Gujarat High Court
Madhukunj Society vs State Of Gujarat & 2 on 18 March, 2015
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/14171/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14171 of 2013
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MADHUKUNJ SOCIETY....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR TEJAS M BAROT, ADVOCATE for the Petitioner(s) No. 1
MR RONAK RAVAL, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1
MR NILESH A PANDYA, ADVOCATE for the Respondent(s) No. 2-3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 18/03/2015
ORAL ORDER
The present petition is filed by the petitioner society under Articles 14, 21 and 226 of the Constitution of India as well as under the provisions of Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Act') read with the Gujarat Town Planning and Urban Development Rules, 1979 (for short, 'the Rules') for the following prayers, on the grounds stated in the memo of petition.
"(A) Hon'ble Court be pleased to issue an appropriate writ, order or direction, quashing the Preliminary Scheme of Town Planning Scheme No. 16 as well as Notification dated 22.7.2011 issued by the respondent no.1 sanctioning th said Preliminary Scheme, so far as the same reconstitute the Final Plot no. 103 of the petitioner, which in effect completely takes away the common plot of the petitioner society;Page 1 of 6 C/SCA/14171/2013 ORDER
(B) Pending admission hearing and final disposal of present petition, the Hon'ble Court be pleased to restrain the respondent authorities from giving effect to the Preliminary Scheme of Town Planning Scheme no.16 to the extent the same reconstitutes the original plot no. 62 of the petitioner society into Final Plot No. 103 without the common plot, and be further pleased to restrain the said respondent authorities,their men, agents, servants, etc. from acting under the said scheme and taking and/or disturbing in any manner the possession of the common plot of the petitioner;
(C) Any other and further relief as may be deemed just, fit and proper may kindly be granted in the fats and circumstances of the case and in the interest of justice."
2. Heard learned advocate Shri Tejas Barot for the petitioner, learned AGP Shri Ronak Raval for respondent No.1 and learned advocate Shri Nilesh Pandya for respondents Nos. 2-3.
3. Learned advocate Shri Barot referred to the provisions of the Act and pointedly referred to the notice produced at Annexure-D stating that the common plot of the society is being taken away in the TP Scheme. He has also referred to the procedure and submitted that personal hearing has not been given. He has also referred to the papers to emphasise about the plot which is given in lieu of the common plot which is less in area as compared to the common plot. He has also submitted that an opportunity of hearing was not given. He pointedly referred to the papers and submitted that though the notices are referred including the notice issued to the petitioner society, in fact no personal hearing has been afforded which is borne out from the information which was sought by the petitioner. He tried to submit that if personal hearing was given, then Page 2 of 6 C/SCA/14171/2013 ORDER the explanation could have been given. He submitted that in fact no hearing has been afforded which amounts to denial of rules of natural justice. He also referred to other papers and submitted that there are other plots which could have been taken and therefore since the plot of the society is taken and given to a private party, the representation of the petitioner ought to have been considered. He emphasised that since the plot is not taken for any public purpose, it amounts to depriving the right of the petitioner to have the common plot. He has also submitted referring to sec. 70 that once the scheme is finalised or sanctioned by the State Government, there is no absolute embargo or bar and it could be varied. He therefore submitted that the present petition may be allowed. He has also produced a copy of the communication dated 27.2.2015 and submitted that though they were called ultimately it has not been considered.
4. Learned advocate Shri Nilesh Pandya appearing for respondents Nos. 2-3 referred to the affidavit-in-reply filed on behalf of the Corporation and tried to submit that the procedure as required under the Act has been followed and sufficient opportunity has been given. He pointedly referred to the papers and submitted that individual notice has been served to the petitioner in 1999, 2004 and 2008. He submitted that the intention of the town planning scheme was declared much earlier in 1997 and thereafter the procedure has been followed including providing an opportunity of hearing. Learned advocate Shri Pandya submitted that though it is claimed that the common plot of the society is taken in the town planning scheme, the fact remains that only 8.67% of the area of the plot is affected which has been stated in detail in the affidavit-in-reply. He submitted that a plot in lieu of that is also given which would make the position clear that the submissions are misconceived. He pointedly referred to the affidavit-in-reply (para 6) for the said purpose with regard to re-distribution of the plot to emphasise that in place of the original Page 3 of 6 C/SCA/14171/2013 ORDER survey no. having 8397 sq.mtrs. of land, Final Plot No. 103 admeasuring 7669 sq.mtrs. of land had been given. He submitted that the intention was declared under sec. 41(1) of the Act and after following the procedure the draft has been prepared. He further submitted that as provided in sec. 48 read with sec. 42, after consideration of all objections, the scheme has been sent for approval and the State Government has approved the scheme for which the notification has also been issued. He therefore submitted that the town planing scheme with modification as provided under sec. 48(2) of the Act has been sanctioned by the State Government and the Notification dated 28.7.2011 produced at Annexure-H is also issued. Learned advocate Shri Pandya submitted that as per sec. 52(1) of the Act, notices to the affected owners also were issued and public notices have been issued as stated in the affidavit-in-reply. He therefore submitted that the submissions with regard to denial of opportunity is misconceived and once the scheme has been approved by the State Government, now it is not open for the petitioner to make any grievance. He submitted that it would not be possible to accede to request for modification by each and every person as it would lead to chaos. He therefore submitted that the present petition may not be entertained.
5. In rejoinder, learned advocate Shri Barot has reiterated the same submissions to emphasise about considering their grievances.
6. In view of these rival submissions, it is required to be considered whether the present petition can be entertained.
7. From the background of facts, as stated in detail in the petition and in the affidavit-in-reply, it can hardly be said that no opportunity has been given though learned advocate Shri Barot tried to submit referring to the papers that some information which were called for have been denied as to what has transpired after the particular notice. In fact it is not necessary Page 4 of 6 C/SCA/14171/2013 ORDER and the statute or the Act provides for giving an opportunity which has been complied with in compliance of the rules of natural justice. Admittedly, public notice as well as individual notices have been served and the representations that may have been made are considered. As rightly submitted, it is not possible for the authority to consider and accept every objection or suggestion for allotment of another plot or modification as suggested by every landowner. Therefore, in view of the detailed affidavit which has been filed referring to the procedure which has been followed, it can hardly be said that there is any violation of the rules of natural justice or denial of opportunity. In fact, it reflects the attitude of the petitioner the manner in which it has asked for various details with regard to the procedure, but have not stated conveniently about the opportunity which has been granted.
8. Therefore, considering the provisions of the Act which has been considered time and again by the Hon'ble Apex Court, this Court would not be justified to interfere with the wisdom of the authority without any justification, in exercise of discretion under Art. 226 under the concept of judicial review. It is well-settled that the scope of judicial review has self-imposed restrictions and the court would decline to exercise such discretion or rather exercise such discretion cautiously. The scheme of the Act has been considered in various pronouncements of the Hon'ble Apex Court and it has been clearly considered that the underlying object of the Act has to be considered which has been explained as the doctrine of proportionality.
9. A useful reference can also be made to the judgment of this High Court reported in 2004 (3) GLH 675 in the case of Jethabhai Mepabhai Makwana v. State of Gujarat wherein it has been observed that if in the process of town planning if some land is to be reserved for a public purpose and if an individual has to lose some land, it cannot be said that Page 5 of 6 C/SCA/14171/2013 ORDER there is violation of any rights of the petitioner in view of the doctrine of proportionality has been violated. It has been observed, "The doctrine of proportionality itself provides that in the process of striking the balance, for betterment of the society at large, if a person has to suffer, it cannot be said that the doctrine has been violated."
9. Therefore a balance has to be struck between the private interest and interest of the public or the authority in general and private interest may have also to be compromised. In the facts of the case, as it is evident, a plot in lieu of that which is taken has also been allotted and merely because the size of the plot is slightly different it could not be a matter of grievance particularly when opportunity to raise objections have been given and after having considered the objections the authority has taken the decision and the court would decline to exercise its discretion under Art. 226 in such cases.
10. The present petition, therefore, cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Notice discharged. No order as to costs.
(RAJESH H.SHUKLA, J.) (hn) Page 6 of 6