Gujarat High Court
Dahyabhai Gulabbhai Chaudhary vs Surat Urban Development ... on 11 April, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/6772/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6772 of 2015
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DAHYABHAI GULABBHAI CHAUDHARY....Petitioner(s)
Versus
SURAT URBAN DEVELOPMENT AUTHORITY(SUDA) & 10....Respondent(s)
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Appearance:
DECESED LITIGANT, ADVOCATE for the Petitioner(s) No. 1
MR RAJESH K SHAH, ADVOCATE for the Petitioner(s) No. 1.1 1.2.2 , 1.3 1.4.1 , 1.5.1
MS TEJAS MOTWANI, APP for the Respondent(s) No. 3
MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 2
MR TARAK DAMANI, ADVOCATE for the Respondent(s) No. 4 11
MR UI VYAS, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 11/04/2016
ORAL ORDER
1. Affidavitinrejoinder filed by the petitioners is taken on record.
2. By way of the present petition filed under Articles 14, 19, 21, 31 and 226 of the Constitution of India, the petitioners have prayed as under:
"[A] Quashing and setting aside the reconstitution of original plot No. 2 into Final Plot No. 2 of the petitioner in Town Planning Scheme No. 36 Variav; and direct the respondents their agents and servants to again % reconstitute afresh the larger Final Plot No. 2 making it regular rectangle and with not more deduction than 35% from the petitioner's land Survey No. 1303.
[B] Pending admission, hearing and final disposal of the petition, direction the respondents, their agents and servants to maintain status quo as to the all lands which have been allotted land from OP No. 2 and other lands that may be required to be affected by the new reconstitution of FP No.2.
Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Apr 17 00:29:29 IST 2016 C/SCA/6772/2015 ORDER [C] Awarding costs from the respondents."
3. Pursuant to notice issued by this Court, Surat Municipal Corporation has filed its reply dated 19.06.2015 through one Dinesh M. Jariwala, Executive Engineer and opposed this petition.
4. Brief facts arise from the record are as under :
4.1. That the Chief Town Planner, under the provisions of Section 41(1) of the Gujarat Town Planning and Urban Development Act, 1976 (herein after referred to as 'the Act'), declared his intention to prepare a draft town planning scheme No. 36 (Veriyav) on 27.01.2004. The same was published in the Extra Ordinary Gazette Part II, Government of India on 09.02.2004 and was also published in two Gujarati daily newspapers on 11.02.2004. As per the provisions of the Act, a public meeting was called for, on 05.12.2004, by which the suggestions and objections were invited from the public affected by the proposed draft scheme including the land belongs to the petitioners. After considering the suggestions and objections received from the public at large, the authority i.e. Surat Urban Development Authority had prepared and submitted a Draft Town Planning Scheme No. 36 to the State of Gujarat on 15.04.2005 under the provisions of Section 48(2) of the Act. The same was forwarded to the State Government on 27.04.2005. The State Government accorded sanction to the said Scheme No. 36 under the provisions of Section of 48(2) of the Act and a notification was issued on 17.04.2006 by the concerned department of the State Government. The Town Planning Officer was appointed on 11.09.2006 under the provisions of Section 50(1) of the Act to finalize the said town planning scheme. The Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Apr 17 00:29:29 IST 2016 C/SCA/6772/2015 ORDER Town Planning Officer published a notice under the Rule 26(1) and 26(3) of the Gujarat Town Planning and Urban Development Rules, 1979 in Gujarat Government Gazette Part II and two Gujarati daily newspapers. The said notice was also published at the prominent places in and around the scheme area and also posted a copy of notice to the notice board of the concerned office.
By the said notice, the Town Planning Officer had invited owners and interested persons to submit their suggestions / objections about the proposal of the draft scheme before the Town Planning Officer. After receiving the suggestions / objections from the interested persons, declared his decision under Section 52(1) of the Act and declared that the Preliminary Town Planning Scheme No. 36 (area of Veriyav), Surat Urban Development Authority and published in daily newspaper and the same was also published in Government Gazette Part II. The Town Planning Officer also submitted the said scheme to the State Government on 18.07.2009 for according it due sanction under Section 52(2) as well as under Section 64 of the Act.
4.2. The State Government accorded its sanctioned to the said preliminary scheme No. 36 under the provisions of Sections 52(2) and 64 of the Act vide notification dated 10.09.2012 issued by the Urban Development and Urban Housing Department, State of Gujarat.
4.3. Block No. 1243 belongs to the petitioners was part of the said Town Planning Scheme and was given final plot number by the authority.
4.4. When the petitioners received a communication dated 09.03.2015 from the Surat Municipal Corporation (since the disputed land is Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Apr 17 00:29:29 IST 2016 C/SCA/6772/2015 ORDER now under the area of Surat Municipal Corporation), by which the petitioners were directed to hand over the possession of the plot as per consent given by them in past.
4.5. Hence, the present petition.
5. Mr.R.K.Shah, learned advocate appearing for the petitioners, would submit that, though a detail representation was made by the petitioners on 16.03.2015 to the concerned authority including the Surat Urban Development Authority, they have not given any opportunity of hearing and therefore, the communication is required to be quashed and set aside. He would further submit that there is no reply from the Surat Municipal Corporation about the objections raised and submitted by the petitioners on 27.07.2013, which are referred in the said communication. He would further submit that the authority had favoured the private respondents by giving front portion and therefore, the authority be directed that the petitioner had given an opportunity of hearing.
6. On the other hand, Mr. Dhaval Nanavati learned advocate appearing for the Surat Municipal Corporation, would submit that the petitioners have never raised any objections either at the time of declaring the intention of the Town Planning Officer preparing the draft scheme or at the time of sanctioning the preliminary scheme way back in September, 2012. He would further submit that the preliminary scheme has been sanctioned and therefore, the scheme has become a part of the act and the Corporation is duty bound to implement the scheme as per the ratio laid down in case in cases of Municipal Corporation of Greater Bombay V/s. The Advance Builders (India) Pvt. Ltd. reported in AIR 1972 SC Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Apr 17 00:29:29 IST 2016 C/SCA/6772/2015 ORDER 793, Kashiben Wd/o Pithamber Devchand and Ors. V/s. State of Gujarat reported in 1989(2) GLR 1176, Shilpa Park Coop. Housing Society Ltd. V/s. Surat Urban Development Authority and Ors. reported in 1996(2) GLH 287 and Jethabhai Mepabhai Makwana Vs/ State of Gujarat reported in 2004(3) GLH 675 as well as Kanjibhai Dahyabhai Malsattar Vs. State of Gujarat reported in 2005(2) GLH 515. He would further submit that the scheme has not been challenged by the petitioners and therefore the same is not required to be quashed. He would further submit that the petitioners had given consent to hand over the possession on a stamp paper. However, the petitioners have not abided by the undertaking given and therefore, the present petition be dismissed.
7. I have heard learned advocates for the respective parties. Perused the papers available on record. It is an undisputed fact that the authority has followed the due procedure prescribed under the Town Planning Act and the petitioners had never filed any objections to either proposed scheme and draft scheme. The petitioners have not produced a copy of any objections ever raised by them. They have made representation in the month of March, 2015 wherein petitioners have referred some objections submitted by them on 27.07.2013, however, no copy thereof is produced on record. Even the preliminary scheme has been sanctioned in the year 2012, which was published in the Government Gazette vide notification dated 10.09.2012. I have also considered the affidavit inreply filed by the Surat Municipal Corporation, which establishes that the authority has followed the due procedure prescribed under the Act.
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8. When the scheme has finalized, the only remedy available to the petitioners is to challenge the scheme as per the principle laid down by the aforesaid judgement. Therefore, I am of the opinion that the prayers made in the present petition are meritless and accordingly do not required to be considered. Hence, the present petition stands disposed of as dismissed. Notice is discharged.
(A.J.DESAI, J.) *Kazi...
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