the draft scheme, only in that case, the proceedings would start de novo i.e. from Section40 of the Act and not in case of refusing to sanction the preliminary scheme. In Page 23 of 29 HC-NIC Page 23 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER the present case, the draft scheme is sanctioned by the government and since the government has directed to commence to proceed with the scheme from the stage where the preliminary scheme is to be framed, the appellants shall have all rights available under the Act.

10. In view of what is stated herein above, we are of the opinion that the Town Planning Officer shall prepare a preliminary scheme afresh taking into consideration the direction given by the State Government contained in the schedule to the order dated 1.7.2010 and not from the stage of Section40 of the Act."

Hence, the said contention also fails.

14. It appears from the record of the petition that respondent No.2 authority was therefore right in issuing notices dated 27.5.2014 and after hearing the petitioners, has passed the impugned orders dated 3.1.2015 at AnnexureK Colly. to the petition. It deserves to be noted that the authority of the respondent Corporation has considered the provisions of the Act and the Rules and the submissions/objections raised by the petitioners. The impugned orders clearly Page 24 of 29 HC-NIC Page 24 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER mention that 36 mtr. road is provided in the revised final development plan of SUDA of the year 2004 which, as informed by the learned advocates appearing for the respective parties, was sanctioned by the State Government vide notification dated 2.9.2004 and the revised development plan has come into force from 15.9.2004. This clearly establishes the fact that what is provided in the macro planning of the area by way of a development plan is now being planned at the micro level by providing 36 mtr. road in the Town Planning Scheme which is sanctioned at the stage of draft Town Planning Scheme and the same is now being implemented as provided under Section 48A read with Sections 67 and 68 read with Rule 33 of the Rules. The provisions of a development plan does not take into consideration the present need, but it plans out for a longer period keeping in mind the necessity and exigency of the future also and therefore, the Town Planning Scheme is in a way micro planning of Page 25 of 29 HC-NIC Page 25 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER what is provided in the macro planning. Therefore, the contention raised by the learned advocate for the petitioners that 30 mtr. is enough is made without any basis and the same deserves to be negatived outright. It also appears from the record that the land in question i.e. block No.72 of Village Dhumbal is allotted original plot No.38 and in lieu of that, the owners of the said original plot is to be allotted Final Plots No.38/A and 38/B in the scheme which, as pointed out by the learned Senior Advocate for the Corporation, has carved out in the same original plot. As far as the contention raised by the petitioners that there are schools which also would be affected is concerned, firstly, the petition does not recite that any of the petitioners run the school. There is nothing on record to show that such schools which are private schools were constructed after permission from the competent authority. The land in question which is subject matter of the notice for implementation Page 26 of 29 HC-NIC Page 26 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER and the impugned order relates to 36 mtr. Town Planning road and therefore, even considering the public interest and private interest aspect, the public interest is to be given prominence. As stated in the impugned orders, even before laying down 36 mtr. Town Planning road, the Corporation has to provide utility services for which the lines are to be laid down and the authority has come to the conclusion that the suggestion of the petitioners to change the alignment is not in public interest. It appears from the record of the petition that having purchased the plots in question which were already part of the Town Planning road, the petitioners who have sale deed in their favour are now asserting their right. It appears that when the property had already vested in the Corporation as Town Planning road by virtue of Section 48A(1) of the Act, such sale in favour of petitioner Nos.1, 2, 3, 28, 33, 34, 35, 36, 37, 39, 40 and 43 would be of no consequences. It appears that Page 27 of 29 HC-NIC Page 27 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER the petitioners have in fact raised an unauthorized construction and are now objecting to laying down a Town Planning road which is sanctioned by the authorities including the State Government. None of the contentions which are raised in the petition as well as raised by the learned advocate for the petitioners deserve any consideration of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. It goes without saying that the observations made in this judgment and order is only qua 36 mtr. Town Planning road which is being implemented by the impugned notices as well as the impugned orders dated 3.1.2015. None of the grounds raised in this petition require any interference as regards the validity of the sanctioned draft Town Planning Scheme which has been sanctioned by the State Government under Section 48(2) of the Act and considering the ratio laid down by the Division Bench in the case of Narshibhai Raghavbhai Savani (supra), the said draft Town Page 28 of 29 HC-NIC Page 28 of 29 Created On Thu Mar 10 01:27:40 IST 2016 C/SCA/1089/2015 ORDER Planning Scheme is legal and valid. Similarly, the orders dated 3.1.2015 are also legal and proper and no interference is called for by this Court.

15. Resultantly, the petition fails and is hereby dismissed. However, There shall be no order as to costs.

(R.M.CHHAYA, J.) mrp Page 29 of 29 HC-NIC Page 29 of 29 Created On Thu Mar 10 01:27:40 IST 2016

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