Gujarat High Court
Gandubhai vs Town on 28 February, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/2437/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2437 of 2011
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GANDUBHAI
KANABHAI CHOHLA & 56 - Petitioner(s)
Versus
TOWN
PLANNER - RAJKOT MUNICIPAL CORPORATION & 1 - Respondent(s)
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Appearance :
MR
MEHUL S SHAH for
Petitioner(s) : 1 - 57.MR SURESH M SHAH for Petitioner(s) : 1 -
57.
None for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/02/2011
ORAL
ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and/ or order quashing and setting aside the impugned order/ communication dated 11.2.2011 at Annexure B to the petition of respondent no.1 herein Town Planning Officer, Rajkot Municipal Corporation issuing notice upon the petitioners under Section 61 r/w Rule 33 of the Gujarat Town Planning Act and Rules.
2. That the petitioners are alleged to be in occupation and possession of the land bearing Final Plot No.476, T.P. Scheme No.2, Rajkot. That the aforesaid land bearing Final Plot No.476 is reserved for public purpose of community hall, open theater etc., under the Finalized Town Planning Scheme No.2, Rajkot, which is sanctioned by the State Government in exercise of powers under Section 65 of the Gujarat Town Planning Act (herein after referred to as "the Act"). That as on finalization of Town Planning Scheme, Final Plot No.476 was reserved for public purpose of appropriate authority / RUDA/Rajkot Municipal Corporation, and the land in question absolutely vested in the appropriate authority and therefore, the occupation and possession of the petitioners were found to be illegal and they were required to be evicted and therefore, all the petitioners who were found to be in illegal occupation of Final Plot No.476 which was reserved for public purpose, were served with the notices under Section 68 of the Act r/w Rule 33 vide notices dated 29.1.2004 and 4.12.2004 and all the petitioners and those persons who were in illegal occupation of the land in question were directed to remove and vacate the land in question within stipulated time mentioned in the said notices. It appears that the petitioners preferred Special Civil Application No.5202 of 2009 before this Court and the same came to be disposed of by the learned Single Judge on the statement made by the learned counsel for the appropriate authority / corporation that without prejudice to the objection that the petitioners have no right of hearing at the stage of notice under Section 68 of the Act, petitioners shall be afforded opportunity of hearing if they remain present before the nominated authority on 20.11.2010. It appears that thereafter the petitioners were heard by the appropriate authority and considering the fact that the Town Planning Scheme was become final and the land in question is needed for public purpose and same is reserved for public purpose under the Town Planning Scheme No.2, Rajkot, petitioners are required to be removed as their occupation and possession is illegal, has passed the impugned order. It was also observed that as such there is no question of granting alternative accommodation to them, however on sympathetic and humanitarian ground, the Corporation has decided to give alternative accommodation to them and their names are included under the various scheme and consequently passed the impugned order directing the petitioners / those persons who are encroached upon the land in question and / or those who are in occupation and possession of the Final Plot No.476 to vacate from the same. Being aggrieved and dissatisfied with the aforesaid order / communication dated 11.2.2011 of the Town Planning Officer, Rajkot Municipal Corporation, petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India.
3. Shri Suresh M. Shah, learned advocate for the petitioners has vehemently submitted that as the land in question is reserved for public purpose and the same is not acquired, in view of the decision of the Hon'ble Supreme Court in the case Bhavnagar University Vs. Palitana Sugar Mill Ltd. And others reported in 2003(2) GLR 1154 the acquisition has lapsed and therefore, the impugned order deserve to be quashed and set aside. It is further submitted that as the land in question is reserved, authorities are required to acquire the land under Section 20 of the Act, which has not been acquired and therefore, acquisition has lapsed and therefore, the impugned order deserve to be quashed and set aside. In the alternative, it is submitted that though in the impugned order it is observed that it has been decided to give alternate accommodation to the petitioners under the J.N.N.U.R.M./B.S.U.P Scheme but nothing has been communicated to the petitioners on the same and therefore, unless and until the petitioners are allotted the alternate accommodation / quarters the impugned notice/ order is required to be stayed. By making above submissions and relying upon the above decision, it is requested to allow the present Special Civil Application.
4. Heard Shri Suresh M. Shah, learned advocate for the petitioners at length. At the outset, it is required to be noted that the land bearing Final Plot No.476 which is alleged to be in occupation and possession of the petitioners is reserved for public purpose of community hall, open theater etc. under the Finalized Town Planning Scheme No.2, Rajkot, which has been sanctioned by the State Government under Section 65 of the Act. Thus, on finalization of the Town Planning Scheme by the State Government under Section 65 of the Act, it has become a part of the Act and as per Section 67 of the Act, the land absolutely vest in the appropriate authority. As per Section 68 of the Act on and after the date on which the preliminary scheme comes into force, any person continuing to occupy any land who is not entitled to occupy under the Preliminary Scheme, shall, in accordance with the prescribed procedure be summarily evicted by the appropriate authority. The prescribed procedure of summarily eviction is provided under Rule 33 of the Gujarat Town Planning Rules. Thus, the petitioners have been served with the notices under Section 68 r/w Rules 33 of the Act as on after the Town Planning Scheme has become final and sanctioned under Section 65 of the Act , the petitioners and / or any other persons have no right occupy the land in question which is under reservation of the appropriate authority for public purpose. At this stage, it is required to be noted that the Town Planning Scheme which has become final and/ or sanctioned has not been challenged and it has attained the finality. Therefore, only inevitable consequence is to vacate the Final Pot in question considering Sections 67 & 68 of the Act r/w Rule 33 of the Town Planning Rules. Under the circumstances, it cannot be said that the impugned decision / communication is in any way illegal and/ or contrary to the provision of the statute which requires to be quashed and set aside. No illegality has been committed by the appropriate authority in passing the impugned order/ communication dated 11.2.2011.
5. Now, so far as the contention on behalf of the petitioner that as the land in question is reserved for public purpose the same is required to be acquired under Section 20 of the Act and as the land in question is not acquired under the provision of Land Acquisition Act, as required under Section 20 of the Act the acquisition has lapsed is concerned, there is no substance at all and is absolutely misconceived. Section 20 of the Act would be applicable in case where the land is reserved for public purpose under the Development Plan and not for the land which is reserved under the Town Planning Scheme. There is distinction and difference between the Development Plan and Town Planning Scheme. Section 20 of the Act speaks about the land reserved under the Development Plan. So far as Town Planning Scheme is concerned, it confers power upon the appropriate authority and the State Government to frame the scheme and while re-constituting the plots, there is always compulsory deduction out of which lands are required to be reserved for various public purpose, for which the land is not required to be acquired as the same is allotted on re-constitution of plots for public purpose in favour of the appropriate authority . As stated above, Section 20 of the Act would be applicable only with respect to the land reserved under the Development Plan. Therefore, the contention on behalf of the petitioners that as land in question is not acquired under Section 20 of the Act, the acquisition has lapsed, cannot be accepted. Consequently, the decision of the Hon'ble Supreme Court relied upon by the petitioner in the case of Bhavnagar University (supra) would also not be applicable.
6. Now, so far as the submission of the petitioners with respect to alternate accommodation is concerned, it is to be noted that as such there is no such prayer in the petition. Apart from that as such it has nothing to do with the implementation of the Town Planning Scheme which has become final. The prayer of the petitioners is to quash and set aside the impugned order / notice issued under Section 68 r/w Rule 33 of the Gujarat Town Planning Act, which is for implementation of the Town Planning Scheme, which has become final. To grant such a prayer would tantamount to restraining the Corporation / appropriate authority from performing their statutory duties to implement the scheme which has become final, which is not permissible. At this stage, the decision of the Hon'ble Supreme Court in the case of N.Nanalal Kiklawala and Another Vs. State of Gujarat and Others reported in (2005) 12 SCC 649 is required to be referred. In the case before the Hon'ble Supreme Court proposal for variation of sanctioned Town Planning Scheme was rejected which was the subject matter of Special Civil Application and still the Hon'ble Supreme Court directed that in view of rejection of the proposal of variation of Nagarpalika, statutory consequences which flow are to be worked out i.e. to implement the Town Planning Scheme. Even otherwise, as per catena of decisions once the Town Planning Scheme has become final, it is to be implemented by the appropriate authority. Therefore, the prayer of the petitioner to quash and set aside the impugned order/ notice which is passed under Section 66 of the Act r/w Rule 33 of the Gujarat Town Planning Rules and/ or to stay the same, cannot be granted. As statedabove, the same would tantamount to restrain the respondent to perform their statutory duties from implementation of Town Planning Scheme, which has become final. However, still it is observed that rejection of the petition, shall not preclude the petitioners from claiming alternate accommodation relying upon the some observations in the impugned order and if they are otherwise entitled to. However, it has nothing to do with the implementation of the Town Planning Scheme, which has become final and necessary consequences of implementation of Town Planning Scheme must follow.
6. In view of the above and for the reasons stated above, petition fails and same deserves to be dismissed and is dismissed.
(M.R.SHAH, J.) kaushik Top