Gujarat High Court
Vasantben Vallbhbhai vs State Of Gujarat & on 25 February, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
VASANTBEN VALLBHBHAI GOLAKIYAV/SSTATE OF GUJARAT C/SCA/8300/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8300 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ VASANTBEN VALLBHBHAI GOLAKIYA & 1....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance: MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1 - 2 MR VIRAL J DAVE, LEARNED ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 to 3 MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 25/02/2013 ORAL JUDGMENT
1. Rule.
Mr. Viral J. Dave, learned Assistant Government Pleader wavies service of notice of Rule for respondents Nos.1 to 3 and Mr. Dhaval G. Nanavati, learned advocate wavies service of notice of Rule for respondent No.4. On the facts, and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and finally decided.
By preferring this petition, under Article 226 of the Constitution of India, the petitioners have challenged the Notification dated 12.07.2010, issued by the State Government, in exercise of powers under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 ( the Act for short), whereby, while sanctioning the Preliminary Town Planning Scheme No.28(Althan Bhatar), Surat, a modification has been made by deleting Remark No.4 in the Remarks column in the Redistribution Statement prepared by the Town Planning Officer, resulting in the petitioners being deprived of Final Plot No.145, that was allotted to them.
Briefly stated, the case of the petitioners is that they are the owners and occupiers of land bearing Block No.13/p admeasuring about 1150 sq. meters. The intention to frame Town Planning Scheme No.28(Althan Bhatar), Surat, was declared by respondent No.4 Surat Municipal Corporation, under Section 41(1) of the Act, by issuing a Notification, on 06.06.1995. The Surat Municipal Corporation prepared the Draft Town Planning Scheme and submitted it to the State Government for sanction, on 27.02.1997. The Draft Town Planning Scheme was sanctioned by the State Government on 30.07.1998, under Section 48 of the Act. Thereafter, the Town Planning Officer (respondent No.3) was appointed under Section 50 of the Act who, thereafter, prepared the Preliminary Town Planning Scheme, as prescribed under Section 52 of the Act. While preparing the Preliminary Town Planning Scheme, respondent No.3 published a Notice and invited objections qua the lands included in the Town Planning Scheme No.28 (Althan Bhatar). The petitioners made detailed objections vide their letter dated 29.03.2007. After considering the same, as well as objections from other parties, Final Plot No.145, admeasuring about 856 sq. meters was allotted to the petitioners in lieu of original Plot No.13-J, which had been carved out from Plot No.13/ Survey No.11- paiki. Respondent No.3 prepared the Preliminary Town Planning Scheme and submitted it to the State Government under Section 52 (2) of the Act, for its sanction under Section 65 of the Act. The Redistribution statement i.e. Form No. F, was prepared as per the provisions of Rules 21 and 35 of the Gujarat Town Planning and Urban Development Rules, 1979 ( the Rules for short). The names of the petitioners were mentioned in the column of owners in Form No. F prepared by respondent No.3. The plan also showed Final Plot No.145 as well as original Plot No.13/p. The State Government (respondent No.1) sanctioned the Preliminary Town Planning Scheme vide the impugned Notification dated 12.07.2010, making substantial modifications in the Town Planning Scheme prepared by respondent No.3. Respondent No.1 has modified the allotment of Final Plot No.145 in lieu of original Plot No.13/p and deleted Remark No.4 in the Remarks column on the Redistribution Statement prepared by the Town Planning Officer under Rules 21 and 35 of the Rules. The petitioners, on coming to know of this modification, made a detailed representation on 17.01.2012, to respondent No.1, pointing out that by virtue of the deletion of Remark No.4 in the Remarks column of the Redistribution Statement, they have been deprived of the land bearing Final Plot No.145, admeasuring 856 sq. meters, allotted to them by respondent No.3, while preparing the Preliminary Town Planning Scheme. There is no response to this representation of the petitioners. Hence, the present petition.
Mr. D.K. Puj, learned advocate for the petitioners, has submitted that the modification that has been made by the State Government vide Notification dated 12.07.2010, has the effect of totally depriving the petitioners of Final Plot No.145 that was allotted by respondent No.3 in the Preliminary Scheme. While making such modification, the petitioners have not been granted an opportunity of hearing, which is not in consonance with the principles of law laid down by this Court in the case of Kishanbhai Hargovandas Patel & Anr. V. State of Gujarat & Ors. reported in 2010 (4) GLR 2867.
5. It is further submitted that the power of modification vested in the State Government under Section 65(1) of the Act, is not absolute or unfettered. Before exercising such power, an opinion must be formed that such modification is necessary. Moreover, as per the provisions of Section 65 (1), modifications may be made if they are necessary for the purpose of correcting an error, irregularity or informality. It is further submitted that in the present case, the modification is more than substantial and has the effect of total deprivation of the land, insofar as the petitioners are concerned, which could not have been done while exercising power under Section 65 of the Act. There is no material on record to indicate that the modification has been made after formation of an opinion by the State Government that there is an error, irregularity or informality, due to which it is necessary to modify the Scheme.
6. On the strength of the above submissions, learned counsel for the petitioners submits that the Notification dated 12.07.2010, qua the petitioners, may be quashed and set aside and the petitioners may be granted an opportunity of hearing by the State Government.
7. Mr. Viral J. Dave, learned Assistant Government Pleader, has opposed the grant of the prayers made in the petition by submitting that the State Government has sanctioned the Preliminary Town Planning Scheme vide its Notification dated 12.07.2010, and made substantial modifications in the Scheme prepared by the Town Planning Officer by deleting Remark No.4 in the Redistribution Statement, whereby Final Plot No.145 has been allotted to the petitioners. This modification has been made after following the procedure laid down under the Act and after scrutinising the Scheme. It is further submitted that under the provisions of Section 65(1) of the Act, the State Government is empowered to make such a modification, therefore, the prayers made by the petitioners may not be granted.
8. Mr. Dhaval G. Nanavati, learned advocate for respondent No.4, has submitted that respondent No.4 Surat Municipal Corporation, has no role to play at this stage, as it is the implementing agency and the action of modification of the Scheme has been taken by the State Government.
9. Having heard learned counsel for the respective parties, it may be fruitful to advert to the provisions of Section 65 of the Act, which envisage the scope of power of the State Government to sanction or refuse to sanction the Scheme, and the effect of such sanction. The said provision of law is reproduced hereinbelow:
Sec.
65. Power of Government to sanction or refuse to sanction the scheme and effect of sanction:
(1) 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 a 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 modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality.
Where the State Government sanctions the preliminary scheme of the final scheme, it shall state in the notification -
(a) the place at which the scheme shall be kept open for inspection by the public, and
(b) a date in which all the liabilities created by the scheme shall come into force:
Provided that the State Government may from time to time such date, by notification, by such period, not exceeding three months at a time, as it thinks fit.
(3) On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act.
10. It is clear from a reading of the above provision of law that in the case of a Preliminary Scheme, the State Government may sanction the Scheme by making modifications as may, in its opinion, be necessary for the purpose of (i) correcting an error, (ii) irregularity or
(iii) informality. The power of modification, therefore, is to be exercised in the above three situations. Before effecting the modifications, however, an opinion must be formed by the State Government that due to such error, irregularity or informality, it is necessary to modify the Preliminary Scheme. Meaning thereby, that the power under Section 65(1) of the Act, as vested in the State Government, is not absolute or unfettered.
11. In the case of Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. Reported in AIR 2008 SC 1771, the Supreme Court held as below:
21.
It is true the State Government is not bound by such opinion and entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.
22. * * * *
23. * * * *
24. Proviso opens with the words "where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary ......" These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan.
25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression : "so considered necessary" is again of crucial importance. The term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word "necessary" must be construed in the connection in which ft is used. (See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar) The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan.
(emphasis supplied)
12. It has been held by the Supreme Court in the above quoted judgment that an order passed without forming the requisite opinion would be void.
13. In the case of Kishanbhai Hargovandas Patel & Anr. V. State of Gujarat & Ors.
(Supra) , this Court was considering a similar situation where there had been a substantial modification in the Preliminary Town Planning Scheme submitted by the Town Planning Officer to the State Government. No opportunity of hearing had been granted to the petitioners therein, before making those modifications.
14. The case of the petitioners of the present petition is on a better footing as they have been totally deprived of the Final Plot allotted to them by virtue of the modification of the Scheme by respondent No.1.
15. In the same judgment, this Court, after noticing the provisions of Section 65 of the Act, has held as below:
22.
The sum and substance of the aforesaid discussion is that in a case where the State Government sanctions the Preliminary Town Planning Scheme with modification in the Preliminary Town Planning Scheme suggested by the Town Planning Officer and instead of Final Plot A suggested by the Town Planning Officer under the Town Planning Scheme, Final Plot B is allotted to the land owner at the time of sanctioning the Preliminary Town Planning Scheme No.65 of the Town Planning Act i.e. modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer to the aforesaid extent, before such a modification, an opportunity is required to be given to the original land owners to submit their objections and suggestions and at that stage, principles of natural justice is required to be read into.
Under the circumstances, the impugned Preliminary Town Planning Scheme No.6(Unja) sanctioned by the State Government with respect to the lands of the petitioners - original land owners deserves to be quashed and set aside.
(emphasis supplied)
16. The modification of the Preliminary Scheme by respondent No.1 is of such a nature that it would have the effect of depriving the petitioners of their entire holding of land. They are, therefore, adversely affected by the modification to the Scheme. As such, it was incumbent upon respondent No.1 to issue notice to the petitioners and grant them an opportunity of hearing before making the modification, in consonance with the principles of natural justice and the rule of Audi Alteram Partem. Not only should an opportunity of hearing have been provided to the petitioners, their objections ought to have been duly considered before making the modification. However, respondent No.1 has ignored the representation of the petitioners dated 17.01.2012.
17. There is no material on record to indicate that the State Government has made the modifications in the Scheme, after forming an opinion that it is necessary to do so, in order to correct an error, irregularity or informality. As such, the exercise of power under Section 65(1) of the Act by the State Government, qua the petitioners, while issuing the Notification dated 12.07.2010, is not in consonance with the scope of the power vested in the State Government under Section 65(1) of the Act. The action of modification of the Preliminary Town Planning Scheme insofar as the petitioners are concerned is, therefore, unsustainable in law.
18. For the aforestated reasons, as there is no material on record to indicate that the power of modification of the Preliminary Town Planning Scheme as vested in the State Government under Section 65(1) of the Act, has been exercised after the formation of an opinion that such modification is necessary for the purpose of correcting an error, irregularity or informality, and as the principles of natural justice have been violated by respondent No.1, the Notification dated 12.07.2010 issued under Section 65(1) of the Act, qua the petitioners, is hereby quashed and set aside.
19. The State Government shall grant an opportunity of hearing to the petitioners, by treating the Notification dated 12.07.2010 as a Notice to them. Respondent No.1 shall take into consideration the objections and suggestions made by the petitioners in their representation dated 17.01.2012, along with other submissions that may be raised by them, during the course of hearing. The date of hearing shall be communicated by respondent No.1 to the petitioners, who would be entitled to an opportunity of personal hearing. After considering all objections and suggestions put forth by the petitioners, an appropriate decision, in accordance with law, shall be arrived at by the State Government. If any other party is likely to be affected, that party shall also be granted an opportunity of hearing.
20. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) piyush Page 15 of 15