Gujarat High Court
Patel Jayeshbhai Hirabhai vs State Of Gujarat on 24 December, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7974 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8868 of 2020
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PATEL JAYESHBHAI HIRABHAI & 7 other(s) Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1,2,3,4,5,6,7,8 for the Respondent(s) No. 3 MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 3 NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 24/12/2021 CAV ORDER
1. Both these petitions have been preferred by the petitioners for the same cause of action and, therefore were heard and decided together.
2. For the purpose of convenience, the facts of SCA No.7974 of 2020 shall be referred to.
3. The petitioners have prayed for quashing and setting aside the impugned notification dated 2.11.2011 issued by the Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar.
The grievance of the petitioners is that the 18 meter road is being shifted towards the Final Plots which is Page 1 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 without authority of law, unconstitutional and violative under Articles 14 and 300A of the Constitution of India.
4. The facts in brief are as under:
* It is the case of the petitioners that the respondent especially the Himmatnagar Nagar Palika is shifting the alignment of 18 meter wide T.P. / D.P. road towards their Final Plots under the guise of notification under Section 48(2) of the Town Planning Act. It is the case of the petitioners that nine years after the notification was issued, the respondent No.3, Himmatnagar Nagarpalika has issued notice dated 9.6.2020 by wrongly assuming powers under Section 68 of the Gujarat Town Planning and Urban Development Act, 1976 (for short, hereinafter referred to as `the Act') read with Rule 33 of the Gujarat Town Planning & Urban Development Rules, 1976 (for short, hereinafter referred to as `the Rules') at the stage of draft Town Planning Scheme.
Page 2 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 * It is the case of the petitioners that a notice was issued by the petitioners through their advocate on 10.6.2020 pointing out that the construction permission and the development is being undertaken in accordance with the permissions granted and drainage lines and electricity poles have already been installed. NA order has been issued in September, 2012 and construction permission is issued on 30.3.2016.
* It is the case of the petitioners that after the Draft Development Scheme was sanctioned on 2.11.2011, the learned District Collector, Himmatnagar by his order dated 10.4.2012 granted NA permission for residential purpose. Construction permission was granted on 1.12.2012 which was revised on 30.6.2016. The petitioners have completed construction on the majority part of the area.
5. Mr. N.V. Gandhi, learned counsel for the petitioners would submit that the impugned notice under Page 3 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 Section 68 of the Act read with Rule 33 of the Rules is without jurisdiction as Section 48(A) would not apply in the facts of the case. He would submit that the judgment of the Hon'ble Supreme Court in the case of Babubhai and Company v. State of Gujarat reported in AIR 1985 SC 613 categorically provided that on examination of the scheme, in accordance with the decision in the case of Babubhai (Supra), summary eviction cannot be ordered and before passing an order, persons should be afforded opportunity of hearing. The owner / occupier should be heard. Reliance was also placed on the decision in the case of Municipal Corporation of City of Ahmedabad v. Janakkumar G. Vyas reported in 2000(1) GLH
399. * Mr. Gandhi would further submit that shifting the said 18 meter wide T.P. road towards their Final Plots is contrary to the provisions of Section 45(1) of the Act. It has caused serious hardship to the Page 4 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 petitioners as their construction will be demolished. Reliance is also placed on Rule 33 and what is prayed is that the principle of promissory estoppel will apply.
* Mr. Gandhi, learned counsel for the petitioners has also relied on the following decisions:
- Keshaji Devji Patel through PoA Mohanlal Keshavji v. State of Gujarat reported in 2007(1) GLR, 297,
- Bhatti Subhas Premji v. Secretary, Urban Development and Urban reported in 2012 GLHEL HC 228153 &
- Pareshbhai P. Raghvani v. State of Gujarat reported in 2016(o) AIJEL-HC 235803.
6. Mr. Nikhilesh J. Shah, learned counsel appearing for the respondent - Nagarpalika would submit based on the affidavit-in-reply that the prayer of the petitioners for setting aside of notification dated 2.11.2011 is misconceived. It is not in fact the case that the 18 meter road is shifted towards the Final Plot of the petitioners. In fact, it is the petitioners Page 5 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 who have shifted their construction beyond the permissible limit and have encroached on the proposed construction of the Town Planning road.
He would submit that when the permissions are read namely; the Construction Permission and NA Permission, it is evident that they were granted with a specific condition that the petitioners will not be putting up construction on the land where road is to be laid down in the Town Planning scheme. He would submit that the petitioners have committed mistake in ignoring their piece of land which was used as Kachha Marg and having commenced construction on the boundary of their plots and encroached on the road. All procedures under the Town Planning Act were carried out. A DILR Report / Map has been annexed and it is the case of the petitioners who were required to remove the structure to set the things in line with development plan. The notice under Section 48(A) of the Act is without jurisdiction. The petitioners were not either the occupiers or owners of the plots in question at Page 6 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 the time of framing and finalization of the Draft Town Planning Scheme. Reliance placed on the decision by the petitioners in the case of Babulal (Supra) is misconceived.
7. Mr. N. J. Shah, learned counsel for the respondent -
Nagarpalika has relied on the following decisions:
* Vaishali Pratik Shah v. State of Gujarat reported in 2014 Law Suit (Guj) 1355, * Vadodara Shaheri Jilla Khedut Mandal and others v. Vadodara Municipal Corporation reported in 2014 Law Suit (Guj) 823, * Naranbhai Lallubhai Patel v. B.S. Oza reported in 1988 Law Suit (Guj) 36, * Ramanbhai Hargovinddas Limbachia and 45 others v. State of Gujarat reported in 2016(3) GLR 2695 & * Jethabhai Mepabhai Makwana v.
State of Gujarat reported in 2005AIR (Guj) 132.
8. Having considered the submissions made by the learned advocates for the respective parties, what is evident from the perusal of the notification dated 2.11.2011 is that under Section 41(1) of the Act, the Page 7 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 Himmatnagar Area Development Authority declared its intention of making the draft Town Planning Scheme No.2. A Resolution No.115 of the Board declaring its intention to make the scheme under Section 41(1) of the Act was passed on 27.11.2009. On 8.12.2009, the intention was published in the Gujarat Government Gazette under Section 41(2) of the Act and Rule 61 of the Rules. The same was published in the local Gujarati Newspaper under Section 41(3) of the Act on 10.12.2009. It was submitted to the State Government under Section 10(2) on 14.12.2009. Notice was issued on 11.2.2010 under Rule 17 of the Rules. 61, 95, 90 owners furnished their objections. The Nagarpalika sanctioned the Draft Scheme under Section 42(1) of the Act inviting the objections and suggestions on 8.7.2010. The draft scheme was published in the official Gazette as well as in the local newspaper on 12.7.2010 / 14.7.2010. It was submitted that the sanction of the Government under Section 48(1) of the Act placed on 16.9.2010 and was sanctioned on Page 8 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 2.11.2011.
9. To the contention of Mr. Gandhi that the notice under Section 68 of the Act read with Rule 33 of the Rules is without jurisdiction is misconceived. Reading Section 48(A) of the Act, particularly, sub section (3) thereof would make it absolutely clear that where a Draft Scheme has been sanctioned by the State Government under sub Section (2) of Section 48 of the Act, the provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned Draft Scheme as if sanctioned Draft Scheme was a preliminary scheme. In view of the statutory operation, the contention of the petitioners is misconceived.
10. What is also evident is on reading the notification that the notification had been issued on 2.11.2011. Reading the Development Permission and the NA permission of the year 2020, it is apparent that a specific mention was made in these permissions that they are granted subject to the Draft Town Planning Page 9 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 Scheme. On the date when the notification of 2.11.2011 was issued, the petitioners were neither the owners nor occupiers of the land and, therefore, the contention that the notice is misconceived, is outrightly baseless. As rightly pointed out by Mr. N. J. Shah in view of the judgment of this Court in the case of Ramanbhai Hargovinddas Limbachia (Supra), the petition is premature. It will be in the fitness of things to reproduce Paragraph Nos.3.1 to 3.4 of such decision, which read as under:
"[3.1] Now, therefore, so far as those who are in occupation and /or purchased the plots / lands after the draft Town Planning Scheme came to be sanctioned, they have no legal, valid title and therefore, they cannot make any grievance when the sanctioned draft town planning scheme is being sanctioned considering section 48 of the Town Planning Act qua the land which is required for 36 meter Town Planning Road. As per Section 48A of the Town Planning Act where a draft scheme has been sanctioned by the State Government under subsection (2) of Section 48, all lands required by the appropriate Authority for the purposes specified in Clause (e), (f), (g) or
(h) of subsection (3) of section 40 shall vest absolutely in the appropriate Authority free from all encumbrances. Page 10 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022
C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 [3.2] As observed hereinabove, even as per section 49 of the Town Planning Act on or after the date on which a draft scheme is published on section 41, no person shall, within the area included in the scheme, carry out any development unless such person has applied for and obtained the necessary permission for doing so from the appropriate authority. Thus, the date on which the draft scheme is published under section 41 of the Town Planning Act, restriction on the development of land shall apply, which would mean that when the land in question is earmarked for the Town Planning Road purpose, the same cannot be used for any other purpose.
[3.3] Considering section 48A of the Town Planning Act and as the land in question is needed for 36 meter road under the sanctioned Draft Town Planning Scheme, the provision of sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if sanctioned draft scheme were a preliminary scheme. Under the circumstances, when the land in question is forming part of Town Planning Road of 36 meter and therefore, by virtue of section 48A(i) of the Town Planning Act, the said land shall vest absolutely in the appropriate Authority free from all encumbrances on the date on which the draft scheme is sanctioned under section 48(2) of the Town Planning Act and thereafter when the impugned orders are passed in Page 11 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 exercise of powers under Sections 48A, 67 and 68 of the Town Planning Act and Rule 33 of the Town Planning Rules, the same cannot be said to be either illegal and/or contrary to the provisions of the Town Planning Act. The action of the respondent Corporation / appropriate Authority is absolutely in consonance with the provisions of the Town Planning Act more particularly section 48A of the Town Planning Act. Under the circumstances, the learned Single Judge has rightly dismissed the main Special Civil Application.
[3.4] Now, so far as the submission on behalf of the petitioners that there is no justification of having 36 meter road as the present road, which is available, cater the needs of the traffic is concerned, it is not either for the petitioners and/or even for the Court to consider whether there is any justification of having 36 meter road or not.
Whether there is a need of 36 meter road or not is left to the wisdom of the expert body and the appropriate Authority considering the public interest."
11. In view of the aforesaid categorical findings, the petitions are misconceived and are premature in view of the fact that they are against the sanctioned draft Town Planning Scheme and the petitioners have an ample opportunity to represent their case Page 12 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022 C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021 before the Town Planning officer, who would be appointed under Section 50 of the Act.
12. With the aforesaid reasons, the petitions are dismissed. Interim Relief, if any, stands vacated forthwith. Rule / Notice, if any, stands discharged.
(BIREN VAISHNAV, J) VATSAL S. KOTECHA Page 13 of 13 Downloaded on : Wed Jan 12 14:35:13 IST 2022