Gujarat High Court
Iqbal Ibrahim Qureshi vs State Of Gujarat on 20 March, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/3359/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3359 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 3687 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4068 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4192 of 2018
=========================================================
IQBAL IBRAHIM QURESHI Versus STATE OF GUJARAT ========================================================= Appearance:
MR. EKRAMA H QURESHI(7000) for the PETITIONER(s) No. 1,2,3,4 MS MANISHA SHAH GP with MR. UTKARSH SHARMA AGP for the RESPONDENT(s) No. 1 MR DEEP D VYAS(3869) for the RESPONDENT(s) No. 2 ========================================================= CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI Date : 20/03/2018 ORAL COMMON ORDER
1. The present group of petitions are filed under Article 226 read with Article 300A of the Constitution of India for challenging the legality and validity of the impugned notices dated 10.01.2018 as well as orders dated 20.02.2018 essentially praying not to implement the action with respect to Town Planning Scheme No. 86 (SarkhejOkafFatewadiMakarba) without following due process of law.
Page 1 of 28 C/SCA/3359/2018 ORDER
2. Since common questions of law and fact are arising with respect to these three petitions the same are being disposed of by way of present common judgment and order by treating Special Civil Application No. 3359 of 2018 as a lead matter.
3. So far as Special Civil Application No. 3359 of 2018 is concerned it is the case of the petitioner that petitioner no. 1 is the owner and occupier of Shop No. E/3 which is given sketch no. 2 which shop is purchased from one Rafikbhai Nazirbhai Chezara and Mohammed Hussain Hssanali Jaffri and after payment of consideration sale deed was executed on 15.09.2008 and has also made payment of impact fee in the year 2005. The petitioner is carrying on the business of repairing of diesel pump in the name and style of 'Indian Diesel Pump' and is paying monthly tax since the year 2008. It is further the case of the petitioners that petitioner no. 2 in similar way is occupying shop no. A/1 which is given sketch no. 26 and has also purchased the said shop from one Mohammed Hussain Hassanbhai Jaffri vide sale agreement dated 20.08.2002 and subsequently, paid impact fee in the year 2004 and earning his livelihood. Later on in this very shop one Mr. Prashant Patel is carrying business in the name of 'Harmonic Décor'. So far as the petitioner no. 3 is Page 2 of 28 C/SCA/3359/2018 ORDER concerned, he is occupying shop no. D/1 which is given sketch no. 11 which came to be purchased from one Gulshanbanu Najmalhussain Qureshi in the year 2012 by notarized sale agreement dated 16.05.2012, in which erstwhile owner had already paid impact fee in the year 2004. The petitioner is also earning livelihood by running a garage in the name of 'S.V. Motor'. So far as petitioner no. 4 is concerned, he is the occupier of premises bearing shop no. E/2 which is given sketch no. 3 comprising ground and first floor and the purchase is made in the year 2005. Again by notarized the sale agreement date 18.04.2007 along with his wife was executed and in the year 2005 impact fee was also paid and he is also paying monthly tax.
4. So far as Special Civil Application No. 4068 of 2018 is concerned, it is the case of the petitioner that the petitioner has purchased the land bearing survey no. 438 paiki having Final Plot No. 115 in Draft Town Planning Scheme No. 86 (Sarkhej OkafShavadiMakarba) by way of registered sale document on 26.04.2012 and later on put construction of rooms doing business of transport in the name of New Gujarat Road Line.
5. So far as Special Civil Application No. 3687 of 2018 is Page 3 of 28 C/SCA/3359/2018 ORDER concerned, even this petitioners are owners and occupiers of the property bearing Sketch No. 19 and petitioner no. 1 has purchased this property by virtue of sale agreement through joint power of attorney and carrying on business of garage since the year 2002. Similarly petitioner no. 2 in this petition is occupying the property/Shop no. 14 shown in sketch again by virtue of sale agreement and joint power of attorney carrying on business of scrap in the year 2003, Similarly is the case with respect to petitioner no. 3 who is occupying Shop No. 3 sketch again by way of sale agreement through joint power of attorney and carrying on business of automobile since the year 2003 and petitioners nos. 4 and 5 are also the owners of the property shown in Sketch Nos. 21 and 15 respectively purchased by sale agreement as well as joint power of attorney. So far as petitioner no. 6 is concerned he is occupier of the Shop shown in Sketch no. 13 in the plan by way of sale agreement and joint power of attorney has purchased the premises and since 2004 is carrying on the business printing and is also paying municipal tax.
6. So far as Special Civil Application No. 4192 of 2018 is concerned, the petitioner is the owner and occupier of the Shop No. E/1 which is given sketch no. 4, which shop is purchased Page 4 of 28 C/SCA/3359/2018 ORDER from one Rafikbhai Nazirbhai Chejara and Mohammed Hussain Hassanali Jafri and payment of consideration, sale deed was executed and has also paid the impact fees in the year 2005. The husband of the petitioner is carrying on the business of scrap engine and gears in the name of 'Amdavad Disposal'.
7. All these petitioners whose premises in question are covered under the draft scheme dated 10.09.2012 and with respect to this pursuant to draft development scheme revenue survey no. 378/2 and 3 of Sarkhej is given original Plot No. 39/2 and it is stated that the owners of the land holders of the original Final Plot no. 39/2 have been allotted Final Plot no. 39/2 and is covered under the Municipal Town Development Planning No. 86 (SarkhejOkafFatevadiMakarba) Final plot no. 39/2 and both the survey numbers are plotted. Now these are the petitions in which the petitioners have received notices along with sketch issued in the purported exercise of Section 48A of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the "Act") read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as the "Rules") and are given opportunity of hearing as well as representation and than an order is passed in which Page 5 of 28 C/SCA/3359/2018 ORDER the authorities have directed to hand over the possession within a period of 7 days. Pursuant to the said action, an advance copy was given by the petitioners to the learned advocate normally appearing for the respondent implementing authority and the learned Government Pleader representing the State Government and looking to the urgency of the situation the Court has taken up the hearing of these petitions in which in the lead matter, learned advocate Mr. Ekrama Qureshi has appeared on behalf of the petitioners and so far as Special Civil Application No. 4068 of 2018 is concerned, learned advocates Mr. J.V. Vaghela and h Mr. D.B. Patel has appeared on behalf of the petitioners and in case of Special Civil Application No. 3687 of 2018 learned advocate Mr. S. R. Yadav has represented the petitioners. So far as the authorities are concerned the implementing authority, the Corporation is being represented by the learned advocate Mr. Deep D. Vyas and learned Government Pleader Ms. Manisha Shah appearing with Mr. Utkarsh Sharma learned AGP has appeared on behalf of the State Government.
8. When the hearing is taken up, all these petitions arising out of almost similar issue with respect to implementation of the scheme in question on account of which the petitioners are to be Page 6 of 28 C/SCA/3359/2018 ORDER affected, learned advocate Mr. Qureshi has contended that there is a gross violation of the principles of natural justice also the period which has been mentioned by the statue has not been properly taken care of by the authority. Hence, non compliance of the mandatory provisions would have vitiated the process. 8.1. Learned advocate Mr. Qureshi has submitted that there is gross delay in publication of the scheme and by virtue of Section 50 and Section 51 of the Act the same is appearing to be in gross violation and the period contemplated has already been lapsed in the month of September, 2016. It has also been contended that due process of law has not been observed and hence the entire process has been undertaken completely in violation of the statutory mandate. Learned advocate Mr. Qureshi has further contended that though in representation as well as personal hearing, it was specifically pointed out the manner in which they are being affected, such representation and contention appears to have been not been dealt with at all and on the contrary, complete non application of mind is shown by the authority.
Learned advocate Mr. Qureshi has submitted that simply because the authority is in dire need of road widening that does not absolve the implementing authority to ignore the mandate of Page 7 of 28 C/SCA/3359/2018 ORDER the statute. So far as violation of the principles of natural justice is concerned, learned advocate Mr. Qureshi has stated that such violation is reflecting from the very tenor of the order in which no adequate reasons are assigned and the reasons are part and parcel of the principles of natural justice. As a result of this, the order in question is not sustainable in the eye of law. Learned advocate Mr. Qureshi has further contended that there is in fact no need of road widening in any way. In fact the background of the area is with the wells of the ONGC and are situated at a distance of 100 feet from divider (center point of highway) and the petitioners has come to know from the newspaper in public advertisement dated 13.02.2018 that road expansion under Town Planning Scheme No. 221 is stopped by respondent no. 2 office because there is a Well of ONGC on the said road and if this be the case, no such road expansion can be possible even under the Town Planning Scheme No. 86 because on this road also Well of ONGC is located. It has also been contended that respondent no. 2 authority is the authority couched with the powers of quasi judicial authority and therefore has to act on as per Article 14 of the Constitution of India and upon principle of fair play in action no such relevant documents have been supplied to the petitioners which has affected the right of Page 8 of 28 C/SCA/3359/2018 ORDER effective representation. It has been contended that the authority in question has passed an order based upon improper interpretation of Section 48A of the Act and other relevant sections stipulating details of procedure right from Sections 52 to 67 of the Act has not been observed and it is in this context the action is not just and proper. Learned advocate Mr. Qureshi has contended that the impugned notice suffers from vice of delay and laches and as against that the provisions contained in Section 51 of the Act no such belated action be permitted more particularly, when the Act has been amended in the year 2014. Even otherwise, it has been contended that respondent no. 2 cannot be said to be appropriate authority under the provisions of the Town Planning Act. The appropriate authority for the purpose of implementing of the Town Planning Scheme No. 86 as per the say of learned advocate for the petitioners is the Urban Development Authority which has still not issued any notice and as such by referring to this contention learned advocate for the petitioners has submitted that there is a clear non compliance on the part of the respondent authority in observing the procedure established by law. Since this be the case, the action on the part of the respondent authority as well as the order deserve to be quashed.
Page 9 of 28 C/SCA/3359/2018 ORDER 8.2. Learned advocate appearing for the respective other petitions of this group have practically reiterated the same submissions of learned advocate Mr. Qureshi and further reiterated that detailed objections have not been considered in the right spirit. It has been brought to the notice that the decision which is reported in the case of Bikubhai Vitthalbhai Patel & Ors., v. State of Gujarat & Anr., reported in 2006 (1) GLR 558 more particularly para 31 is clearly indicating that the matter has not been considered in true spirit. The said para is reproduced hereinafter :
31. As noted earlier, great deal of material goes into town planning. It is a matter which governs large number of lives of the citizens residing in cities and surrounding areas. It is a task to be performed by the experts of the field on the basis of available material with a view to moulding the developments of the cities in near future. Such planning has to be longterm, well considered, well thought out and with the help of authorities who are wellinformed. In the present case, except the noting of the Hon'ble Minister suggesting change of user of the land from that of residential zone to education zone, there is absolutely no material on record on the basis of which such a decision could have been arrived at. Discretion howsoever wide has to be exercised within the four corners of law and has to be exercised upon consideration of relevant factors. Exercise of discretion which is based on extraneous consideration or which is based on nonconsideration of any material would equally be irrational and arbitrary. To repeat, on going through the entire files, there is absolutely no material available on the files which prompted the Government to provide for a specific zone. Subsequent exercise of calling for objections Page 10 of 28 C/SCA/3359/2018 ORDER and suggestions and having considered all such objections and suggestions would not in any way save otherwise illegal exercise. Even after issuing of the preliminary notification dated 22nd July 2004, except for considering the suggestions and objections, there is no material on record which would even otherwise augment the view of the Government."
8.3. Considering this set of circumstance, learned advocates have contended that the issue may be reconsidered by granting at least some reasonable period to represent. No other submissions have been made.
9. Now to meet with the stand taken by the learned advocate for the petitioners, learned advocate Mr. Vyas appearing for the respondent Corporation has vehemently contended that there is a clear compliance of the statutory provisions contained under the Act and the relevant Rules. It has been contended that enough and adequate opportunity has been given and after considering at length the order in question is passed which cannot be said to be improper or illegal in any manner. In fact in the month of January, 2018, the maps of the Highway Estate have been tendered through written representation. Additionally on 19.01.2018, a further representations have been given by other members of the Highway Estate and one Mr. Iqbalbhai Ibrahimbhai Qureshi has also independently tendered his Page 11 of 28 C/SCA/3359/2018 ORDER written representation on 16.02.2018. Again the Highway Estate members have been extended the opportunity of hearing on 16.02.2018 and after extending at length the appropriate opportunity, in complete conformity with the principles of natural justice, the order is passed which cannot be said to be erroneous in any manner. Learned advocate Mr. Vyas has further contended that the Draft Town Planning Scheme No. 86 has already been sanctioned by the authority and as a part of the procedure, a mandatory procedure is completely observed by the authority and only thereafter, this notice has been issued under Section 48A read with Section 68 of the Act and Rule 33 of the Rules. Hence, there is a substantial compliance of the not only of the principles of natural justice but also with regard to the statutory provisions and therefore, it cannot be said in any manner that the action is unjust or arbitrary. An attempt was made to indicate that there is some element of discrimination treatment meted out as in the very same area with respect to other Town Planning Scheme, the State Government has directed not to take action till the finalization of the Town Planning Scheme, but then learned advocate Mr. Vyas has clarified by producing a communication dated 11.07.2017 pointing out in clear terms that on the contrary the State Page 12 of 28 C/SCA/3359/2018 ORDER Government has directed to complete the process as fast as possible and in turn report. Now if that be so, learned advocate Mr. Vyas has stated that there is no violation of even Article 14 of the Constitution of India in any manner.
9.1. Learned advocate Mr. Vyas has filed an affidavitinreply and has taken a categorical stand that the Town Planning Scheme in consultation with GTP, the resolution to declare the intention of Town Planning Scheme No. 86 (SarkhejOkaf FathevadiMakarba) was made on 02.01.2010. Such declaration of intention was published in Government Gazette on 15.01.2010 and then advertisements were given in the 'Divya Bhaskar'' and 'Times of Karnavati' newspaper on 20.01.2010 at relevant point of time. The owners meeting was scheduled on 12.03.2010 in connection with the public notice and after completing the procedure at length, the same came to be published under Section 42(1) of the Act in the Government gazette on 15.05.2010. The scheme was thereafter, after compliance of substantial procedure as indicated under the Act was then finalized and submitted before the State Government on 07.07.2010, which ultimately came to be sanctioned by Notification dated 10.09.2012. As a result of this, by virtue of Page 13 of 28 C/SCA/3359/2018 ORDER sanctioning of Scheme, the lands have vested with the Corporation free from encumbrances.
9.2. Learned advocate Mr. Vyas has further contended that in the draft scheme the area of the subject matter were free from encumbrances made by the petitioners on road having width of 60 meters and 12 meters and the said part is essentially vital part of development of the area in the scheme which has been sanctioned by the Government as stated above. As a result of this, the steps which have been contemplated under section 48A and Section 68 of the Act and Rule 33 of the Rules would according to him in absolute compliance of the statutory requirements.
9.3. Learned advocate Mr. Vyas has further contended that not only this, even the personal hearing including the right to represent in writing has also been extended to almost all the affected persons and the occupiers of the land/property in question and therefore, the entire decision making process is in complete compliance of statutory provisions and therefore, the action under challenge is not be entertained. Page 14 of 28 C/SCA/3359/2018 ORDER
10. In rejoinder to this submission, learned advocate Mr. Qureshi has submitted that the impugned order is also not in conformity with the principles of natural justice inasmuch as no adequate reasons are assigned and therefore, by referring to the decision delivered by the learned Single Judge of this Court passed in Special Civil Application No. 4478 of 2016 dated 08.09.2017 and allied matters, has requested that the matter be remanded for fresh consideration for passing the reasoned order. The said order dated 08.09.2017 is placed on record.
11. To meet with this stand taken by learned advocate for the petitioners in rejoinder, learned advocate Mr. Vyas as pointed out two decisions of this Court in the case of Satyadev Parasnath Pandey & Ors., v. State of Gujarat reported in 2015(2) GLR 1475 as well as in the case of Ramanbhai Hargovinddas Limachia & Ors., v. State of Gujarat reported in 2016(3) GLR 2694 passed by the Division Bench of this Court and has contended that no case is made out by the petitioners and the petitions deserve to be dismissed. It has also been canvassed by learned advocate for the respondent authority that when there is a conflict between the public interest and the private interest, then the public interest must be given a Page 15 of 28 C/SCA/3359/2018 ORDER predominance and private interest has to merge. Learned advocate Mr. Vyas has pointed out that the area is analyzed by the expert body and has categorically found that there is a need of development of the area by enlarging and erecting the road and therefore, on the basis of such analysis if action is being initiated some cannot form the subject matter of extra ordinary jurisdiction as such there is a substantial compliance of the provisions contained under the Act and the Rules and, therefore, the petitions may not be entertained.
12. So far as the contentions relating to not maintaining the period stipulated in Sections 50 to 51 of the Act contended the Court found that there is a substantial compliance of overall procedure and the order in question is in complete conformity with of the principles of natural justice and further the fact that when draft scheme once sanction is to apply mutatis mutandis, this Court finds that the said plea is not possible to be accepted as fatal when the ultimate action is in close conformity with the procedure established by law. Hence the petitions being devoid of merit deserve to be dismissed.
13. Having heard the learned advocates for the respective Page 16 of 28 C/SCA/3359/2018 ORDER parties to the proceedings and having gone through the material on record which is tried to be pressed into service and in view of the principles laid down by the catena of decisions referred to by the respective sides, this Court is of the opinion that there is a substantial compliance of the mandate of the statute and there is no material lapse of any nature in observing the provisions and in fact it is reflecting from the record that the order in question has been passed in complete compliance of the principles of natural justice and not only are the representative has been allowed, but right to make the personal representation is also extended to the relevant persons who are affected and it is only after extending such opportunity of hearing, a subjective decision is arrived at in which it is found that no error appears to have been committed.
13.1. It is also observed by the Court that detail contentions have been raised by the petitioners and have been dealt with and keeping in view the fact that Sections 48A and Section 68 of the Act with Rule 33 of the Rules, the order is passed which cannot be said to be erroneous in any form. The decision making process by the authority is also not found faulty, in fact all the relevant statutory provisions have been kept Page 17 of 28 C/SCA/3359/2018 ORDER in mind while passing the ultimate order of handing over the possession to the implementing authority. As a result of this, the petition is found to be devoid of merits.
13.2. This Court has called upon the respondent authorities substantially on the ground that one of the contention which has been raised about the discriminatory treatment. The contention is generated in para 11 of the petition on oath, but then after the production of the communication dated 11.07.2017 it has been brought to the notice of this Court that it is on the contrary other way round. In fact, the State Government has directed to see that this scheme which is related to road is to be concluded at the earliest and has categorically stated that since public interest is involved, no such representation be considered. Upon perusal of this documents, learned advocate Mr. Qureshi has also not controverted the same and rather has not precipitated the said plea of discrimination any further. Hence, considering the aforesaid set of circumstance, even this plea of discrimination is also appearing to be not available to the petitioners.
13.3. The resultant effect of the order dated 23.01.2018 has got Page 18 of 28 C/SCA/3359/2018 ORDER effect on the petitioners and occupiers to some extent, but the Court even independently has also examined as to whether the plea of discrimination is visible, which the Court finds none and therefore, the ultimate effect of this examination of the material would lead to a situation that simply because the petitioners and other persons are affected on account of implementation of the said scheme, public interest may not be allowed to be sub merged.
13.4. In the context of decision which has been brought to the notice and relied upon by learned advocates Mr. Qureshi which is delivered by the learned Single Judge of this Court in the case of Purshottambhai Chandubhai Gajera (supra) in which by brief order, the notice which was issued under Section 68 of the Act was found to be without jurisdiction, but here is a case in which no such document is available on hand. On the contrary, effective hearing has been given and every details have been examined and only thereafter the impugned order is passed with authority of law and therefore, it is difficult for this Court to adopt the principles of the said decision as straightjacket formula as facts are not such as compared to the present case on hand and therefore, a slight change in the fact would make a Page 19 of 28 C/SCA/3359/2018 ORDER world of difference in applying the principles as precedent and as a result of which, the said decision is of no assistance to the petitioners.
13.5. On the contrary, there appears to be full force in the submissions made by learned advocate appearing for the respondent authorities inasmuch as the subsequent decision which has taken place in respect of the road widening issue covered up this very provisions of law and has propounded that no case is made out. Some of the relevant extract contained in the said decision since are worth to be taken into consideration the same are reproduced hereinafter for arriving at the ultimate decision.
15. It refers to the situation where the person complaining of the violation of rules of natural justice is required to show any prejudice caused to him. In the facts of the case the petitioners cannot say that any prejudice is caused to them. Therefore the submissions made by learned Counsel Shri S.P.Majmudar with much emphasis on this aspect about the individual notice having not been served and therefore it is in violation of principles of natural justice has no merit. One more aspect which is required to be considered is that the allotment of the flat was made to the petitioners but as stated by learned Counsel Shri S.P.Majmudar that as it was not suitable and therefore the petitioners had not given the option for the same. This has another aspect with regard to the allotment of the another land or the compensation. The issue involved in the present case is with regard to the purported exercise of power and the scheme under which the land is covered. Section 48(A) referred to vesting of land Page 20 of 28 C/SCA/3359/2018 ORDER in appropriate authority. It provide:
"(1) Where the draft scheme has been sanctioned by the State Government under subsection (2) of Section 48, (hereinafter in this Section, referred to as 'the sanctioned draft scheme') all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g) or (h) of subsection (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances."
Thus, the provisions of Section 48(A) clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. As stated in the affidavit in reply, the draft scheme has been approved by the State Government and therefore the submissions cannot be accepted. Again, before the scheme can be finalized under Section 52, it is required to give the notice following the procedure under Rule 26 and the representation could be made. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Babulal Badriprasad Varma v. Surat Municipal Corporation and ors. (supra) which has been referred to by both the sides. The Hon'ble Apex Court has discussed with regard to the provisions of this very Act and the procedure which is required to be followed. The Hon'ble Apex Court referring to this very issue with regard to the service of the special notice has made the observations and the issue was kept open though it was observed that the Appellant is not entitled to any relief even if it was obligatory to serve a special notice. In the case before the Hon'ble Apex Court, it was the tenant who had made a grievance and therefore referring to Rule 21 and 26, the observations have been mad that the person interested could make the representation whereas Rule 17 as stated above refers to the owners of the land who would have the opportunity. Thus, the scheme of the Act and the Rules take sufficient care that the opportunity is granted. In any case as observed when the public notice is also issued for the same purpose, the underlying object or the purpose is to give a notice to the public at large and the person interested to make his suggestions or objections and the individual notice is by way of additional opportunity but it would not make the Page 21 of 28 C/SCA/3359/2018 ORDER action or the procedure invalid. If such an interpretation is made that even though public notice is issued and the private or the special notice is not served it would make the entire procedure invalid, then the very object of the public notice as referred to in the statute is redundant and frustrated. Therefore the underlying object of the statute has to be considered and when the statute provides for the public notice as sufficient notice and when the legislature has also provided for a public notice, it cannot be interpreted in a manner which frustrate or negate the very provision of the statute.
16. A useful reference can also be made to the judgment of this Court (Coram: A.R.Dave,J) reported in 2004 (3) GLH 675 - Jethabhai Mepabhai Makwana v. State of Gujarat wherein it has been observed that in the process of town planning some one is bound to be badly affected and the variation in the scheme cannot be readily accepted. Again a reference is made to the doctrine of proportionality that the balance has to be struck between the individual claim and the right of the Society. It is observed:
"The doctrine of proportionality itself provides that in the process of striking the balance, for betterment of the society at large, if a person has to suffer, it cannot be said that the said doctrine has been violated."
Therefore, the individual may have a recourse including the compensation, and therefore, the contention made by learned Counsel Shri S.P.Majmudar cannot be accepted."
13.6. However, while adverting to the said observations, it deems it necessary to even refer to some of the relevant provisions contained under the Act. Section 49 of the Act deals with the 'Restriction on use and development of the land after declaration of a scheme'. The effect of this provisions indicates that the date on which draft scheme is published under Section 41 of the Act Page 22 of 28 C/SCA/3359/2018 ORDER restriction of use of development of the land was applied which would mean that when the land in question is demarcated for the town planning road purpose, the same cannot be used for any other purpose. Section 48A of the Act is dealing with the issue of 'Vesting of land in appropriate authority' which reads as under:
"Section 48A: Vesting of land in appropriate authority - (1) Where a draft scheme has been sanctioned by the State Government under subsection (2) of Section 48, (hereinafter in this section, referred to as 'the sanctioned draft scheme'), all lands required by the appropriate authority for the purposes specified in clause (c ), (f), (g), or (h) of subsection (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances.
(2) Nothing in subsection (1) shall affect any right of the owner of the land vesting in the appropriate authority under that subsection.
(3) The provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if
(i) sanctioned draft scheme were a preliminary scheme, and
(ii) in subsection (1), for the words "comes into force" the words, brackets and figures "the date on which the draft scheme is sanctioned under subsection (2) of Section 48" were substituted."
13.7. It is undisputed position that the land upon which the property of the petitioners is situated where the portion of it is forming part of the Town Planning Scheme and as such, the said portion shall vests absolutely in the authority free from all encumbrances on the date on which the draft scheme is Page 23 of 28 C/SCA/3359/2018 ORDER sanctioned. Here in the present case on hand on account of Sarkhej Gandhinagar Highway 60 meter road parallel 12 meter service road is contemplated. This road erection is effecting all these petitioners and for that purpose by virtue of Section 48A read with Section 68 of the Act and Rule 33 of the Rules, notices have been issued to all the persons affected including the petitioners and in response thereto, written representations have also been made before the authority. Further more while dealing with the representation, even personal hearing was also extended on 03.01.2018 and all the occupiers have been extended such an opportunity of hearing for three intermittent days continuously and thereafter upon analyzing the effect of the scheme and representation of the petitioners and the law applicable, it was found by the authority that such objections as against the public interest are not to be considered as a result of which, the order is passed, which clearly reflects proper application of mind as well. All the petitioners and occupiers whether through the Power of Attorney or on the sale deed also appears to have been considered and having found that the portion is forming part of the Town Planning Scheme which is already sanctioned, the authority found no substance in the objections raised by the petitioners and the other affected Page 24 of 28 C/SCA/3359/2018 ORDER persons.
13.8. Now in this context, it is found that the based upon micro level planning the provision of 12 meter road in parallel to highway is contemplated and therefore this necessity whether it is proper or cannot again form the subject matter of exercising extra ordinary jurisdiction. The Town Planning Scheme in a way is micro planning of what is provided and therefore it is not for the Court to examine whether this need is expedient or not and to what extent. As a result of this, the contention that there is no necessity of service road in the area and also that if still curve is to be affected to save the property of the petitioners, this issue cannot be examined by the Court in extra ordinary jurisdiction as also observed by one of the decision of this Court in the case Jethabhai Mepabhai Makwana v. State of Gujarat reported in 2004 (3) GLR 675 in the case of wherein it is observed in no uncertain terms that in the process of Town Planning someone is bound to be badly affected and the variation in the scheme cannot be readily accepted. Again a reference is made to the doctrine of proportionately that the balance has to be struck between the individual claim and interest of the society at large and in that context it is observed by the Court that the doctrine Page 25 of 28 C/SCA/3359/2018 ORDER of proportionality itself provides that in the process of striking balance for betterment of the society at large, if a person has to suffer it cannot be said that the said doctrine has been violated and therefore, an individual may have an ultimate remedy and recourse including seeking compensation if any. As a result of this, plea of damage to the petitioners and the adverse effect cannot be evaluated as against the interest of the Society at large in the present proceedings.
13.9. A further decision delivered by the Division Bench of this Court in the case of Ramanbhai Hargovinddas Limachia (supra) in which the provisions of Section 48 as well Sections 68 as well as 69 of the Act have been analyzed including Rule 33 of the Rules and has observed while confirming the decision delivered by the learned Single Judge that no case is made out in that case. Ultimately the Letters Patent Appeal came to be dismissed. A reference deserves to be made of in the said judgment to some extent. While considering Section 48 of the Act, the Court has observed in para 3.3. that 'considering Section 48A of the Act as the land in question is needed for 36 meter road under the sanctioned Draft Town Planning Scheme, the provisions of Section 68 and Section 69 of the Act shall mutatis mutandis Page 26 of 28 C/SCA/3359/2018 ORDER apply to the sanctioned draft scheme'. Taking into consideration, here also, the draft scheme has already been sanctioned and has got the effect as if it is a preliminary scheme and by virtue of Section 48A of the Act portion of the property/land in question is forming part of the Town Planning Scheme, the same shall vests absolutely in appropriate authority free from all encumbrances and here in this case the objections which have been raised have also been dealt with by the authority with true application of mind. The procedure established by law has been substantially complied with by the authority and since action is in consonance with the provisions of Town Planning Act and Rules, more particularly, Section 48A, Section 67, Section 68 of the Act and Rule 33 of the Rules, it appears that the petitions being devoid of merit, deserve to be dismissed.
14. The aforesaid situation in overall form appears to this Court that there is a substantial compliance of provisions of the Act and the Rules. There is also effective extension of opportunity to represent the case and the decision making process in the form of order dated 23.01.2018 is also appears to be not erroneous in any form. Hence, no case is made out by the petitioners. Hence, these group of petitions being devoid of merit, Page 27 of 28 C/SCA/3359/2018 ORDER the same deserve to be dismissed. Accordingly, all the petitions are dismissed by way of this common order with no order as to costs.
(A.J. SHASTRI, J.) /phalguni/ Page 28 of 28