Gujarat High Court
Aagam Green Ville Co-Operative Housing ... vs Union Of India on 3 February, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/10549/2021 ORDER DATED: 03/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10549 of 2021
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AAGAM GREEN VILLE CO-OPERATIVE HOUSING SOCIETY LTD.
Versus
UNION OF INDIA
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
MOSON LE EXPARTS(11071) for the Respondent(s) No. 2
MR AKSHAT KHARE(5912) for the Respondent(s) No. 2
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 3
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 03/02/2022
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India with multiple prayers pertaining to TP Scheme No.76 of Dumas. The relief clause is as under:-
"(A) Your Lordships be pleased to restrain the respondent no.2-ONGC from taking possession of the acquired land as per the old DILR measurement prepared in the year 2003 without any consideration of T.P deduction as per the T.P Scheme 76 of Dumas (Dumas-Vanta-Gavier).
(B) Your Lordships be pleased to direct the respondent no.3-SMC to allot a separate plot to respondent no.2-ONGC after deducting from the additional land acquired by the respondent no.2-
ONGC as per T.P Scheme 76 of Dumas (Dumas -
Vanta-Gavier).
(C) Your Lordships be pleased to declare that the respondent no.2-ONGC is entitled to take possession of the acquired land after considering the deduction as per the T.P Scheme 76 of Dumas (Dumas -Vanta-Gavier).
(D) Pending admission, hearing and final disposal of
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C/SCA/10549/2021 ORDER DATED: 03/02/2022
this petition, your Lordships be pleased to
restrain the respondent no.2-ONGC from taking possession of the acquired land as per the old DILR measurement prepared in the year 2003 without any consideration of T.P deduction as per the T.P Scheme 76 of Dumas (Dumas-Vanta-
Gavier)."
2. It is submitted that the respondent no.2-ONGC had acquired land near the land in question for setting up of Valve Station and accordingly the respondent no.2-ONGC erected boundary wall around the land acquired. Thereafter in the year 2003, the respondent no.2-ONGC decided to acquire additional land. The respondent no.2-ONGC has carried out acquisition of part of the land in question, i.e. 2934 sq.mtrs. from survey no. 806 & 806/2, 2125 sq.mtrs. from survey no.807 and 2833 sq. mtrs. from survey no. 828) totally ad-measuring 7892 sq.mtrs. Notification under section 4 of the Land Acquisition Act, 1894 was published on 20.12.2005 and notification under section 6 of the Land Acquisition Act, 1894 was published on 08.06.2006. Thereafter, the Special Land Acquisition Officer passed the award dated 29.03.2008. 2.1 It is submitted that the petitioner society submitted the plotting layout plan with respect to the land in question to Surat Urban Development Authority and the same was approved in the year 2000. Allotment of plots to individual members was done before 2000 and even possession of the plots was given to the individual members before year 2000 itself and received full & Final Payment from Individual Members. However, in view of the Page 2 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 acquisition proceeding by the respondent no.2-ONGC, the petitioner society submitted its revised plotting layout plan and the same has been approved by Surat Urban Development Authority - respondent no.4 in the year 2007.
2.2 It is the case that land in question is part of the T.P Scheme 76 of Dumas (Dumas-Vanta-Gavier). The land in question was given OP No. 2A+2B ad-measuring 176783 sq. mtrs. and FP No. 2A+2B ad-measuring 96607 sq.mtrs. The entire land surrounding the valve station has been allotted a single final plot no. 2B in the T.P Scheme. The land acquired by the respondent no.2-ONGC has not given a separate Final Plot and it is part of F.P No. 2A+ 2B as the respondent no.2-ONGC has not constructed any boundary wall with respect to the additional land acquired by the respondent no.2-ONGC in the year 2008 and therefore the Surat Municipal Corporation-respondent no.3 only considered the boundary wall constructed by the respondent no.2-ONGC in the year 1990, which is clear from the submission /admission made by the respondent no.2-ONGC in RTS/Objection Case No. 65/2020. A copy of Plan No.3 showing Original and Final Plots under the Draft Town Planning Scheme Surat No. 76.
2.3 It is argued that the deduction of 45% took place from the whole land in question, which includes the additional land acquired by the respondent no.2-ONGC and therefore respondent no.2-ONGC is not entitled to take possession of the whole land Page 3 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 acquired as per the old measurement done in the year 2003 without considering the deducting took place as per the T.P Scheme.
2.4 It is argued that if the respondent no.2-ONGC would have put up the boundary to the additional land acquired, the respondent no.3 Corporation would have allotted a separate plot to the respondent no.2-ONGC after deducting the land acquired as per the T.P Scheme.
2.5 It is argued that the respondent no.2-ONGC has not taken action till today for correcting the mistake of the respondent no.3-Surat Municipal Corporation for not allotting a separate plot for the additional land acquired by the respondent no.2-ONGC after following the acquisition procedure.
2.6 It is argued that the petitioner society submitted the plotting layout plan with respect to the land in question to respondent no.4-Surat Urban Development Authority and the same was approved in the year 2000. However, in view of the acquisition proceeding by the respondent no.2-ONGC, the petitioner society submitted its revised plotting layout plan and the same has been approved by respondent no.4-Surat Urban Development Authority in the year 2007.
2.7 It is argued that allotment of plots to individual members was done before 2000 and even possession of the plots Page 4 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 was given to the individual members before 2000 itself. Thereafter, in the year 2008, plots Sale deeds were executed to its individual members and they are in possession of the said plots. 2.8 It is argued that NA permission for plot no. 223 & 224 of revenue survey no. 828 has been given in the year 2008 and NA permission for plot no. 252 has been given in the year 2021. NA permission for residential purpose has been granted vide order dated 28.01.2020 with respect to revenue survey no.806/1 and 806/2 totally ad-measuring 24497 sq.mtrs and Final Plot ad- measuring 13539.27 sq. mtrs. Mutation Entry No. 9363 dated 27.08.2020 mutated in the revenue record regarding the NA permission. It is argued that in some of the plots, constructions have been done fully.
3. Learned Advocate for ONGC and Surat Municipal Corporation jointly submitted that the said draft T.P. Scheme has been submitted to the state government for finalization and thus, as per the Gujarat Town Planning and Urban Development Act, 1976 [further referred as "said act"], the petitioner has an alternate remedy available to raise its grievance (if any) maintainable under the act before Town Planner.
3.1 It is submitted that at the time of declaration of intent of draft T.P. Scheme u/s. 41 of the said Act in the year 2010, the petitioner was neither the owner nor the possessor of the subject Page 5 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 additionally acquired land. Therefore, any grievance with regard to the treatment of such additional land acquired by ONGC under T.P. Scheme cannot be raised by the petitioner who has no connection with the said land.
3.2 It is submitted that the contention of the petitioner is that the ownership & possession of various parcels of the said acquired lands are in ownership & possession of the said petitioner and after obtaining NA permission in 2008, it had sold small plots to various other persons by circulating plotting scheme. It is also contended by petitioner in para no. 4.12 of the petition that if no deduction is made in the additionally acquired land under T.P. Scheme, then it would affect plot holders of society bearing plot no. 224, 225, 226, 227, 241, 244, 246 & 252. Thus, from the said contention it is evident that the petitioner society had sold the plots to individual persons from the land which was additionally acquired by ONGC. The petitioner has not only deceived ONGC but also private persons to whom said encroached plots were sold which was under the ownership of ONGC from the date of award as per Sec. 11 of the Land Acquisition Act, 1894. Thereby meaning the petitioner had illegally sold impugned plot no. 224, 225, 226, 227, 241 & 252 and subsequently, to cover up its illegal actions the petitioner has approached this Hon'ble Court by the way of the present petition.
3.3 It is submitted that in total ONGC had acquired below Page 6 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022
described area of land permanently and ROU for laying pipelines. Permanent acquisition of total land ad-measuring 4840 sq. mtr and ROU acquisition of 1760 sq. mtr out of Survey no. 806/p2 total ad- measuring 12141 sq.mts. Permanent acquisition of total land ad- measuring 2521 sq. mtr and ROU acquisition of 1920 sq. mtr out of Survey no. 807 total ad-measuring 15792 sq.mts. Permanent acquisition of total land ad-measuring 2833 sq. mtr and ROU acquisition of 2640 sq. mtr out of Survey no. 828 total ad- measuring 23674 sq. mtr. In Mouje: Dumas, Taluka: Choriyasi, Dist: Surat. All the above acquisition, right & interest of ONGC had been duly recorded into Form 7&12. It is submitted that after laying pipelines, all activities are subject to the statutory restrictions of not constructing any buildings or any structure or construct or excavate any tank, well, reservoir or any dam or plant any trees in the said land as imposed u/s. 9 of PMP Act. The said restrictions are imposed with the objective of protecting the pipeline from any external injuries or any kind of physical damage. This is because the subject pipeline line is being continuously used for supplying high pressure natural gas which is inflammable in nature. As the pipelines are laid 1 to 1.5 meters deep under the ground, any deep routed activity over the land above pipeline would damage the pipeline and in turn create a safety risk for entire area. The pipeline laid in the acquired ROU is transporting Natural Gas which is highly inflammable. It is therefore, incumbent upon ONGC that utmost safety precaution is required to be taken Page 7 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 during transportation, handling and maintenance of pipeline. It is most likelihood that drilling or excavation or construction of structure or plantation of tree would rupture the said high pressure gas pipeline which would become unwanted accident/situation for you and entire village and would result into loss of life & property of entire nearby population.
4. Having considered the rival submissions of the parties and having perused the documents on record, it appears that Land bearing survey no. 806/1 admeasuring 12356 sq. mtrs, survey no. 806/2 admeasuring 12141 sq. mtrs., survey no. 807 admeasuring 15792 sq.mtrs and survey no. 828 admeasuring 23674 sq. mtrs, totally admeasuring 63,963 sq.mtrs. situated at Mouje: Dumas, Taluka: Majura, District: Surat (hereinafter referred to as "the land in question") were originally owned by V.K. Farming Co-operative Kheti Samudayik Sahkari Mandali Ltd. and thereafter the petitioner society.
5. The petitioner is a Cooperative Housing Society, registered under the Gujarat Cooperative Societies Act,1961 having registration no. S.R.T/-23002 dated 23.10.2012. Petitioner society was earlier registered as "V.K. Farming Co-operative Kheti Samudayik Sahkari Mandali Ltd.". V.K. Farming Co-operative Kheti Samudayik Sahkari Mandali Ltd. was in existence till 2012. In the year 2012, Aagam Green Ville Co-operative Housing Society Ltd. was formed as a housing society as per section 17 of the Gujarat Page 8 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 Co-operative Societies Act,1961 as the entire land owned by V.K. Farming Co-operative Kheti Samudayik Sahkari Mandali Ltd. were converted from farming zone to residential zone. Thus, Aagam Green Ville Co-operative Housing Society Ltd.- present petitioner become the owner of the entire land belonged to V.K. Farming Co- operative Kheti Samudayik Sahkari Mandali Ltd.
6. The petitioner is claiming a right over a final plot no. 2A admeasuring 11302 sq. mtr. Area of land out of revenue survey no. 806/p1 and on final plot no. 2C admeasuring 28376 sq. mtr out of revenue survey no. 807 and final plot no. 2B admeasuring 85305 sq. mtr in old revenue survey no. 806/p/2. The said claim is based on Form-F (Ann. E pg. no. 49) prepared by respondent no. 3 pertaining to the redistribution and valuation statement. It is pertinent to note herein that under the said Form-F against revenue survey no. 806, 807 & 828, the name of ONGC is not reflected despite the recording of acquisition in revenue recording by entry no. 6232 on 02/12/2008. The said fact clearly proves that under the T.P. Scheme even the Town Planner either has also considered the requirement of keeping additional land as it is not only for safety & security of Valve Station but also for the entire vicinity area or otherwise has failed to take note of revenue entry with respect to permanent acquisition by ONGC. Even otherwise, upon looking to the map of draft TP scheme, the Town Planner had failed to reflect the existing valve station of ONGC over oil pipeline Page 9 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 along with additionally acquired land for safety reasons.
7. It appears that in the year 1987, ONGC, for the safety purpose of the pipelines, it had permanently acquired land for valve station as detailed below. Land admeasuring 1100 sq. mtr. out of Survey no. 806/p2, total admeasuring 12141 sq.mts., land admeasuring 396 sq. mtr out of Survey no. 807 total admeasuring 15792 sq.mts. in Mouje: Dumas, Taluka: Choriyasi, Dist: Surat. The said acquisition has been recorded into revenue record vide entry no. 2827 by Talati on 05/08/1993.
8. Thereafter, secondly In the year 1997, ONGC, for the safety purpose of the pipelines, ONGC had permanently acquired land for valve station as detailed below. Land admeasuring 806 sq. mtr. out of Survey no. 806/p2 total admeasuring 12141 sq.mts., in Mouje: Dumas, Taluka: Choriyasi, Dist: Surat. In this regard, Special Land Acquisition Officer had passed award dt. 19/03/1998. It is submitted that in the year 2003, ONGC for the safety purpose of its valve station, had permanently acquired additional land as detailed below. The land admeasuring 2934 sq. mtr out of Survey no. 806/p2 total admeasuring 12141 sq.mts., Land admeasuring 2125 sq. mtr. out of Survey No. 807 total admeasuring 15792 sq.mts., Land admeasuring 2833 sq. mtr out of Survey no. 828 total admeasuring 23674 sq.mts. In Mouje: Dumas, Taluka: Choriyasi, Dist: Surat {further referred as "said additional land"}. The said acquisition has been recorded into revenue record vide entry Page 10 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 no.6232 by Talati on 02/ 12/2008.
9. From the record it appears that in consultation with the Chief Town Planner under provision of section 41(1) of Gujarat Town Planning and Urban Development Act -1976 on 11.02.2009 and declared its intention to prepare a draft Town Planning Scheme No. 76 ( Dumas - Vanta - Gaviar) (For Short "the Scheme No.76") on 07.08.2009, which was published In the Extra Ordinary Gazette - Part - II, Central Section of the Government of Gujarat and same was also published two Gujarati daily newspapers as well, and after following all due procedures as laid down in Gujarat Town Planning and Urban Development Act-1976 and the Gujarat Town Planning and Urban Development Rule - 1979 (For Short "
the Rules,1979") has called for public meeting, whereby suggestions and objections were called for from the public including the writ petitioners, after considering the suggestions and objections so received from the public at large, upon verification of records it appears petitioners not have filed objections before the Authority to the Proposed Draft Scheme No. 76 SMC and thus not have exercised their rights to object the proposed Draft Scheme and also not filed objections to the Draft Scheme No.76 SMC. The Authority had prepared and submitted the Draft Scheme No. 76 SMC, Surat, to the Urban Development and Urban Housing Department, Government of Gujarat (For the Short "the Government") on 03.11.2010 for according sanction under Page 11 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022 C/SCA/10549/2021 ORDER DATED: 03/02/2022 Section 48(2) of the Gujarat Town Planning and Urban Development Act - 1976 vide its communication bearing No. GH/V/ 43 of 2013/TPS - 1410/6154 - L.
10. In view of the aforesaid, the submission made on behalf of ONGC regarding sale of plots subsequent to the acquisition proceedings cannot be ruled out. At the same time, justification of the petitioner regarding not putting up the wall to demarcate the land acquired by the ONGC does not appear to be so innocent to be accepted. However, these issues best resolved by a fact finding proceedings rather than being dealt with under Article 226.
11. In the facts of the case, considering the stage at which the proceedings under the Town Planning Act have reached as recorded in the preceding pars, the Court finds no scope to interfere. Needless to say that the authority will take into consideration all the relevant aspects of the matter at an appropriate stage.
12. For the foregoing reasons, no case is made out for any interference. The petition deserves to be and is hereby dismissed. Notice is discharged. No order as to costs.
(A.Y. KOGJE, J) SHITOLE Page 12 of 12 Downloaded on : Sun Apr 24 11:45:13 IST 2022