Gujarat High Court
Ramsingh Sardarsingh Kumpavat vs State Of Gujarat on 20 March, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/3580/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3580 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3582 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3583 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3584 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3585 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3587 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3588 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3589 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3590 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3591 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3592 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3593 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3594 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3595 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3596 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3597 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3598 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3599 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3600 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3601 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3602 of 2018
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C/SCA/3580/2018 ORDER
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R/SPECIAL CIVIL APPLICATION NO. 3603 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3605 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3606 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3607 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3608 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3609 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3610 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 3611 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 4196 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 4198 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 4200 of 2018
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RAMSINGH SARDARSINGH KUMPAVAT Versus STATE OF GUJARAT ========================================================= Appearance:
MR DINESH B PATEL(3495) for the PETITIONER(s) No. 1 MR JV VAGHELA(5809) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 3,4,5 MS MANISHA LAVKUMAR SHAH, GP with MR. UTKARSH SHARMA AGP for the RESPONDENT(s) No. 1 MR SATYAM Y CHHAYA(3242) for the RESPONDENT(s) No. 2 ========================================================= CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 20/03/2018 ORAL COMMON ORDER
1. This group of petitions are filed by the petitioner under Article 226 Constitution of India arising out of a common action Page 2 of 26 C/SCA/3580/2018 ORDER of the respondent authority in passing the order whereby the Town Planning Scheme No. 86 (SarkhejOkafShavadiMakarba) Ahmedabad is sought to be implemented Since the common questions of law and fact is arising in this group of matters, the same is requested to be disposed of and dealt with by way of present common order. As a result of this, by treating Special Civil Application No. 3580 of 2018, as a lead matter, this group pf petitions are dealt with by this present order. 1.1. This group of petitions in which as per the say of learned advocate there is no other distinguishable issue and all are taking the same stand as that of the petitioner in Special Civil Application No. 3580 of 2018. Hence, all these petitions are disposed of by this common order.
2. Since Special Civil Application No. 3580 of 2018 is treated as a lead matter, the facts are taken from the said petition. It is the case of the petitioner that one Savitaben Laljibhai, erstwhile owner of the land bearing Survey No. 84 having Final Plot No. 69 in Draft Town Planning Scheme No. 86 (SarkhejOkafShavadi Makarba) over which a shopping complex has been constructed in the name of 'Bhumi Complex' and the present petitioner and Page 3 of 26 C/SCA/3580/2018 ORDER other petitioners are the occupiers of their respective shops in 'Bhumi Complex'. So far as Special Civil Application No. 3580 of 2018 is concerned, the petitioner has purchased Shop No. 11 on the ground floor by executing Agreement to Sale (Vechankarar) through Power of Attorney and thereby occupied Shop No. 11 in which, in the name of 'Labh Enterprise' the business is being run. It is further the case of the petitioner that not only the petitioner is the occupying the said Shop No. 11, but is also paying regularly the municipal tax relating to it. The petitioner is said to have received notice dated 01.12.2017 in respect of the aforesaid Draft Town Planning Scheme No. 86 under Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as the "Rules") read with Section 48A and Section 68 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the "Act) and this notice is also received by the other occupiers of this 'Bhumi Complex'. By virtue of the said notice, it has been informed that for the purpose of construction of service road, a direction is issued to vacate the possession and for enforcement of the scheme, the petitioner was invited to offer the objections and explanation which has been submitted by the petitioner on 13.12.2017.
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2.1. It is further the case of the petitioner that after submitting the reply along with other occupiers of the 'Bhumi Complex' on 27.12.2017, respondent no. 5 - Corporation has issued notice for the purpose of arranging hearing before the competent authority on 05.01.2018 pursuant to which all the members of the 'Bhumi Complex' went to the appropriate competent authority requesting not to demolish the portion of their shops and submitted a detailed representation. Pursuant to the said written representation, personal hearing was given. After hearing and upon representation, the authority was pleased to pass the order on 23.01.2017 whereby, the request of the petitioner along with other occupiers of ' Bhumi Complex' has not been acceded to and directed all the concerned persons to vacate the premises within a period of seven days.
2.2. It has also been averred in the petition that aggrieved by the said action of the respondent Corporation, under the Right to Information Act, the petitioner as well other persons have requested for certain information to be supplied, but as per the say of the petitioner, same has not supplied and it has come to the notice of the petitioner that the State Government upon Page 5 of 26 C/SCA/3580/2018 ORDER representation of the just adjacent property has directed the authority concerned not to take any action till the finalization of the Town Planning Scheme, whereas here, as per the say of the petitioner by virtue of the order dated 23.01.2018 an action is sought to be initiated. As a result of this left with no other alternative, the petitioners have rushed down to this Court by way of the present petition under Article 226 of the Constitution of India for the purpose of challenging the legality and validity of the impugned order dated 23.01.2018 and also sought consequential relief.
2.3. Since the aforesaid situation was visualized by the Court and one appealable circumstance was brought to the notice of the Court that in adjacent property, the State Government has directed the respondent authority not to act upon till the finalization of the Town Planning Scheme, the Court called upon the respondent. On an advance copy being served, learned advocate Mr. Satyam Chhaya represented the respondent authority and learned Government Pleader Ms. Manisha Shah along with Mr. Utkarsh Sharma learned AGP has represented the State Government. As a result of this, subsequently the hearing is than kept on 19.03.2018.
Page 6 of 26 C/SCA/3580/2018 ORDER
3. Learned advocate Mr. D. P. Patel and learned advocate Mr. J.V. Vaghela represented the petitioner in this group of petitions and has contended that the action on the part of the respondents is not only unjust, arbitrary but tilted with mala fide. It has been contended that no adequate opportunity was given to represent the case and the ultimate action is violative of the principles of natural justice. It has also been contended that there is no need of demolition of the shops simply for the purpose of putting the construction of service road. It has also further been contended that this facility cannot be created by snatching away the livelihood of the petitioner. Learned advocate Mr. Patel has further contended that while taking action and passing the order, the mandatory requirement of procedure has not been observed. As a result of this, even if hearing is given, the same cannot be treated as hearing in true sense. It has further been contended that the action on the part of the respondent authority is not only unjust, arbitrary, but sheer discriminatory in nature, particularly, when in the very same area with respect to another complex/property, the State Government has directed not to act upon till the finalization of the Town Planning Scheme and there was no other germane Page 7 of 26 C/SCA/3580/2018 ORDER reason for the authority to discriminate the present petitioners and demolish their property and therefore, learned advocate Mr. Patel vehemently contended that this action requires interference of this Court.
3.1. Learned advocate Mr. Patel has further contended that these petitioners are the owners and occupiers of the property in question since long and they being the lawful owners cannot be deprived of their property rights in such a manner which would directly hit Article 19(1) of the Constitution of India. Learned advocate Mr. Patel has further contended that apart from this if slight change is to be affected even in respect of erecting the service road, then also substantial portion of premises could be saved and there is ample power with the competent authority to vary the scheme. Hence, to act upon the order without looking at the scope of minimum damage, action cannot be said to be justified. Learned advocate Mr. Patel has further contended that unless and until the Town Planning Scheme is finalized, the action of demolition cannot be allowed to take place and though every details have been provided and the circumstance have been brought to the notice of the authority, that there is no need of widening of road, still the authority went on to demolish the Page 8 of 26 C/SCA/3580/2018 ORDER property and it is this case in which such arbitrary action on the part of the respondent authority deserves to be corrected in any case. Learned advocate Mr. Patel has vehemently contended that the authority may be directed to see that under the guise of service road the entire portion may not be put to demolish and this being clear example of acting as powered charged authority, interference of this Court under Article 226 of the Constitution of India deserves to be made.
3.2. For the purpose of strengthening the case, learned advocates Mr. Patel and Mr. Vaghela has relied upon the decision of this Court in the case of Purshottambhai Chandubhai Gajera v. State of Gujarat reported in 1999 (0) GLHEL - HC 209766 : 2001 (1) GCD 501 and relying upon this, a contention is raised that the impugned notice is without authority of law. No other submissions have been made.
4. To meet with the stand taken by the petitioners, learned advocate Mr. Satyam Chhaya appearing for the respondent authority has vehemently contended that the authority before passing the order has extended full opportunity to the petitioner and the affected persons and there is no material breach of any Page 9 of 26 C/SCA/3580/2018 ORDER nature which would be said to be unjust. It has been contended by learned advocate Mr. Chhaya that not only the hearing in adequate form has been given, but the authority has given full opportunity to represent the case and after effective hearing, keeping in view the parameters of the provisions of law an order is passed which cannot be said to be erroneous in any form. Learned advocate Mr. Chhaya has further contended that all the affected persons of 'Bhumi Complex' have been given enough opportunity and after considering the object of the scheme and after considering the respective stand taken by the petitioners, who are sought to be affected, an order is passed and as such since in the decision making process also, there is no error of any nature, hence, this impugned order cannot be assailed by the petitioner.
4.1. Learned advocate Mr. Chhaya has submitted that it is the settled position of law that whenever there is a conflict between the public interest and the private interest, private interest has to be merged and the public interest must be given the predominance. Before sanctioning of the Town Planning Scheme, scientific survey is being undertaken of the area and only thereafter looking to the surrounding circumstance, the scheme Page 10 of 26 C/SCA/3580/2018 ORDER is being floated and approved and therefore, it is not at the whims of any authority that just for the sake of demolishing the petitioners property this road widening is made. On the contrary, under the instructions, learned advocate Mr. Chhaya has pointed out that the situation of that area is such where the road widening and the end of service road is very much in need. Learned advocate Mr. Chhaya has contended that proper demarcation has been made before passing the order which has been considered at length and each person is made aware about the fact of cut and demolition which is to take place to their respective portion and as such it has been contended that this is not in any manner can be said to be arbitrary act on the part of the authority.
4.2. Learned advocate Mr. Chhaya has stated that detailed procedure which is required to undergo under the provisions of the Act and the Rules has been observed and mandatory requirement has also been fulfilled and substantial compliance has taken place of mandate of the statute and therefore, the decision making process can never be said to be erroneous. Learned advocate Mr. Chhaya has contended that need of the widening of the road is being evaluated by the competent Page 11 of 26 C/SCA/3580/2018 ORDER authority and only thereafter the scheme has been given effect to by virtue of provisions of Section 48A of the Act and undisputedly the portion of the property is forming the part of the Town Planning Scheme which is to be effected and by virtue of Section 48A of the Act the land shall vests absolutely in the appropriate authority free from all encumbrances on the date on which the draft scheme is sanctioned. Here, in this case, this draft scheme No. 86 referred to above has already been sanctioned on 10.09.2012 by virtue of which portion is required to be handed over to implementing authority namely the Ahmedabad Municipal Corporation and while doing so, the procedure set up by provisions of statue is already observed. Adequate opportunity is given to all the representatives of the petitioners who are the occupiers and after considering their detailed representation and after giving them personal opportunity in complete compliance of the principles of natural justice, the order is passed on 23.01.2018. Resultantly, by virtue of order impugned in the petition, possession of the property is directed to be handed over within a period of seven days failing which, consequential steps will be taken against the erring persons. From the bare reading of the impugned order, as per the say of learned advocate Mr. Chhaya it cannot be said that Page 12 of 26 C/SCA/3580/2018 ORDER there is any non compliance on the part of the authority in observing the procedure set up by law. Hence considering this set of circumstance in the larger interest of the public if private interest is evaluated the authority has rightly given predominance to public interest by passing the impugned order. 4.3. With a view to substantiate his contention learned advocate Mr. Chhaya for the authority has relied upon the decision of this Court in the case of Satyadev Parasnath Pandey v. State of Gujarat reported in 2015 (0) AIJEL HC 232837 : 2015(2) GLR 1475 as well as the decision delivered by the learned Single Judge dated 08.03.2016, passed in Special Civil Application No. 1089 of 2015 and the same having been confirmed by the Division Bench in Letters Patent Appeal 318 of 2016 in the case of Ramanbhai Hargovinddas Limachia v. State of Gujarat reported in 2016(0) AIJEL HC 235218 :
2016(3) GLR 2695 and then contended that by virtue of the proposition of law laid down by this Court in the aforesaid decisions, no case is made out by the petitioner. Resultantly all the petitions are devoid of merits deserves to be dismissed. Page 13 of 26 C/SCA/3580/2018 ORDER 4.4. Learned advocate Mr. Chhaya has then contended that a point which is prima facie looked impressive is sought to be raised in the petitions with respect to another adjacent property and the State Government has directed not to take action till finalization of the Town Planning Scheme, but then under the instructions learned advocate Mr. Chhaya has pointed out specifically that the same is absolutely incorrect. On the contrary, by communication dated 11.07.2017 the State Government has not only rejected the request, but has specifically directed forthwith to implement the scheme and report to the State Government. This communication dated 11.07.2017 is placed on record (xerox copy) and has contended in that circumstance also no point is available to the petitioner. 4.5. Yet another decision which has been brought to the notice of this Court by learned advocate Mr. Chhaya is in the case of Satyadev Parasnath Pandey (supra) passed by the learned Single Judge of this Court by referring to it, it has been contended that the petitions deserves to be dismissed as there is no breach of any mandatory procedure. Hence keeping this circumstance in mind, the order passed by the authority deserves to be confirmed.
Page 14 of 26 C/SCA/3580/2018 ORDER 4.6. Learned advocate Mr. Chhaya as well as learned Government Pleader Ms. Manisha Lavkumar Shah appearing with learned AGP Mr. Utkarsh Sharma for the State Government has also reiterated that the State Government has not directed even adjacent building as tried to be canvassed and therefore, there is no element of any discriminatory treatment meted out to the petitioner. When that be so, it is not open to thwart the process of erection of road over the area by allowing the petitioner to invoke the extra ordinary jurisdiction and by referring to these submissions learned advocates for the respondents have requested the Court to dismiss the petitions.
5. Having heard the learned advocates for the respective parties to the proceedings and having gone through the material on record which is tried to be pressed into service and in view of the principles laid down by the catena of decisions referred to by the respective sides, this Court is of the opinion that there is a substantial compliance of the mandate of the statute and there is no material lapse of any nature in observing the provisions and in fact it is reflecting from the record that the order in question has been passed in complete compliance of the Page 15 of 26 C/SCA/3580/2018 ORDER principles of natural justice and not only are the representatives been allowed, but right to make the personal representation is also extended to the relevant persons who are affected and it is only after extending such opportunity of hearing, a subjective satisfaction is arrived at in which it is found that no error appears to have been committed.
5.1. It is also observed by the Court that detail contentions have been raised by the petitioner and have been dealt with also and keeping in view the fact that Sections 48A and Section 68 of the Act with Rule 33 of the Rules, the order is passed which cannot be said to be erroneous in any form. The decision making process by the authority is also not found faulty, in fact all the relevant statutory provisions have been kept in mind while passing the ultimate order of handing over the possession to the implementing authority. As a result of this, the petition is found to be devoid of merits.
5.2. This Court has called upon the respondent authorities substantially on the ground that one of the contention which has been raised is about the discriminatory treatment. The contention is generated in para 11 of the petition on oath, but Page 16 of 26 C/SCA/3580/2018 ORDER then after the production of the communication dated 11.07.2017 it has been brought to the notice of this Court that it is on the contrary other way round. In fact, the State Government has directed to see that this scheme which is related to road is directed to be concluded at the earliest and has categorically stated that since public interest is involved, no such representation be considered. Upon perusal of this documents, learned advocate Mr. Patel has also not controverted the same and rather has not precipitated the said plea of discrimination any further. Hence, considering the aforesaid set of circumstance, even this plea of discrimination is also appearing to be not cogent enough.
5.3. The resultant effect of the order dated 23.01.2018 has got effect on the petitioner and occupier of 'Bhumi Complex to some extent, but the Court even independently has also examined as to whether the plea of discrimination is visible, which the Court finds none and therefore, the ultimate effect of this examination would lead to a situation that simply because the petitioner and other persons are affected on account of implementation of the said scheme, public interest may not be allowed to be sub merged.
Page 17 of 26 C/SCA/3580/2018 ORDER 5.4. In the context of decision which has been brought to the notice and relied upon by learned advocates Mr. Patel as well as Mr. Vaghela a decision delivered by the learned Single Judge of this Court in the case of Purshottambhai Chandubhai Gajera (supra) in which by a brief order, the notice which was issued under Section 68 of the Act was found to be without jurisdiction, but here is a case in which no circumstance is available. On the contrary, effective hearing has been given and every details have been examined and only thereafter the impugned order is passed and therefore, it is difficult for this Court to adopt the principles of the said decision as straightjacket formula as facts are not such as compared to the present case on hand and therefore, a slight change in the fact would make a world of difference in applying the principles as precedent and hence, the said decision is of no assistance to the petitioners.
5.5. On the contrary, there appears to be full force in the submissions made by learned advocate appearing for the respondent authorities inasmuch as the subsequent decision which has taken place in respect of the road widening issue has covered up this very provisions of law and has propounded that Page 18 of 26 C/SCA/3580/2018 ORDER no case is made out. Some of the relevant extract contained in the said decision since are worth to be taken into consideration the same are reproduced hereinafter for arriving at the ultimate decision :
15. It refers to the situation where the person complaining of the violation of rules of natural justice is required to show any prejudice caused to him. In the facts of the case the petitioners cannot say that any prejudice is caused to them. Therefore the submissions made by learned Counsel Shri S.P.Majmudar with much emphasis on this aspect about the individual notice having not been served and therefore it is in violation of principles of natural justice has no merit. One more aspect which is required to be considered is that the allotment of the flat was made to the petitioners but as stated by learned Counsel Shri S.P.Majmudar that as it was not suitable and therefore the petitioners had not given the option for the same. This has another aspect with regard to the allotment of the another land or the compensation. The issue involved in the present case is with regard to the purported exercise of power and the scheme under which the land is covered. Section 48(A) referred to vesting of land in appropriate authority. It provide:
"(1) Where the 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."
Thus, the provisions of Section 48(A) clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. As stated in the affidavit in reply, the draft scheme has been approved by the State Government and therefore the submissions cannot be accepted. Again, before the scheme can be finalized under Section 52, it is required to give the Page 19 of 26 C/SCA/3580/2018 ORDER notice following the procedure under Rule 26 and the representation could be made. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Babulal Badriprasad Varma v. Surat Municipal Corporation and ors. (supra) which has been referred to by both the sides. The Hon'ble Apex Court has discussed with regard to the provisions of this very Act and the procedure which is required to be followed. The Hon'ble Apex Court referring to this very issue with regard to the service of the special notice has made the observations and the issue was kept open though it was observed that the Appellant is not entitled to any relief even if it was obligatory to serve a special notice. In the case before the Hon'ble Apex Court, it was the tenant who had made a grievance and therefore referring to Rule 21 and 26, the observations have been mad that the person interested could make the representation whereas Rule 17 as stated above refers to the owners of the land who would have the opportunity. Thus, the scheme of the Act and the Rules take sufficient care that the opportunity is granted. In any case as observed when the public notice is also issued for the same purpose, the underlying object or the purpose is to give a notice to the public at large and the person interested to make his suggestions or objections and the individual notice is by way of additional opportunity but it would not make the action or the procedure invalid. If such an interpretation is made that even though public notice is issued and the private or the special notice is not served it would make the entire procedure invalid, then the very object of the public notice as referred to in the statute is redundant and frustrated. Therefore the underlying object of the statute has to be considered and when the statute provides for the public notice as sufficient notice and when the legislature has also provided for a public notice, it cannot be interpreted in a manner which frustrate or negate the very provision of the statute.
16. A useful reference can also be made to the judgment of this Court (Coram: A.R.Dave,J) reported in 2004 (3) GLH 675 - Jethabhai Mepabhai Makwana v. State of Gujarat wherein it has been observed that in the process of town planning some one is bound to be badly affected and the variation in the scheme cannot be readily accepted. Again a Page 20 of 26 C/SCA/3580/2018 ORDER reference is made to the doctrine of proportionality that the balance has to be struck between the individual claim and the right of the Society. It is 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 said doctrine has been violated."
Therefore, the individual may have a recourse including the compensation, and therefore, the contention made by learned Counsel Shri S.P.Majmudar cannot be accepted."
5.6. Before relying on aforesaid observations, it deems it necessary even to refer to some of the relevant provisions contained under the Act. Section 49 of the Act which deals with the 'Restriction on use and development of the land after declaration of a scheme'. The effect of this provisions indicates that the date on which draft scheme is published under Section 41 of the Act restriction of use of development of the land was applied which would mean that when the land in question is demarcated for the town planning road purpose, the same cannot be used for any other purpose. Section 48A of the Act is dealing with the issue of 'Vesting of land in appropriate authority' which reads as under:
"Section 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 Page 21 of 26 C/SCA/3580/2018 ORDER 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 draft scheme is sanctioned under subsection (2) of Section 48"
were substituted."
5.7. It is undisputed position that the land upon which the property of petitioners is situated, the said portion of it is forming part of the Town Planning Scheme and as such, the said portion shall vests absolutely in the authority free from all encumbrances on the date on which the draft scheme is sanctioned. Here in the present case on hand on account of Sarkhej Gandhinagar Highway 60 meter road parallel 12 meter service road is contemplated. This road erection is effecting all these petitioners and for that purpose by virtue of Section 48A read with Section 68 of the Act and Rule 33 of the Rules, notices have been issued to all the persons affected including the petitioner and in response thereto, written representations have also been made before the authority. Further more while dealing Page 22 of 26 C/SCA/3580/2018 ORDER with the representation, even personal hearing was also extended on 03.01.2018 and all the occupiers have been extended such an opportunity of hearing for three intermittent days continuously and thereafter upon analyzing the effect of the scheme and representation of the petitioner and the law applicable, it was found by the authority that such objections as against the public interest are not to be considered as a result of which, the order is passed, which clearly reflects proper application of mind as well. All the petitioners and occupiers whether through the Power of Attorney or on the sale deed also appears to have been considered and having found that the portion is forming part of the Town Planning Scheme which is already sanctioned, the authority found no substance in the objections raised by the petitioner and the other affected persons.
5.8. Now in this context, it is found that the based upon micro level planning the provision of 12 meter road in parallel to highway is contemplated and therefore this necessity whether it is proper or not again cannot form the subject matter of exercising extra ordinary jurisdiction. The Town Planning Scheme in a way is micro planning of what is provided and Page 23 of 26 C/SCA/3580/2018 ORDER therefore it is not for the Court to examine whether this need is expedient or not and to what extent. As a result of this, the contention that there is no necessity of service road in the area and also that if still curve is to be affected to save the property of the petitioner, this issue cannot be examined by the Court in extra ordinary jurisdiction as also observed by one of the decision of this Court in the case of Jethabhai Mepabhai Makwana V. State of Gujarat reported in 2004 (3) GLH 675, wherein it is observed in no uncertain terms that in the process of Town Planning someone is bound to be adversely affected and the variation in the scheme cannot be rightly accepted. Again a reference is made to the doctrine of proportionately that the balance has to be struck between the individual claim and interest of the society at large and in that context it is observed by the Court that the doctrine of proportionality itself provides that in the process of striking balance for betterment of the society at large, if a person has to suffer it cannot be said that the said doctrine has been violated and therefore, an individual may have an ultimate remedy and recourse including seeking compensation if any. As a result of this, plea of damage to the petitioner and the adverse effect cannot be evaluated as against the interest of the Society at large in present proceedings. Page 24 of 26 C/SCA/3580/2018 ORDER 5.9. A further decision delivered by the Division Bench of this Court in the case of Ramanbhai Hargovinddas Limachia (supra) in which the provisions of Section 48 as well Sections 68 as well as 69 of the Act have been analyzed including Rule 33 of the Rules and has observed while confirming the decision delivered by the learned Single Judge that no case is made out in that case. Ultimately the Letters Patent Appeal came to be dismissed. A reference deserves to be made of in the said judgment to some extent. While considering Section 48 of the Act, the Court has observed in para 3.3. that 'considering Section 48A of the Act as the land in question is needed for 36 meter road under the sanctioned Draft Town Planning Scheme, the provisions of Section 68 and Section 69 of the Act shall mutatis mutandis apply to the sanctioned draft scheme'. Taking into consideration, here also, the draft scheme has already been sanctioned and has got the effect as if it is a preliminary scheme and by virtue of Section 48A of the Act portion of the property/land in question is forming part of the Town Planning Scheme, the same shall vests absolutely in appropriate authority free from all encumbrances and here in this case the objections which have been raised have been dealt with by the authority with true application of mind. Page 25 of 26 C/SCA/3580/2018 ORDER The procedure established by law has been substantially complied with by the authority and since action is in consonance with the provisions of Town Planning Act and Rules, more particularly, Section 48A, Section 67, Section 68 of the Act and Rule 33 of the Rules, it appears that the petitions being devoid of merit, deserve to be dismissed.
6. The aforesaid situation in overall form appears to this Court that there is a substantial compliance of provisions of the Act and the Rules. There is also effective extension of opportunity to represent the case and the decision making process in the form of order dated 23.01.2018 is also appears to be not erroneous in any form. Hence, no case is made out by the petitioners. Hence, these group of petitions being devoid of merit, the same deserves to be dismissed. Accordingly, all the petitions are dismissed by way of this common order with no order as to costs.
(A.J. SHASTRI, J.) /phalguni/ Page 26 of 26