Gujarat High Court
Mohanlal Sadaromal Lalvani & 3 vs Ahmedabad Urban Development Authority on 17 March, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/4924/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4924 of 2017
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MOHANLAL SADAROMAL LALVANI & 3....Petitioner(s)
Versus
AHMEDABAD URBAN DEVELOPMENT AUTHORITY....Respondent(s)
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Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Petitioner(s) No. 1-4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 17/03/2017
ORAL ORDER
1. Heard Mr. Mehul Shah, learned advocate for the petitioners.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: "(A) to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the notice dated 03.02.2017 issued by the respondent and be further pleased to direct the respondent not to take possession of part of the land of survey No. 2419 unless the possession and Final plot no.295 is given to the petitioners, while implementing Draft Page 1 of 8 HC-NIC Page 1 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER Town Planning Scheme no.7 (Kalol);
(B) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to restrain the respondent to take over possession of the part of the land of survey No. 2419 before giving possession of Final Plot no.295 to the petitioners;
(C) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct the respondent to maintain status quo qua original survey no.2419 owned by the present petitioners and restrain the respondent from taking any coercive action against the petitioners;
(D) ... ... ..."
3. It is a matter of record that the land occupied by the petitioners is within the area of Town Planning Scheme no.7 of Kalol. The record indicates that draft Town Planning Scheme no.7 is sanctioned by the State Government under Section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act") vide notification dated 29.10.2012. It appears that the land occupied by the petitioners being survey No. 2419 is allotted original plot no.295 and in lieu of that, the petitioners are allotted Final Plot no.295 of the same measurement i.e. 155 sq. mtrs. The petitioners were served with the notice dated 18.4.2016 under Section 48A Page 2 of 8 HC-NIC Page 2 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER read with Sections 67 and 68 of the Act as the land of survey No. 2419 being original plot no.295 is affected by 24 mtr. T.P. road. The record further indicates that after the said notice, the petitioner was again sent another notice for the same reason on 5.10.2016. Again, by a further notice dated 3.2.2017, AUDA has given a notice for implementation. Section 48A of the Act provides 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'), 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 Page 3 of 8 HC-NIC Page 3 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER
(ii) in subsection (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under subsection (2) of Section 48" were substituted."
4. It would be appropriate to mention that the Hon'ble Division Bench of this Court in Govindbhai Hirabhai Surati v. State of Gujarat & Ors., reported in 2003 (2) GLR 950 while considering the vires of the aforesaid section has observed thus: "6. The submission of the learned Counsel of the petitioners that Section 48A of the Act confers upon the State Government unguided power for taking possession of the land covered by the sanctioned Draft Town Planning Scheme rendering it arbitrary and unconstitutional is utterly misconceived. A bare perusal of the provisions of Section 48Aof the Act indicates that it, by itself, does not confer any power on the State to take possession of the land covered by the sanctioned Draft Town Planning Scheme. Indeed, it declares automatic vesting of the land upon existence of the conditions prescribed therein. The Government has not been given any power, discretion or choice in the matter of vesting. In other words, vesting contemplated under Section 48A is legislative vesting for specific purposes.
7. The submission of the learned Counsel of the petitioners that Page 4 of 8 HC-NIC Page 4 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER Section. 48A of the Act, in substance, has the effect of depriving the petitioners of their land either without compensation or with inadequate compensation has no legs to stand. The argument clearly betrays the ignorance of the provisions of Sections 82 to 87 of the Act, which provide detailed mechanism in respect of compensation to the affected persons. Therefore, the argument of the learned Counsel of the petitioners cannot be sustained.
8. With regard to relief (C) for quashing the notice dated 28th January, 2002, issued to the petitioners under Sections 48A, 67, 68 of the Act, and Rule 33 of the Rules made thereunder, the learned Counsel of the petitioners has not been able to point out any such infirmity, which may warrant interference by this Court. Sub section (3) of Section 48A of the Act provides that provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if sanctioned draft scheme were a preliminary scheme. Section 68 of the Act provides that on and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme, shall in accordance with the prescribed procedure, be summarily evicted by the appropriate authority. Applying the provisions of Section 68 with requisite modifications as provided in Subsection (3) of Section 48A, and taking note of the fact that the Page 5 of 8 HC-NIC Page 5 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER land of the petitioners vested in the appropriate authority, the petitioners ceased to be entitled to occupy the land in question, and by their continued occupation rendered themselves liable to be summarily evicted by the authority. Section 69 empowers the appropriate authority, inter alia, to remove, pull down, or alter any building or other work in the area included in the scheme which is such as contravenes the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with. This Section also empowers the appropriate authority to execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the appropriate authority that delay in the execution of the work would prejudice the efficient operation of the scheme. A perusal of the impugned notice clearly indicates that it has been issued to the petitioners in furtherance of and for carrying out the purposes of Sections 48A, 67 and 68 of the Act. The Court does not find any illegality in the impugned notice, and is of the opinion that it is perfectly in accordance and conformity with the provisions of the Act and the Rules made thereunder. Thus, the petitioners are not entitled to the relief (C)."
5. The learned advocate for the petitioners contended that as per the draft Town Planning Scheme, the petitioners are given Final Plot no.295 and therefore, the possession of the Final Plot should be given. It is contended Page 6 of 8 HC-NIC Page 6 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER that other persons residing in front of the land of the petitioners have not been given any notice. It is further contended that only near the land of the petitioner, 24 mtr. road is provided. Considering the notice and the provisions of Section 48A of the Act, the appropriate authority can implement the scheme at this stage by following the procedure as the land in question of the petitioners are forming part of the T.P. road. As far as 3 contentions which are raised by the petitioners are concerned, the scheme is still at the draft stage and only for the 4 purposes, which are enumerated in Section 48A of the Act, the scheme is being implemented and therefore, such grievance can be raised by the petitioners before the authorities even while implementing the scheme. As far as the contention raised by Mr. Shah that others are not given notice, it goes without saying that the road is to be laid down and therefore, the authority can do its way. The fact remains that all persons who are affected by the T.P. road have to be equally treated and the authority shall also take care of the said fact while implementing the notice.
6. As provided under Section 48A of the Act, the provisions of Sections 67 and 68 of the Act mutatis mutandis apply to the scheme at this stage also and therefore, even before Page 7 of 8 HC-NIC Page 7 of 8 Created On Mon Aug 14 14:08:53 IST 2017 C/SCA/4924/2017 ORDER implementing any of the notices, the authority has to follow the ratio laid down by the Apex Court in the case of M/s. Babulal & Co. & Ors. Vs. State of Gujarat & Ors., reported in AIR 1985 SC 613. The petitioners have to be given an opportunity of being heard before implementing the notice. It is also further clarified that it would be open for the petitioners to take all contentions, more particularly, even the contentions which are raised by Mr. Shah, learned advocate for the petitioners before this Court. The authority shall given an opportunity of being heard to the petitioners and pass a reasoned order before implementing the notice.
7. Accordingly, the petition is disposed of.
Direct service is permitted.
(R.M.CHHAYA, J.) mrp Page 8 of 8 HC-NIC Page 8 of 8 Created On Mon Aug 14 14:08:53 IST 2017