Gujarat High Court
Panchal Jagdishbhai Prabhubhai vs State Of Gujarat on 1 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7859 of 2021
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 3
of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7859 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
===================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
===================================================
PANCHAL JAGDISHBHAI PRABHUBHAI
Versus
STATE OF GUJARAT
===================================================
Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3
,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,
50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,7
0,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90
Page 1 of 46
Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION
C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024
undefined
,91,92,93,94,95
MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 2,3
MR. SHALIN MEHTA, SENIOR COUNSEL WITH MR. MRUGESH A
BAROT(6709) for the Respondent(s) No. 4
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
===================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/02/2024
CAV JUDGMENT
1. RULE, returnable forthwith. Learned advocates appearing for the respective parties waive service of Rule for and on behalf of the respective parties.
2. By way of the present Petition, petitioners herein have prayed for the following reliefs:
"(A) that the Hon'ble Court be pleased to issue a writ of mandamus and/or certiorari or a writ in the nature of mandamus and/or certiorari or any other appropriate writ, order or direction
(i) quashing and setting aside Town Planning Scheme No. 45/B Chandlodiya to the extent it pertains to land bearing Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Survey No.80, Village Chandlodiya, District Sub-District Ahmedabad;
Alternatively, commanding the respondents to take all steps to vary Town Planning Scheme No. 45/B, Chandlodiya to the extent it pertains to land bearing Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Survey No.80, Village Chandlodiya, District, Sub- District Ahmedabad so as not to treat road situated between Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Page 2 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Survey No.80, Village Chandlodiya, District Sub-District Ahmedabad as a public street and not to deduct any land from Original Plot No.21, Revenue Survey No.80, Village Chandlodiya, District, Sub-District Ahmedabad;
(ii) Commanding the Respondents not to treat and /or use road situated between Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Survey No.80, Village Chandlodiya, District Sub- District Ahmedabad as a public street in any manner;
(iii) Quashing and setting aside order dated 29.04.2021 passed by Assistant Town Planning Officer (North West Zone) (at Annexure T);
(B) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay Town Planning Scheme No. 45/B Chandlodiya to the extent it pertains to land bearing Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Survey No.80, Village Chandlodiya, District, Sub-District Ahmedabad; (C) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to restrain the Respondents from treating and/or using the road between Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Survey No.80, Village Chandlodiya, District Sub-District Ahmedabad as a public street in any manner;
(D) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay order dated 29.04.2021 passed by Assistant Town Planning Officer (North West Zone) (at Annexure T) (E) for ad-interim relief in terms of prayer (B), (C) and (D) above;
(F) For costs;
(G) for such other and further reliefs as the circumstances may require."
3. Brief facts leading to the filing of the present Petition read thus:
3.1. The petitioners are the occupants of various sub-plots Page 3 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined situated at Raykanagar Society, Chandlodiya, Ahmedabad. The dispute in question pertains to the land admeasuring Acre 2-07 Guntha bearing Survey No. 80, Village: Chandlodiya, District Sub-District: Ahmedabad. The said land was originally owned by one Bababhai Vithhaldas, who passed way on 13.04.1983. The said land came to be sold to promoters of Raykanagar Cooperative Housing Society (proposed). The Society was developed from 1984 and 96 sub-plots and internal roads were carved out on Survey No. 80 and the said plots were sold to various persons. At present, approximately 137 residential units are situated on the said land. The main internal road of the society is of approximately the width of 15 to 25 feet, which ends at sub-plot no. 96. There is a temple on Survey No. 96, which was built with contributions of residents of the society.
The internal roads including the one that leads to the temple are used by the residents also for the purpose of parking their vehicles, for organizing events like marriage, other social gathering, prayer meetings, religious functions as well as, as a space for children to play. The petitioners apprehend that the implementation of the Scheme in question, would result in Page 4 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined eventual demolition of the temple and many parts of residences, which abut on the said internal road.
3.2. To the west of revenue Survey No. 80 their lies revenue Survey No. 93, which came to be divided into Survey No. 93/1 and 93/2. Land bearing revenue Survey No. 93/2 also belonged to Bababhai Vithhaldas, who sold it to Dharmaji Achalaji, Bhimaji Achalaji, Baldevbhai Achalaji and Naranbhai Achalaji vide registered sale deed dated 17.06.1968. In the year 1996, said Shakariben and Dharmaji Achalaji and others filed Regular Civil Suit No. 771 of 1996 against the promoters of Raykanagar Society bearing Survey No. 80, claiming right of way. It was contended that the only way to Survey No. 93/2 was from Survey No. 80. The said Suit came to be dismissed by the Joint Civil Judge (S.D.), Mirzapur vide judgment and decree dated 29.06.2019, wherein, it was held that the plaintiffs had their road to access land bearing Survey No. 93/2 elsewhere. 3.3. The respondent No.2 - Ahmedabad Municipal Corporation introduced Town Planning Scheme No. 45/B- Chandlodiya in such a way that it gave access to land bearing Page 5 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Survey No. 93/2 from an internal road of the society proceeding on an assumption, as if the internal road is a public street. Under the Town Planning Scheme, revenue Survey No. 80 is allotted Original Plot No. 21 and Final Plot Nos. 21/1 and 21/2. The internal private road is shown as a 7.5 meter public road. It shows deduction of a very small portion of land which forms part of Sub-Plot No. 96 and Sub-Plot No.6. That half of land of Survey No. 96 has a temple of a deity and the other half is lying vacant. The implementation of the Town Planning Scheme, by deducting a small portion of land lying vacant of sub-plot No. 96 admeasuring approximately 100 sq.mtrs. turned a blind eye and so far as the internal road is concerned, it proceeded as if it was a public street.
3.4. The Chairman/ Secretary of Raykanagar Society addressed a communication dated 23.05.2016 to the Chief City Planner, objecting to the draft Scheme, contending that the private road of the society is wrongly shown as a public street. Further, the civil proceedings were pending, the road cannot be laid from sub-plot no.96, which is of the private ownership. On Page 6 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined 25.06.2016, the respondent Corporation published a notification, considering the representation made by the petitioners. 3.5. It is the case of the petitioners that the respondent Corporation took no steps to address the issues raised by the petitioners. The society raised objections on 07.04.2018, copy of which is duly produced at Annexure-O. The respondent no.2 - Corporation issued notices dated 02.02.2021 under Section 48-A r/w. Section 68 of the Gujarat Town Planning and Urban Development Act (for short 'the TP Act') r/w. Rule-33 stating that on reconstitution of the original plot, the land as per the attached sketch was allotted for use under Section 40(3)(c), (f),
(g) and (h) and that the said land shown in yellow colour be handed over in 10 days. One Notice was addressed to Administrator / Raykanagar Welfare Association (Shri Ambe Mataji Mandir), another to Chairman / Secretary Shri Raykanagar Society and the third to Panchal Deviben Ramabhai - petitioner no. 8 herein. The first two notices were pasted on the walls. The respondent no.2 called upon the petitioners for a hearing vide notice dated 25.03.2021. Upon hearing on 08.04.2021, the Page 7 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined respondent no.2 called upon the petitioner society to handover the possession of the land in question within 7 days, vide order dated 29.04.2021, copy of the same is duly produced at Annexure-T. It is the case of the petitioners that while issuing the impugned communication, the respondent no.2 did not take into consideration the issues raised by the petitioner. The petitioners addressed a notice dated 07.05.2021 objecting to the scheme, which is duly produced at Annexure-U. 3.6 In light of the aforesaid facts, the petitioners are constrained to approach this Court invoking Article-226 of the Constitution of India challenging the Town Planning Scheme and other consequential and allied reliefs as stated herein-above.
4. Heard Ms. Megha Jani, learned advocate appearing for the petitioners, Mr. Nandish Y. Chudgar, learned advocate appearing for the respondent nos.2 and 3, Mr. Shalin Mehta, learned senior counsel assisted by Mr. Mrugesh A. Barot, learned advocate appearing for the respondent no.4 and Ms. Dhwani Tripathi, learned Assistant Government Pleader appearing for the respondent - State.
Page 8 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined SUBMISSIONS ON BEHALF OF THE PETITIONERS:
5.1. Ms. Megha Jani, learned advocate appearing for the petitioners submitted that the Town Planning Scheme in question is overreaching the process of law as the same is administrative order, which violates the judicial order, whereby, the Suit which was filed by the erstwhile owner being Regular Civil Suit No. 771 of 1996 came to be dismissed.
5.2. It was submitted that the Town Planning Scheme in question has been introduced to facilitate the rights of the private respondent and to accommodate the respondent no.4. 5.3. It was submitted that the aforesaid has not been considered by the respondent authority, while issuing Notice under Section 48-A r/w. Section 68 of the T.P.Act r/w. Rule-33, wherein, it is stated that on reconstitution of the original plot, the land as per the attached sketch was allotted for use under Section 40(3)(c), (f), (g) and (h) and that the land shown in yellow colour be handed over in 10 days. Ms. Jani, learned advocate placed reliance on the distinction between the legislative Page 9 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined and executive order. It was submitted that order passed by the Town Planning Officer being a legislative order, the same cannot be held to be superior to judicial order i.e. issuance of the said Town Planning Scheme is violative of the judicial proceedings, that is the dismissal of the Suit being Regular Civil Suit No. 771 of 1996. It was submitted that the said scheme even otherwise, falls within Clause-E of sub-section and that it is erroneous to have considered the same as to fall under Section 40(3)(c). 5.4. Reliance was placed on S.R. Bhagwat and others v/s. State of Mysore reported in (1995) 6 SCC 16, to substantiate the aforesaid contentions.
5.5. Ms. Jani, learned advocate also relied on the decision rendered by this Court in Special Civil Application No. 22042 of 2022 decided on 27.02.2023.
5.6. It was submitted that there is no obligation upon the respondent authority to carve a way and facilitate a right of way to the respondent no.4.
5.7. It was submitted that though the draft Town Planning Page 10 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Scheme is sanctioned, the authority cannot demolish the construction and it could not vest with the authority. 5.8. Reliance was placed on the GDCR, which is duly produced at Pg.-435 and it was contended that there is a separate provision under GDCR with respect to the land, which is land locked. It was reiterated that the in view of the aforesaid, the prayers as prayed for by the petitioners herein be allowed. SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 2 AND 3 AHMEDABAD MUNICIPAL CORPORATION:
6.1. Mr. Nandish Y. Chudgar, learned advocate appearing for the respondent nos.2 and 3 relied on the affidavit-in-reply filed by the respondent nos. 2 and 3 and submitted that the respondents have taken action in accordance with law and in accordance with the provisions of the T.P. Act. Reliance was placed on the map depicting the draft Town Planning Scheme No. 45-B (Chandlodiya), as sanctioned by the State Government under Section 48(A) of the TP Act, duly produced at Annexure-R-
2. Page 11 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined 6.2. It was submitted that once the draft Town Planning Scheme has been sanctioned by the State Government under Section 48(2) of the TP Act, all the lands required by the Appropriate Authority (AMC) for the purpose of laying out of new streets or roads and construction thereof, vest absolutely in the Appropriate Authority (AMC in the present case), free from all encumbrances.
6.3. It was submitted that on and from 06.06.2017, the land in question which now in the sanctioned draft T.P. Scheme is shown as public street / road within Survey No. 80 (which is now allotted Final Plot Nos. 21/1 and 21/2) going upto Final Plot No. 70 and Original Survey No. 93/2 (Final Plot No. 34) vest with AMC in view of the sanction of the Draft TP Scheme No. 45-B (Chandlodiya) by the State Government and by virtue of Section 48-A(1) of the TP Act. It was submitted that Final Plot (FP)No. 70, which is just adjacent to Survey No. 80 (which is now allottted FP No. 21/1 and 21/2) of the petitioners has been reserved for public purpose. It was submitted that for accessing Final Plot No. 70 and reaching there, the only access available is Page 12 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined through the 7.5 meters TP road passing through Survey No. 80 (which is now allotted FP No. 21/1 and 21/2). It was submitted that the plot at Final Plot No. 70 which is reserved for public purpose, may be developed for any appropriate public purpose and may be developed into an Urban Health Centre or an Anganwadi or a Community Hall / Auditorium or even a Public Garden. It was submitted that there is no other appropriate accessible road for accessing the said F.P. No. 70 reserved for public purpose, as also for original survey No. 93/2 (FP No. 34). 6.4. It was submitted that so far as the reliance placed by the petitioners on the judgment of the Civil Suit (Ahmedabad Rural) at Ahmedabad being Regular Civil Suit No. 771 of 1996 passed on 29.06.2019, the same has no relevance to the real issue involved in the present petition. It was substantiated that what has been adjudicated by the Civil Court in the said Suit is the dispute between the parties therein / private parties. The respondent no.2 (AMC) was also not party to the said suit proceedings. It was submitted that, even otherwise the judgment in the said Suit, does not prohibit or restrict the respondent no.2 Page 13 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined in consultation with the Chief Town Planner under the provisions of the T.P. Act from preparing a Town Planning Scheme, which provides for T.P. Road of 7.5 meters to pass through Survey No. 80, so as to give access to F.P. No. 70, which is reserved for public purpose and Original Survey No. 93/2 (F.P. No. 34). 6.5. It was submitted that the respondent authority has to follow the provisions of the T.P. Act, after having called for the objections from the society which owns Survey No. 80, which has been considered and also forwarded to the State Government and after considering the fact that there is no other access to F.P. No.70, which is reserved for public purpose that the Appropriate Authority in consultation with the Chief Town Planner was constrained to make provisions for a 7.5 meters TP road passing through Survey No.80, so that the said FP No.70 is provided with appropriate road for access to it, considering the fact that the said FP No.70 is reserved for public purpose. 6.6. It was submitted that by filing the present Petition, petitioners failed to appreciate the hardship faced by the public at large, by not giving vacant possession of the land within Page 14 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Survey No.80, which in fact vest with the Appropriate Authority, i.e. respondent no.2 - AMC for the purpose of laying and constructing a public street / public road in accordance with the Draft TP Scheme No. 45-B (Chandlodiya) as sanctioned by the State Government under Section 48(1) of the TP Act. It was submitted that notice came to be issued by the respondent no.2 to the petitioners under Section 68 of the T.P. Act r/w. Rule-33 of the T.P. Rules, for personal hearing, if they had any objection to summary eviction. The petitioner and / or the Chairman Secretary of Raykanagar Society refused to accept the service of notice, and therefore, the said notice came to be affixed at the site, reliance was placed on the photographs evidencing the same, which are duly produced at Annexure-R-3. The petitioners were called upon for hearing by the Assistant Town Development Officer on 08.04.2021, where the petitioners as well as the owners of the original Survey No. 80 and the members of Raykanagar Society were heard; their written representations were also taken into consideration. Thereafter, on 29.04.2021, the Assistant Town Development Officer passed a reasoned and speaking order, which is impugned in the present petition, Page 15 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined rejecting the representation of the petitioners, while requiring the occupiers to give the vacant and peaceful possession on the said TP road passing through Survey No. 80, copy of the same is duly produced at Annexure-R-5.
6.7. Mr. Chudgar, learned advocate placed reliance on the ratio as laid down by the Hon'ble Division Bench in Letters Patent Appeal No. 401 of 2018, decision dated 09.04.2018. 6.8. Placing reliance on the aforesaid submissions, it was submitted that the petitioners rather than abiding by the provisions of the T.P. Act, approached this Court. It was lastly submitted that the petitioners are required to vacate the said portion of Survey No. 80 and handover the possession to the answering respondent, for the purpose of laying of public roads. Even by virtue of Section 48A of the T.P. Act, the said land for the purpose of public road vest with with Appropriate Authority
- respondent AMC. It was submitted that the ex-parte ad-interim relief granted earlier be vacated and the petition be dismissed in limine.
Page 16 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.4: 7.1. Mr. Shalin Mehta, learned senior counsel assisted by Mr. Mrugesh A. Barot, learned advocate appearing for the respondent no.4, placed reliance on the Affidavit-in-Reply filed by the respondent no.4, at Page-285 and an Additional Affidavit filed by the respondent No.4 at Page-465.
7.2. Mr. Mehta, learned senior counsel submitted that the intention of the Town Planning Scheme was made as back as on 29.09.2015 and the same was published in daily newspaper on 10.10.2015. As far as the present respondent no.4 is concerned, the registered sale deed came to be executed with respect to the original survey no. 93/2 (FP No. 34) on 21.09.2020 and therefore, the allegations levelled in the petition, with respect to the collusion and mala-fide intention is concerned, the same is baseless and far from truth.
7.3. It was submitted that on implementation of the aforesaid preliminary Town Planning Scheme, as a statutory deduction from the original revenue Survey No. 80, a 7.5 meters T.P. Road has been sanctioned, so as to give access to the Page 17 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined owners of Final Plot No. 34 as well as Final Plot No.70. 7.4. It was submitted that under the provision of the T.P. Act, more particularly, Section 48-A(1), the draft TP Scheme has been sanctioned by the State Government under Section 48(2) of the TP Act, all the lands required by the Appropriate Authority - AMC for the purpose of laying out of streets or roads and construction thereof, vest absolutely in the Appropriate Authority
- AMC, free from all encumbrances. It was submitted that on and from 06.06.2017, the land in question which is public road / street, within Survey No. 80 (which is now allotted FP No. 21/1 and 21/2) accessing upon Final Plot No. 70 and Original Survey No. 93/2 (FP No. 34) vest with the corporation in view of the sanction of the draft TP Scheme No. 45-B (Chandlodiya) by the State Government, by virtue of Section 48-A(1) of the TP Act. 7.5. Placing reliance on the order passed by the Civil Court, Ahmedabad in Regular Civil Suit No. 771 of 1996 dated 29.06.2019, it was submitted that the Civil Court in the said suit has adjudicated the dispute between the private parties. The Suit was filed for easmentary rights between the private parties, Page 18 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined which came to be dismissed. The said decree / judgment does not prohibit or restrict the respondent no.2 - AMC in consultation with the Chief Town Planner, under the provisions of the TP Act from preparing the Town Planning Scheme, which would provide for a TP road of 7.5 meters to pass through Survey No. 80 so as to give access to FP No. 34 and FP No. 70. 7.6. It was submitted that the aforesaid exercise was undertaken by the respondent no.2, after duly complying with the provisions of the T.P. Act and the objections of the proposed society - petitioner, and only thereafter the draft TP scheme in question has been sanctioned.
8.1. Ms. Megha Jani, learned advocate appearing for the petitioners, while rejoining to the submissions advanced by the learned advocates appearing for the respondent nos. 2 and 4 placed reliance on the affidavit in rejoinder filed by the petitioners, duly produced at Pg.304 and reiterated the contentions raised earlier. However, it was further submitted that if the lands belonging to the petitioners is a land-locked unit, than it is not open for the respondent no.2 to lay a TP Scheme Page 19 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined in administrative or executive capacity, the same being in violation of the judicial pronouncement. It was submitted that the cases of construction on a land locked plots are to be considered under the Gujarat Development Control Regulations (GDCR), 2017 under Para-7.3.3. The respondent no.2 is not obliged to carve-out the TP Scheme to provide approach to the respondent no.4. 9.1. In the facts of the present case, the plots are land- locked, as owners of the particular plots failed to guard its right of access that was available, have tried to establish its way through somebody's land, also failed in the Court of law in establishing its easementary right. It was submitted that the respondents are not justified in making a scheme that overrides adjudication by a Civil Court. The judgment does act as a prohibition and restriction on AMC in acting contrary thereto. 9.2. Placing reliance on the aforesaid, it was submitted that the prayers as prayed for in the present Petition be allowed. 10.1. Mr. Shalin Mehta, learned senior counsel appearing for the respondent no.4 relied on the Additional Affidavit filed on Page 20 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined behalf of the respondent no.4 and submitted that the present petitioners came into the possession of the aforesaid land in view of the unregistered possession agreement / supplementary agreement dated 16.01.1986 executed between the original owners and the plot holders. The aforesaid agreement mentioned that there exists a right of way from the land bearing Survey No. 80 towards the land bearing Survey No. 93. It was submitted that thereafter the registered sale deeds were not executed in favour of the plot holders, however, the possession was taken over by the plot holders of Survey No. 80. It was submitted that without obtaining non-agriculture permission from the competent authority, the residential houses have been constructed. The construction plans were also not sanctioned by the competent authority. It was submitted that the petitioners herein have constructed the residential houses in an agriculture land that too without obtaining any previous sanctions from the competent authority. The petitioners herein themselves have not followed the G.D.C.R. and in an illegal manner, the residential houses have been constructed, without leaving margin area. The petitioners are devoid of valid title in their favour as well as the Page 21 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined construction made over land bearing Survey No. 80. 10.2. Placing reliance on the aforesaid submissions, It was submitted that the present Petition be dismissed for want of title qua the petitioners.
10.3. To the aforesaid contentions raised by Mr. Mehta, learned senior counsel appearing for the respondent no.4, Ms. Jani, learned advocate appearing for the petitioners placed reliance on the applications preferred by the petitioners before the competent authority on 30.06.2015 seeking regulation of the unauthorized construction. It was submitted that the petitioners herein also payed property tax and the same is duly produced at Annexure-R-6.
11. On 23.06.2021, this Court while granting interim relief, passed the following order:
"1. Ms.Megha Jani, learned advocate appearing for the petitioners submitted that the Assistant Town Development Officer, has passed the order dated 29.4.2020, requiring the petitioners to hand over the possession of the land, which has been designated as T.P. Road. It is submitted that the action on the part of the Assistant Town Development Officer, is arbitrary inasmuch as, it seeks to open up an internal private road of the society. It is also submitted that a representation was made in the year 2016; however, without addressing the issue raised by Page 22 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined the society, the order dated 29.4.2020 has been passed, requiring the society to hand over the possession of the land within seven days. Clearly, the corporation is not the owner of the private road and there is nothing to show as to how the road came to be designated as T.P. Road.
2. It is next submitted that a Court of competent jurisdiction, has adjudicated the disputes between the owners of land bearing Survey No.80 and 93/2 and has declared that there is no right of way for accessing the land bearing Survey No.93/2 from the land bearing Survey No.80. When the Court of competent jurisdiction, has given its judgment, designating the road as a T.P. Road, is nothing but an act on the part of the respondent authorities to overreach the pronouncement.
3. Reliance is placed on the judgment in the case of Hari Krishna Mandir Trust v. State of Maharashtra & Others, reported in (2020) 9 SCC 356. It is submitted that the Hon'ble Apex Court, in paragraph 96 has held that the right to property may not be a fundamental right, but is still a constitutional right under Article 300-A and a human right. It has also been held that in view of the mandate of Article 300-A of the Constitution of India, no person is to be deprived of his property save by the authority of law.
4. Heard Ms. Megha Jani, learned advocate appearing for the petitioners.
5. Considered the submissions. Issue Notice, returnable on 6.7.2021. In the meantime, let there be a status quo, qua, Final Plot Nos.21/1 and 22/2, Original Plot No.21, Revenue Survey No.80, Village, Chandlodiya, District Sub-District Ahmedabad.
Direct service is permitted."
12.1. At this stage, it is apposite to refer to Section 48-A of the Town Planning Act, which reads thus:
"48-A. 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 sub-section (3) of Section 40 shall vest Page 23 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined absolutely in the appropriate authority free from all encumbrances. (2) Nothing in sub-section(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 sub-section (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under sub-section(2) of Section 48" were substituted.]"
12.1.1. Section 48-A of the T.P. Act provides that where a draft town planning scheme has been sanctioned by the State Government under Section 48(2), all the lands required by the appropriate authority for the purposes specified in clause- (c),
(f), (g) or (h) of Section 40(3) of the T.P. Act shall vest absolutely in the appropriate authority free from all encumbrances. Further, Section 48-A (2) provides that nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under the said sub-section. Section 48(3) provides that the provision of Sections 68 and 69 of the T.P. Act shall apply 'mutatis-mutandis' to the sanctioned draft Scheme.
12.2. Section 40 (c), (e), (f), (g) and (h) of the Gujarat Town Planning Act, 1976 reads thus:
Page 24 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined "Section 40 (c). lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications;
(d)xxx
(e) the allotment of (earmarked) of land for roads, open spaces, gardens, recreation grounds, schools, markets, green-belts, dairies, transport facilities, and public purposes of all kinds;
(f) drainage, inclusive of sewerage, surface or sub-soil drainage and sewage disposal;
(g) lighting;
(h) water supply' xxx."
12.3. Section 68 and 69 of the Gujarat Town Planning Act, 1976 reads thus:
"68. Power of appropriate authority to evict summarily:
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."
12.3.1. Section - 69 Power to enforce scheme:
"(1) On and after the date on which the preliminary scheme comes into force, the appropriate authority shall, after giving the prescribed notice and in accordance with the provisions of the scheme,
(a) 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;
(b) 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 Page 25 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined would prejudice the efficient operation of the scheme. (2) any expenses incurred by the appropriate authority under this section shall be recovered from the person in default or from the owner of the plot in the manner provided for the recovery of sums due to the appropriate authority under the provisions of this Act.
(3) If any question arises as to whether any building or work contravenes a town planning scheme or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, it shall be referred to the State Government and the decision of the State Government shall be final and binding on all persons.
(4) No person shall be entitled to compensation in respect of any damage, loss or injury resulting from any action taken by the appropriate authority under the provisions of this section except in respect of the building or work begun before the date referred to in sub-section (1) and only in so far as such building or work has proceeded until that date:
Provided that any claim to compensation, which is not barred by this sub--section shall be subject to the condition of any agreement entered into between the claimant and the appropriate authority.
(5) The provisions of this section shall not apply to any operational construction undertaken by the Central Government or a State Government."
POSITION OF LAW:
13.1. Ms. Megha Jani, learned advocate appearing for the petitioner relied on the decision in the case of S.R. Bhagwat and Others v/s. State of Mysore reported in (1995) 6 SCC 16, whereby, it was held that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power.
Page 26 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined 13.1.1. The aforesaid judgment, in the opinion of this Court is not applicable, in view of the fact that the judicial pronouncement as relied upon by Ms. Jani, learned advocate appearing for the petitioners is with respect to easmentary rights between the private parties. The scheme in question is considering the public interest, having assumed the force of preliminary scheme, the scheme having been sanctioned under Section 48(2) of the Town Planning Act specified under Sections 40(3)(c), (f), (g) and (h) of the T.P. Act for the purpose of laying down public road.
13.2. It is also apposite to refer to the ratio as laid down by the Hon'ble Division Bench in Letters Patent Appeal No. 401 of 2018, wherein, Paras-9, 10 and 14 reads thus:
"9. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the petitioners are occupying the shops in question for which the notice under Section 68 of the Act read with Rule 33 of the Rules came to be issued by the respondent Corporation for implementation of the town planning scheme. As per the draft scheme, 12 meters service road is required to be constructed on the land in question where the shops of the petitioners are situated. On receipt of the notices issued by the respondent Corporation, the petitioners appeared before the concerned authority of the respondent Corporation and made representation as well as submitted the written submissions. It is not in dispute that reasonable opportunity of hearing was Page 27 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined granted to the petitioners by the respondent Corporation before the impugned orders dated 21.2.2018 came to be passed by the respondent Corporation. While rejecting the representations of the petitioners, the respondent Corporation has placed reliance upon the various provisions contained in the Act including Sections 48-A, 40(3),(c) (f),(g) and (h). It is required to be noted that the state government has granted approval on 10.9.2012 to the draft scheme prepared by the respondent corporation.
10. At this stage, we would like to refer to the provisions contained in Section 48-A of the Act which reads as under:
"48-A. 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 sub-section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances. (2) Nothing in sub-section(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 sub-section (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under sub-section(2) of Section 48" were substituted.]"
14. In view of the above, the contention of the learned advocate for the petitioners that at the stage of draft scheme, notice for eviction cannot be issued to the petitioners is misconceived. It is further required to be noted that respondent Corporation has followed the principles of natural justice and reasonable opportunity of being heard is given to the petitioners. Thus, there is a substantial compliance of the provisions of the Act and the Rules."
13.3. It is apposite to refer to the decision rendered by this Court in Special Civil Application No. 22042 of 2022 decided on Page 28 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined 27.02.2023, wherein, the said petition came to be dismissed and held thus:
"(16) The petitioners are asserting their case on the provision of Clause (e) of sub-section (3) of Section 40 of the Act, by contending that under the provision of Section 48(A), the land, which falls under the said clause does not get vested in the State Government, hence the provision of Sections 68 and 69 of the Act will not get attracted, hence, they cannot be ordered to be summarily evicted. In my considered opinion, the petitioners have misdirected themselves in taking shelter under Clause(e) of sub-section (3) of Section 40 of the Act and, in fact they will be governed by Clause (c) instead of Clause(e). Clause (c) of sub-
section (3) to Section 40 of the Act specifically stipulates of making provision for laying-out of new streets or roads, construction,diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications, whereas Clause (e) to sub-section (3) of Section 40 pertains to the allotment or (earmarked) of land for roads, open spaces, grounds, recreation grounds, school etc. Thus, the language of Clause(c) and Clause(e) is different and operates in separate field. Clause(c) refers to the existing roads which are to be extended, altered or improved, whereas Clause (e) uses the expression "allotment of land for roads". Both the expressions used in the respective clauses are distinct. In the present case, the road is already in existence and the respondent authority intends to extend/alter it and hence, indubitably, the same will fall under Clause (c) to sub-section (3) to Section 40 of the Act. Thus, the reliance placed by the petitioners on Section 40(3)(e) of the Act is misconceived.
(17) Section 48A of the Act provides that where a private scheme has been sanctioned by the State Government under sub-section (2) of Section 48 of the Act all lands required by the appropriate authority for the purposes specified in clauses (c), (f), (g), or (h) of sub-section (3) of Section 40 of the Act shall vest absolutely in the appropriate authority free from all encumbrances. Sub-section (3) of Section 48A of the Act stipulates that the provisions of Sections 68 and 69 of the Act shall mutatis mutandis apply to the 'sanctioned draft scheme', as if sanctioned draft scheme were a 'preliminary scheme'. The provision of clause (i) to sub-section (3) to Section 48 of the Act attracts the provisions of Sections 68 Page 29 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined and 69 of the Act and the same will apply to the 'sanctioned draft scheme' as if it is a 'preliminary scheme.' The consequential effect would be that once the provisions of Sections 68 and 69 of the Act are triggered, the power of appropriate authority to evict summarily any of the occupiers, who continue to occupy any land, can be ordered by the authorities. Section 69 of the Act provides power to enforce scheme, which also prescribes the action of removing, pulling or alter any building or other work in the area under the scheme. Thus, if all the provisions of the sections mentioned hereinabove are harmoniously read, the same will explicate that the lay-out of new streets or roads, construction, diversion, extension, alteration, improvement etc., as provided in Section 40(3)(c) of the Act are to be read into the provision of Section 48A of the Act such road/street gets vested absolutely with the appropriate authority, which ultimately results in the invocation of provisions of Sections 68 and 69 of the Act by treating the sanctioned 'draft scheme' as a 'preliminary scheme'.
(18) Thus, the petitioners cannot resist the implementation of the construction or extension, alteration of the road, which is passing through Chhara Nagar as per the Town Planning Scheme No.96/B. (19) I may with profit refer to the observations made by the Division Bench in the order dated 09.04.2018 passed in Letters Patent Appeal No.401 of 2018, while examining the aforesaid provision, has held thus:-
"14. In view of the above, the contention of the learned advocate for the petitioners that at the stage of draft scheme, notice for eviction cannot be issued to the petitioners is misconceived. It is further required to be noted that respondent Corporation has followed the principles of natural justice and reasonable opportunity of being heard is given to the petitioners. Thus, there is a substantial compliance of the provisions of the Act and the Rules."
(20) In the order dated 18.07.2018 passed in Special Civil Application No.15298 of 2017, the Coordinate Bench of this Court, while examining the similar provisions, has held thus:-
"11. In view of the above, there remains no shadow of doubt that where the draft scheme has been sanctioned by the Page 30 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Government, the lands required for the purposes specified in the clauses (c), (f), (g) or (h) of Section 40(3) would automatically vest in the appropriate authority as per Section 48(A) and that the person, who is not entitled to occupy the land under the sanctioned draft scheme can be summarily evicted under section 48-A(3) of the said Act, on the analogy of the provisions contained in section 68 of the Act read with Rule 33 of the Rules. When the Statutory vesting takes place as contemplated in Section 48-A(1) of the said Act, the petitioners could not insist that they should be simultaneously handed over possession of the final plots proposed to be allotted to them under the Draft Scheme, before they are evicted from the subject lands. The purposes mentioned in Clauses (c), (f), (g) and (h) of Section 40(3) are the public utility services, and therefore the statutory vesting under Section 48A(1) of the lands earmarked for such purposes is automatic. It is axiomatic that salus populi suprema lex that regard be had to be public welfare, is the highest law. The respondent authorities have sought to exercise their powers under section 48-A(3) read with section 68 and Rule 33 after following due process of law and after giving reasonable opportunity of hearing to the all concerned including the petitioners. Hence, it could not be said that the respondent no.2- Corporation has acted arbitrarily or without any authority of law while issuing impugned notices and issuing passing the impugned orders."
(21) The Coordinate Bench of this Court in the case of Sukeshi Vijaybhai Bhatt vs. State of Gujarat, AIR 2021 CC 2741, after survey of various decisions of Apex Court and this Court, has held thus:
"30 It also emerges from the record that the State Government sanctioned the varied Draft TP scheme by notification dated 31.3.1975 published in the gazette on 10.4.1975. Thus the varied Draft TP Scheme was sanctioned prior to coming into force of the Act, 1976. In such circumstances, the contention raised on behalf of the petitioners that there is a deduction of more than 50% of the land is not tenable, as such land was reserved for public purpose for post and telegraph department and slum clearance housing at the relevant time. It is well settled legal position and it is a trite law with regard to the legality and effect of sanctioned Town Planning Scheme under the Bombay Town Planning Act as well as Gujarat Town Planning Act and this Court as well as Supreme Court has time and again held that once the Draft Scheme is sanctioned by the State Government it partakes the character of statute. Following decisions of this Page 31 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Court as well as Supreme Court are referred to for such settled legal position :
1) This Court in case of Kanjibhai Dahyabhai Malsattar v. State of Gujarat (supra) held that TP Scheme would become final under section 65 read with section 67 of the Act, 1976 and once the Scheme has become final, all the lands would vest in Area Development Authority free from all encumbrances and as such, the petitioners are required to vacate the land.
2) In case of Babulal Badriprasad Varma v. Surat Municipal Corporation (supra), the Apex Court held that, in facts of the said case, the appellant through his conduct has waived his right to equitable remedy as it would operate as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the Scheme in question has attained finality as a result of the appellant's inaction.
3) This Court in case of Jiviben Hansrajbhai Patel Wd/o Hansrajbhai Devjibhai Patel v. State of Gujarat through Secretary (supra) held that once Final Plot is reserved for public purpose, the contention of the petitioner in the said case for allotment of lesser area of Final Plot was rejected on the ground that the Scheme has attained finality and the matter to be considered only with respect to enforcement of the Scheme.
4) In case of Satyadev Parasnath Pandey v. State of Gujarat (supra), this Court held that provisions of section 48A of the Act, 1976 clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. It was held that doctrine of proportionality requires that the balance has to be stuck between the individual claim and the right of the society and accordingly when the land is reserved for public purpose, the petitioner cannot claim any compensation from the respondent authority.
5) In case of Ramanbhai Hargovinddas Limbachia v. State of Gujarat (supra), it was held by this Court that the petitioners have no locus to raise the objection to purchase the land after sanctioning of the Town Planning Scheme. Admittedly, in facts of the case, father of the petitioners purchased the land after the sanctioning of the Town Planning Scheme in the year 1975."
(22) It is no more res integra that once the draft T.P Scheme has become part of the Act, the same cannot be questioned, since it Page 32 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined partakes the character of statute. Thus, the petitioners cannot in any manner stall implementation of the draft scheme, which finds the operation of forming part of the T.P. road in view of the aforesaid provision of law since it is axiomatic that salus populi suprema lex i.e the public welfare is the highest law. The respondents are well within their right and power to order the evocation once it is found that the properties of the petitioners will trammel the implementation of the T.P.Scheme. The writ petition fails legal scrutiny and hence, the same is dismissed. However, as per the statement made in the affidavit-in-reply, more particularly in paragraph no.6, the respondent-Corporation shall provide an alternative accommodation as per the prevailing policy if the case of the concerned owners and occupiers including the petitioners falls within the criteria of such policy. Rule discharged. No orders as to costs."
ANALYSIS:
14. Considering the rival submissions advanced by the learned advocates appearing for the respective parties, provisions of law and position of law as referred above, following emerge:
14.1. The petitioners herein by way of the present petition seek to challenge the draft Town Planning Scheme No. 45-B (Chandlodiya) sanctioned by the respondent - State Government by virtue of Section 41(1) of the TP Act on 06.06.2017.
14.2. The intention of the TP Scheme was made on 29.09.2015 and the same was published in daily newspaper on Page 33 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined 10.10.2015.
14.3. The appropriate authority under the TP Act i.e. the respondent no.2 for the purpose of Town Planning Scheme has taken the following steps as required under the TP Act, which reads thus:
DATE PARTICULARS 14.07.2015 AMC- Appropriate Authority made consultation
with the Chief Town Planner, to make a scheme in respect of Chandlodiya Area, as per Section 41(1) of the TP Act.
29.09.2015 AMC- Appropriate Authority in line with the consultation with the Chief Town Planner declared its intention to make a Draft Town Planning Scheme in respect of Chandlodiya Area as per Section 41(1) of the TP Act.
09.10.2015 AMC published the declaration of intention to make the Draft Town Planning Scheme in respect of Chandlodiya Area, as per Section 41(2) of the TP Act.
10.10.2015 Publication was made in newspapers Western Times and Divya Bhaskar about the declaration of intention to prepare the Draft Town Planing Scheme in respect to Chandlodiya Area as per Page 34 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Section 41(2) of the TP Act.
19.05.2016 The owners' meeting was held as per Rule 17 of
the Gujarat Town Planning and Urban
Development Rules, 1979.
23.05.2016 The Chairman / Secretary of Raykanagar Society
filed objections with the Approprate Authority / AMC to the tentative proposition with regard to the TP scheme.
24.06.2016 The Draft Scheme was published in the official Gazette in respect of Chandlodiya Area, as per Section 42(1) of the TP Act.
25.06.2016 The Draft TP Scheme was advertised in newspaper Sandesh and Newsline. The Draft TP Scheme along with the regulations were also made available for public inspection at appropriate public places as per Rule 18 of the TP Rules, 1979. The objections were also invited from the affected persons as per the aforesaid Rule. (At Annexure - N - Pg No.186) 27.06.2016 One Mr. Maganbhai Pitambarbhai Dalvadi on behalf of Raykanagar Co. Housing Society Ltd filed objections to the proposed Draft TP Scheme, with the AMC- Appropriate Authority.
20.09.2016 After considering the objections received from people alleged to have been affected, the AMC submitted the Draft scheme with appropriate Page 35 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined modifications together with the objections which were communicated to AMC, to the State Government for its Sanction as per Section 48(1) of the TP Act. A copy of the relevant extract of the chart prepared by the Respondent AMC -
Appropriate Authority communicating its remarks to the objections of the petitioners and submitted to the State Government as per Section 48(1) of the TP Act.
06.06.2017 The Draft Scheme (Draft TP Scheme No.45 - B
(Chandlodiya) Area approved by the State
Government u/s 48(2) of the TP Act by resolution number GH/V/118 of 2017/TPS-112016-4256-L. 14.4. It is pertinent to note that the objections of the petitioners were considered before the draft Town Planning Scheme came to be sanctioned, which is undisputed. 14.5. The erstwhile owner of the respondent no.4 instituted the Suit being Regular Civil Suit No. 771 of 1996 before the City Civil Court, Ahmedabad (Rural) seeking easmentary rights, which came to be dismissed by judgment / order and decree dated 29.06.2019, copy of judgment and decree is duly produced at pg.125-169. The said Suit was dismissed, whereby, in the said Page 36 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined Suit, the prayers prayed for by the erstwhile owner of the respondent no.4 seeking easmentary rights came to be declined / rejected. The respondent no.4 purchased the property in question by registered sale deed, which came to be executed with respect to the original Survey No. 93/2 (FP No.34) on 21.09.2020. 14.6. The respondent no.2 issued Notice under Section 68 of the T.P. Act r/.w. Rule-33 of the Rules, on 02.02.2021 (Pg. 193-199), to implement the said scheme, to which the petitioners filed their objections reiterating the contentions that the scheme in question was an executive order or an administrative order, the same being against the judicial pronouncement in Regular Civil Suit No. 771 of 1996. The said Notice under Section 68 of the Act r/w. Rule-33 of the Rules, came to be issued by the respondent no.2 - AMC seeking implementation of the draft Town Planning Scheme, which has been sanctioned on 06.06.2017 and in view thereof, proceeded to pass an order dated 29.04.2021, operative part of the said order reads thus:
"ORDER"
"The Ahmedabad Municipal Corporation is in requirement of the land of Original Plot No.21 allotted and included in sanctioned draft Town Planning Scheme No.45/B (Chandlodia) for the purposes specified Page 37 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined in Clause (c), (f), (g) and (h) of Sub-Section-3 of Section-40 of the Act and for the same, issuing notice under Section-48(a) of the Act, it was instructed to hand over the land after removing the super-structure standing thereon to the Ahmedabad Municipal Corporation within 7 (seven) days. Written objection / representation-in-person submitted by you against the said notice is not tenable as the same does not fall within the jurisdiction of this office. Moreover, your another representation also not appears to be techno-legal and hence, it is not tenable. Therefore, as the T.P. Road attached to the Original Plot No.21 is required to be opened immediately in the public interest, I order that removing the super-structure standing on the land included in the T.P. Road within 7 (seven) days, the owner/occupier of Original Plot No.21 of Sanctioned Draft Town Planning Scheme No.45/B (Chandlodia) vide Resolution No.GH/V/118 of 2017 / TPS-112017-4256-L dated 06/06/2017 of the State Government shall hand over the same to the Ahmedabad Municipal Corporation. If the land owner/occupier fails to do so, the Ahmedabad Municipal Corporation shall take possession of the land under deduction as per aforesaid scheme and the entire cost thereof shall be borne by the land owner / occupier. This shall not affect the right of the ownership in the land of original plot." To create hurdle or interruption against such action is shall attract the complaint under Section-188 of the IPC.
Sd/-(Illegible) Assistant Town Development Officer (North-West Zone)"
14.7. The draft Town Planning Scheme having sanctioned under Section 48(2) of the TP Act on 06.06.2017, the present petition is filed on 31.05.2021, after issuance of eviction notice under Section 68 of the T.P. Act r/w. Rule-33 of the Rules, by the respondent no.2 on 02.02.2021. In view of the draft T.P. scheme sanctioned, under Sections 40(c), (f), (g) and (h) of the T.P. Act as referred above, are attracted.Page 38 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined 14.8. In view of the aforesaid, provisions of Sections 68 and 69 of the TP Act apply 'mutatis-mutandis' to the sanctioned draft T.P. scheme, as if the sanctioned scheme were a preliminary scheme. Consequently, once the provisions of Sections 68 and 69 of the T.P. Act come into force, the powers of competent authority to evict summarily any of the occupiers, in occupation of the land in question, can be ordered by the competent authority. Section 69 of the T.P. Act provides the powers to enforce the scheme, which includes the action of removing, pulling down or altering any building or other work in the area under the Scheme.
14.9. The submissions were advanced by Ms. Jani, learned advocate that aforesaid would fall under Clause-(e) of Section 40 of the T.P. Act. Section 40 (e) in the opinion of this Court, is the subjective interpretation of the petitioners. The land in question is reserved for the public purpose and for laying down the new street. The aforesaid contention was also considered by the competent authority, while passing the order dated 29.04.2021, whereby, the reasons are assigned, which reads thus:Page 39 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined ".....With respect to the aforesaid fact, it is to be stated that, after inclusion of Revenue Survey No.80 of moje Chandlodiya, included in T.P. Scheme No.45/B (Chandlodiya) as per the revenue record, in the sanctioned draft town planning scheme No.45/B (Chandlodiya), notices under Section-68 of the Act and Rule-33 thereunder have been served on 03/02/2021 to the affected owners and occupants to hand over the actual and vacant possession of the land of the Original Plot No.21 assigned to it merging with the road, subject to the provisions of Section 48/A of the Gujarat Town Planning and Urban Development Act.
With respect to your above submission regarding the notice issued to you, it is to be stated that, the T.P. Scheme No.45/B (Chandlodiya) has been given draft sanction vide the aforesaid notification by the Government. The notices issued under the said town planning scheme are lawful and fall within the jurisdiction of this department. Therefore, the submission made by the affected persons/occupants is not acceptable. Further, after the sanction of the draft as per the Gujarat Town Planning and Urban Development Act, 1976, the provisions under the Act are as given below.
As per Section - 40 (3)(a) of "the Gujarat Town Planning Act - 1976", "the laying out of land, either vacant or already built upon." Further, as per Section - 40 (3)(c), "lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications."
Thus, as the draft of the scheme has been sanctioned by the State Government under sub-section (2) of Section 48 of the "Gujarat Town Planning and Urban Development Act, 1976", all the lands required by the appropriate authority shall be completely vested to the appropriate authority free from all encumbrances for the purposes specified in clauses (c), (f), (g) and (h) of Sub-section (3) of Section-40.
The matter as to for which subjects provisions may be made has been covered in the provisions of sub-section (3) of Section - 40.
Provisions of clauses (c), (f), (g) and (h) of Sub-section (3) of Section-40 are as given below.
Page 40 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined
(c) lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications.
(f) Making arrangement for drainage, inclusive of sewerage, surface or sub-soil drainage and sewage disposal.
(g) Making arrangement for lighting.
(h) Water supply.
After due consideration on all the aspects, the State Government has sanctioned the Town Planning Scheme No.45/B (Chandlodiya) as the draft town planning scheme vide Resolution No.GH/V/118 of 2017/TPS-112016-4256-L, Dtd.06/06/2017. In this regard, it is necessary in public interest to implement the said town planning scheme sanctioned under the provisions of " The Gujarat Town Planning and Urban Development Act - 1976" and as a part of it, the aforesaid notice has been issued to vacate the T.P. road. The said issued notices are fair, lawful and as per the provisions of the Act.
The land of Original Plot No.21 allotted and included in sanctioned draft Town Planning Scheme No.45/B (Chandlodia) is required for the purposes specified in Clause (c), (f), (g) and (h) of Sub-Section-3 of Section-40 of the Act. The owner/occupier shall have to hand over the land deducted in T.P. Road after removing the super-structure standing thereon to the Ahmedabad Municipal Corporation within 7 (seven) days.
In sub-section (2) of section 48, it is provided that no right of the owner shall be affected by vesting of all lands required by the appropriate authority for the purposes specified in clauses (c), (f), (g) or (h) of Sub-section (3) of Section-40 in the appropriate authority free from all encumbrances." 14.10. Considering the aforesaid, the competent authority being expert body has sanctioned the scheme under Section 40(3) (c), (f), (g) and (h) of the Town Planning Act, after Page 41 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined due consideration, wherein, Section 40(3)(c) provides to 'lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications'.
14.11. The aforesaid is fortified in the ratio as laid down in the case of Uttar Pradesh Public Service Commission, through its Chairman and Another v/s. Rahul Singh and Another reported in (2018) 7 SCC 254, relevant Paras-14 and 15 read thus:
"14. In the present case we find that all the 3 questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.
15. In view of the above discussion we are clearly of the view that the High Court over stepped its jurisdiction by giving the directions which amounted to setting aside the decision of experts in the field. As far as the objection of the appellant - Rahul Singh is concerned, after going through the question on which he raised an objection, we ourselves are of the prima facie view that the answer given by the Commission is correct."
14.12. The draft Town Planning Scheme came to be sanctioned as back as on 06.06.2017 before the respondent no.4 Page 42 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined purchased the property by registered sale deed. Ms. Jani, learned advocate placed reliance on the GDCR, 2017, duly produced at Pg.435, which came into effect after sanctioning of the draft T.P. Scheme No. 45-B (Chandlodiya) as back as on 06.06.2017. If the aforesaid objections were taken by the petitioners before the competent authority, the same would have been considered by the competent authority. The ownership rights of the petitioners would not in anyway be affected by issuance of the impugned notices, considering the fact that reliance is placed by Ms. Jani, learned advocate appearing for the petitioners on paying the property tax, having electricity connection, and paid the impact fees for regulation of their constructions. 14.13. In the opinion of this Court, if the petitioners herein are aggrieved by any action and /or inaction on the part of the private respondents, it is always open for the petitioners to take appropriate steps against the private respondents in accordance with law. However, in the opinion of this Court, the draft T.P. Scheme in question is laid down by the competent authority, after following due provisions of law, considering the Page 43 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined objections of the petitioners and in public interest. The respondent no.2 was not a party to the said litigation, i.e. Regular Civil Suit No. 771 of 1996, which is with respect to the easmentary rights between the private parties and the same being not binding to the respondent no.2 herein or the State authorities. It is stated that for approach to FP No. 70 which is reserved for public purpose, there is no other approach road. The respondent no.2 has explained in the affidavit in reply that FP No. 70 which is adjacent to Survey No. 80 (now allotted FP no. 21/1 and 21/2) of the petitioners have been reserved for public purpose. For access to FP No. 70, the only access available is through 7.5 mtrs T.P. Road passing through Survey No.80 (now FP no. 21/1 and 21/2). The FP No. 70 which is reserved for public purpose may be developed for any appropriate public purpose, as referred to in the said affidavit filed by the respondent no.2. There is no other accessible road to access FP No. 70, reserved for public purpose as also original Survey No. 93/2 (FP No.34), which belongs to the respondent no.4.
15. For the foregoing reasons, no interference is called Page 44 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024 NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined for, to invoke the extraordinary jurisdiction under Article-226 of the Constitution of India and accordingly, the present Petition stands dismissed. Rule is discharged.
16. Interim relief granted vide order dated 23.06.2021 stands vacated.
17. Since the main petition is dismissed, Civil Applications, pending, if any, also stands disposed of, accordingly.
(VAIBHAVI D. NANAVATI,J) FURTHER ORDER:
After pronouncement of judgment, Ms. Megha Jani, learned advocate appearing for the petitioners pray to stay the present order for a period of six weeks. Mr. Nandish Y. Chudgar, learned advocate appearing for the respondent nos.2 and 3 and Mr. Shalin Mehta, learned senior counsel assisted by Mr. Mrugesh A. Barot, learned advocate appearing for the respondent no.4 raised objection to the aforesaid request.Page 45 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024
NEUTRAL CITATION C/SCA/7859/2021 CAV JUDGMENT DATED: 01/02/2024 undefined In the interest of justice, the interim order granted vide order dated 23.06.2021 be continued for a further period of four weeks from today.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 46 of 46 Downloaded on : Fri Feb 02 21:25:58 IST 2024