Gujarat High Court
Parsottambhai Bhavanbhai Jasani ... vs State Of Gujarat - Through on 19 August, 2013
Author: Anant S.Dave
Bench: Anant S. Dave
PARSOTTAMBHAI BHAVANBHAI JASANI THRO'POA VALLABHBHAI GOLKIYA....Petitioner(s)V/SSTATE OF GUJARAT - THROUGH SECRETARY C/SCA/6066/2011 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 6066 of 2011 ================================================================ PARSOTTAMBHAI BHAVANBHAI JASANI THRO'POA VALLABHBHAI GOLKIYA....Petitioner(s) Versus STATE OF GUJARAT - THROUGH SECRETARY & 3....Respondent(s) ================================================================ Appearance: Mr. R.S. Sanjanwala, Senior Advocate with MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1 Ms. Krina Calla, AGP for the Respondent(s) No. 1 - 2 Mr. Prashant Desai, Senior Advocate, with MR KAUSHAL D PANDYA, ADVOCATE for the Respondent(s) No. 4 NOTICE SERVED BY DS for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 19/08/2013 ORAL ORDER
1 This petition under Article 226 of the Constitution of India is filed by the petitioner challenging notification issued by respondent No.1 sanctioning preliminary town planning scheme on the ground that it is in contravention of the provisions contained in Section 65 of the Gujarat Town Planning and Urban Development Act, 1979 [for short, 'the Act'].
2 Admittedly, the petitioner claims to be purchaser of subject land, namely, Survey No.159/1/2, admeasuring around 2023 sq.meters situated at Surat, Moje: Katargam, vide sale deed dated 28.2.2005 from the erst-while owner upon payment of a meager consideration of Rs.1.20 lakhs. It is the case of the petitioner that a development plan was sanctioned and published by the respondent-authority and, in case of the subject petition, intention to frame town planning scheme No.19 (Katargam) was declared by Surat Municipal Corporation under section 41(1) of the Act by issuing notification on or around 27.2.1997 wich was sanctioned under Section 48(2) of the Act by notification dated 5.5.1999.
3Section 50 provides for appointment of Town Planning Officer and the duties are cast upon Town Planning Officer as prescribed under Section 51. Section 51 provides for contents of preliminary and final scheme. Sub-section (1) of Section 51 contains following clauses:
(1) in a preliminary scheme, the Town Planning Officer shall,-
(i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots;
after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, th eshare of such person;
provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with provisions of Section 81;
determine the period within which the works provided in the scheme shall be completed by the appropriate authority.
Sub-section (2) of Section 52 provides that the Town Planning Officer shall submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final scheme in accordance with the provisions of sub-section (3). Section 65 of the Act operates in the area that, on receipt of the preliminary scheme, or, as the case may be, the final scheme, the State Government may (a) in the case of a preliminary scheme,within a period of two months from the date of its receipt and (b) in the case of final scheme, within a period of three months, from the date of its receipt, by notification, sanction the preliminary scheme or the final scheme or refuse to give sanction provided that in sanctioning any such scheme, the State Government may make such moficiations as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or infirmity. Thus, when the draft town planning scheme submitted by respondent No.3-authority to the State Government on 24.9.1998 and finally on 6.5.1999, the State Government had granted approval of draft town planning scheme. The Town Planning Scheme was finalized after getting approval of the State Government on 1.7.2010.
4 In the aforementioned back-drop of the provisions of the Act, learned counsel for the petitioner would contend that, as regards the change/variation made by the Town Planning Officer in respect of Survey No.159/1/2 and its original plot No.32B and the decision taken in this regard by the Town Planning Officer and variation, changes, modification, etc, by the State Government, no opportunity was given to the petitioner and, when there was no error, irregularity or infirmity in the modification suggested by the Town Planning Officer, the State Government ought not to have taken a decision of restoring status-quo ante, meaning thereby, the land was reserved for garden, namely, public purpose. Learned counsel for the petitioner would contend that as regards making change in the decision of respondent No.3, Town Planning Officer, it was made behind the back of the petitioner and, therefore, it is violative of principles of natural justice and since the petitioner had purchased land from the erst-while owner, final plot ought to have been alloted. Reliance is placed on the decision of this Court dated 10.2.2010 rendered in Special Civil Application No.26785 of 2007, annexed with the petition.
5 Mr. Prashant Desai, learned counsel for respondent-Surat Municipal Corporation, has, basically, relied upon affidavit-in-reply filed by the Competent Authority, where, the following facts stated in paragraphs 11 to 15 on oath remain undisputed.
11. I submit that, as per the averments made in the petition the land in question has been purchased by the petitioner on 28.2.2005 from power of attorney holder of the original owners. It is pertinent to point out that the petitioner has purchased the land which has been kept under reservation not only that but, the possession has been handed over by the POA of Owners to respondent Corporation.
I submit that on 2.6.2001 the Town Planning Officer had sent the Tentative proposed scheme to respondent corporation wherein the reservation has been continued for public purpose i.e. Garden (R-11) by making some alteration in measurement upon the final plot No.134.
I submit that on 7.7.2005 the Town Planning Officer has declared its award / decision of preliminary town planning scheme No.19 (Katar Gam) as required under the provisions of the Act, 1976 whereby respondent corporation came to know that the Town Planning Officer has allotted the land of O.P. No.32/B F.P. No.46 to the owners by removing the reservation for public purpose i.e Garden.
I submit that on 16.12.2005 the Town Planning Officer had submitted the preliminary town planning scheme No.19 (Katar Gam) before respondent No.1 for its sanction as required u/s. 65 of the Act, 1976.
I submit that against the change made by the Town Planning Officer the respondent corporation has raised the objections before respondent No.1 as the scheme has been sent to respondent No.1 by letter dated 9.1.2006, 13.1.2006 and 18.9.2007 with a request to maintain the reservation as per the draft town planning scheme in preliminary town planning scheme.
It is, therefore, submitted that the preliminary scheme was sanctioned under Section 65 as per the modified notification dated 1.7.2010 and allotment of final plot No.46 in lieu of original plot No.32B was cancalled and original plot No.32B is modified and merged with original plot No.32A and is allotted final plot No.45-1, since final plot No.46 has been allotted to Surat Municipal Corporation for public purpose. It is, therefore, submitted that, when the preliminary scheme is sanctioned, it has become part of the Act and so was the case when draft scheme was sanctioned under Section 48A of the Act and, on proper exercise of power, the State Government has not accepted modification suggested by the Town Planning Officer in exercise of power under Section 52(2) of the Act and restored the subject land for public purpose, namely, garden, so earmarked in the intention of town planning scheme declared as early as on 27.2.1997. The petitioner, who has purchased land only in 2005, is, therefore, not entitled to the prayer made in this petition.
6 Upon hearing of learned counsels for the parties and on perusal of the record, it is clear that land bearing Survey No.159/1/2 and original plot No.32B was for all purposes reserved for 'public purpose' as garden even in the draft town planning scheme, which came to be sanctioned on 6.5.1999 and the land has vested into the State Government by virtue of operation of the above Section which took into consideration provisions of Section 67 of the Act. For ready reference, Section 48A is reproduced hereinbelow:
48-A:
Vesting of land in appropriate authority.
Where a draft scheme has been sanctioned by the State Government under sub-section (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.
Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.
The provisions of Section 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.
No doubt, Section 52(1) and (2) empowers the Town Planning Officer for issuing notice to the persons affected by the scheme defined, earmarked, allotted, reserved for any public purpose or for a purpose under Section 81 of the Act. Such preliminary scheme prepared by the Town Planning Officer was sent to the State Government for sanction and the final scheme as provided in sub-section (3) of Section 52. It is to be noted that variation if any to be made in the draft scheme if it is of a substantial nature, the proviso would come into play and if variation is not of a substantial nature than of a draft scheme, proviso below clause (xi) permits the Town Planning Officer to make variation from the draft scheme, but, such variation is to be of a substantial nature, and it is to be made only after previous sanction of the State Government and after hearing the appropriate authority. In the facts of the case, variation made by the Town Planning Officer qua original plot No.32B of releasing the land reserved for public purpose namely garden and that would be given to the occupier, was noticed by the State Government and when it was found that the land reserved for public purpose was to be given final plot to the original occupiers, another final plot is given restoring possession as prevalent at the stage of sanction of draft scheme in exercise of power under section 48A. Even, as recorded earlier, preliminary scheme has also been finalized in 2010. Section 67 provides in detail about the effect of preliminary scheme whereby, all the rights in the original plots get extinguished of the original owner and it vests absolutely in the appropriate authority free from all encumbrance. In the above circumstances, the petitioner has purchased land in 2005 upon illusory consideration of Rs.1.20 lakhs for 2023 sq.meters in the city of Surat, when the land was reserved for the public purpose, namely, garden, in sanctioned draft plan under Section 48A and the variation suggested by the Town Planning Officer amounting to de-reserving the land meant for public purpose was not permissible and within his jurisdiction, since the change was of substantial in nature and, therefore, correction of such error committed by Town Planning Officer by the State Government does not envisage any observance of principles of natural justice and, to that extent, the contention of the learned counsel for the petitioner that no opportunity of hearing is afforded to the petitioner has no substance and is rejected. Further, the petitioner is not the original owner and in addition to the above, the authorities earmarked alternative final plot to be given to the owner for which the petitioner cannot make any grievances. This petition is nothing, but an abuse of process of law undertaken by the petitioner purchasing a land originally reserved for public purpose, consuming substantial time of the Court and the authorities. In the facts and circumstances of the present case, the decision relied upon by the learned counsel for the petitioner dated 10.2.2010 rendered in Special Civil Application No.26785 of 2007, is not applicable, since, in the present case, the State Government has rightly exercised power in accordance with law for the reasons stated hereinabove.
7 As a result of foregoing reasons, this petition is rejected with costs of Rs.1 lakhs to be paid by the petitioner within four weeks from today in favour of the Gujarat State Legal Services Authority , failing which, the Collector shall recover the same as recovery of dues of revenue under the Bombay Land Revenue Code.
(ANANT S.DAVE, J.) SWAMY Page 8 of 8