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[Cites 12, Cited by 0]

Gujarat High Court

Sattarbhai Adambhai Ghaniwala vs State Of Gujarat on 8 January, 2021

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

       C/SCA/10575/2020                               ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 10575 of 2020

==========================================================
                 SATTARBHAI ADAMBHAI GHANIWALA
                              Versus
                       STATE OF GUJARAT
==========================================================
Appearance:
KAUSHAL H PATEL(9328) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
for the Respondent(s) No. 4
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NANAVATI & CO.(7105) for the Respondent(s) No. 2,3
==========================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                          Date : 08/01/2021

                           ORAL ORDER

Heard learned advocate Mr. Nishit Gandhi with learned advocate Mr. S.P. Majmudar for the petitioner and learned advocate Mr. Maulik Nanavati for Nanavati and Co for respondent nos. 2 and 3 through video conference.

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:­ "(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and set aside the impugned notice dated 12.06.2020 issued by the Town Page 1 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER Planning Officer (at ANNEURE - F hereto) and further be pleased to direct the Town Planning Officer to show the name of the petitioner as the person who would be entitled for the land situated at Harni, Tal­ Dist. Vadodara being Original Plot No.89/1, Final Plot No.47 of Town Planning Scheme No.2 (Harni), Vadodara;

(B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to direct the respondent authorities to maintain status­quo with regard to the land in question;

(C) Pass and such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."

2. Brief facts of the case are that the petitioner is claiming the ownership of part of the land situated at Revenue Survey No.292/1 which is given Original Plot No.89/1 in Town Planning Scheme No. 2 (Harni) Vadodara.

3. It is the case of the petitioner that land in question originally belonged to Late Shri Vikramsinh Khanderao Gaekwad and during his lifetime, he had executed an agreement to sale in favour of the petitioner on 15.05.1991. According to the petitioner, late Shri Vikramsinh Khanderao Gaekwad also executed a Will in favour of the petitioner on 15.05.1991.

4. According to the petitioner, late Vikramsinh Khanderao Gaekwad expired on 28.06.2007. As there were disputes with regard to the entry of Page 2 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER Will, a Special Civil Suit No. 229 of 2015 was instituted for the property in question, wherein by order dated 29.07.2019 passed below Exh.5, the trial Court has ordered to maintain status­ quo by the respective parties.

5. It is the case of the petitioner that after the Town Planning Scheme No.2 (Harni), Vadodara was introduced with regard to the land in question, the petitioner made a representation to the Town Planning Officer on 10.12.2019 and the Town Planning Officer without considering the representation made by the petitioner issued the notice dated 12.06.2020 addressed to Vikramsinh Khanderao Gaekwad and Vijaysinh Khanderao Gaekwad under sub­rule (9) of Rule 26 of the Gujarat Town Planning and Urban Development Rules, 1979 (for short 'the Rules').

6. It is the case of the petitioner that only because the name of the petitioner is not entered into the revenue records of the property in question, the Town Planning Officer did not recognize the right of petitioner over the property in question, though the Will executed in favour of the petitioner is not set aside by any competent Court or authority and as such, the petitioner is entitled to the final plot under the Town Planning Scheme.

7. Learned advocate Mr.Gandhi appearing for the Page 3 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER petitioner submitted that the Town Planning Officer could not have issued the impugned notice dated 12.06.2020 for intimating the decision taken by him under Sub­Section (3) of Section 52 of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the Act, 1976') in the names of late Vikramsinh Khanderao Gaekwad and Vijaysinh Khanderao Gaekwad as the petitioner is occupant of the part of the land in question of the revenue survey no.292/1 which is given the Final Plot No.47 admeasuring 3925 sq. mtrs. According to Mr.Gandhi, the Town Planning Officer ought to have considered the representation of the petitioner dated 10.12.2019 wherein the petitioner has stated that the petitioner is entitled to the land admeasuring 728.5 sq. mtrs. which is purchased by him by agreement to sale as well as which is bequeathed upon the petitioner under the Will. It was also submitted that the petitioner has paid the impact fees of Rs. 2,52,070/­ on 12.08.2016 for regularizing the construction made on the said land. Mr. Gandhi submitted that the Town Planning Officer in total disregard to sub­rule (4) of Rule 26 of the Rules, finalized the town planning scheme under sub­section (3) of Section 52 of the Act,1976, and therefore, the impugned notice issued under sub­rule (9) of Rule 26 intimating about the decision taken by the Town Planning Officer under section 52(3), is contrary to the Rules and the same is Page 4 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER required to be quashed and set aside.

8. On the other hand, learned advocate Mr.Nanavati who appears for the respondent no.2 ­ Vadodara Municipal Corporation submitted that the Town Planning Officer cannot take into consideration the objections raised by the petitioner as it pertains to the ownership of the land in question, whereas the Town Planning Officer is required to follow the duties prescribed under Section 51 and to prescribe the contents of preliminary final scheme as per the section 52 of the Act, 1976.

9. Mr.Nanavati further submitted that the petitioner has no grievance with regard to the decision taken by the Town Planning Officer under section 52(3) of the Act, 1976 but the only grievance of the petitioner is regarding not considering the name of the petitioner as one of the owner of the land in question and therefore, the petition is not maintainable under the provisions of the Act, 1976.

10. Mr.Gandhi in rejoinder submitted that Mr.Nanavati is not correct in stating that the Town Planning Officer has no right to consider the disputed ownership and he referred to the provision of section 46 of the Act,1976.

11. Having considered the rival submissions and Page 5 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER having gone through the materials on record, it appears that the petitioner is occupier of the land admeasuing 728.5 sq. mtrs. of survey no.292/1 situated at Harni, Vadodara City District Vadodara on the basis of the agreement to sale executed on 15.05.1991 and the Will executed on the same day i.e. 15.05.1991 by late Vikramsinh Khanderao Gaekwad. It also emerges from the record that civil suits are pending with regard to the ownership of land in question.

12. Provision of Section 51 of the Act,1976 prescribes the duties of the Town Planning officer and reads thus:­ "51. Duties of Town Planning Officer.

Within a period of twelve months from the date of his appointment, the Town Planning Officer shall, after following the prescribed procedure, sub­divide the town planning scheme into a preliminary scheme and a final scheme :

[Provided that the State Government may, from time to time, by order in writing, extend the said period by such further period or periods as may be specified in the order and any such order extending the period may be so as to have retrospective effect.]."
13. Similarly section 52 prescribes for contents of preliminary and final scheme and reads thus:­ Page 6 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER

" 52. Contents of Preliminary and final scheme­ (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;

(ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;

(iii) 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 the provisions of section 81;

(iv) determine the period within which the works provided in the scheme shall be completed by the appropriate authority."

Explanation :­

(i) For the purpose of this proviso "variation of a substantial nature"

means a variation which is estimated by the Town Planning Officer to involve an increase of ten percent in the costs of the scheme as is described in section 77 on account of the provisions of new works or the allotment of additional sites for public purposes included in Page 7 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER the preliminary scheme drawn up by the Town Planning Officer.
(ii) If there is any difference of opinion between the Town Planning Officer and the appropriate authority as to whether a variation made by the Town Planning Officer is of substantial nature or not, the matter shall be referred by the appropriate authority to the State Government whose *decision thereon shall be final."

(2) 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 sub­section (3).

(3) In the final scheme, the Town Planning Officer shall,­

(i) fix the difference between the total of the values of the original plots and the total of the values of the plots included in the scheme in accordance with the provisions of clause (f) of sub­section (1) of section 77;

(ii) determine whether the areas used, allotted or reserved for a public purpose or purposes of the appropriate authority are beneficial wholly or partly to the owners or residents within the area of the scheme;

(iii) estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners Page 8 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER or residents within the area of the scheme and partly to the general public, which shall be included in the costs of the scheme;

(iv) calculate the contribution to be levied under sub­section (1) of section 79, on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public;

(v) determine the amount of exemption, if any, from the payment of contribution that may be granted in respect of plots exclusively occupied for religious or charitable purposes;

(vi) estimate the increment to accrue in respect of each plot included in the scheme in accordance with the provisions of section 78;

(vii) calculate the proportion of the contribution to be levied on each plot in the final scheme to the increment estimated to accrue in respect of such plot under sub­ section (1) of section 79;

(viii) calculate the contribution to be levied on each plot included in the final scheme;

(ix) determine the amount to be deducted from, or added to, as the case may be, the contribution leviable from a person in accordance with the provisions of section 79;

(x) estimate with reference to claims Page 9 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER made before him, after notice has been given by him in the prescribed manner and in the prescribed form, the compensation to be paid to the owner of any property or right injuriously effected by the making of the town planning scheme in accordance with the provisions of section 82;

(xi) draw in the prescribed form the preliminary and the final scheme in accordance with the draft scheme :

Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections."
14. From above provision, it is clear that Town Planning Officer in final scheme has to prescribe as provided in sub­section (3) of section 52 of the Act, 1976. Accordingly, the Town Planning Officer after following the procedure under Rule 26 of the Rules, intimated the persons whose names are reflected in the revenue records about its decision taken under Section 52(3) as per sub­rule (9) of the Rule 26 of the Rules.
15. The petitioner is aggrieved with regard to the communication of the decision by the Town Planning Officer to the persons whose name Page 10 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER appears in the revenue records on the ground that the Town Planning Officer is required to consider the rival claims with regard to the disputes of the ownership which are reflected in the revenue records, as per the Section 46 of the Act, 1976, which reads thus:­ "46. Disputed ownership­ (1) Where there is a disputed claim to the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the appropriate authority or the Town Planning Officer at any time prior to the date on which the Town Planning Officer draws up the preliminary scheme under section 51 by such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purposes of this Act.

(2) Such decision shall not be subject to appeal but it shall not operate as a bar to a regular suit in a court of competent jurisdiction.

(3) Such decision shall, in the event of a Civil Court passing a decree which is inconsistent therewith, be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the appropriate authority by the person affected by such decree."

Page 11 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER

16. On perusal of Section 46, it is clear that, where there is a disputed claim to the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, then only the Town Planning Officer is required to make a reference as provided under Section 46 of the Act, 1976, prior to the date on which the Town Planning Officer draws up the preliminary scheme under section 51 to such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purpose of this Act.

17. In the facts of the case, it is not in dispute that the name of the petitioner is not reflected in the revenue record on the basis of the agreement to sale or the Will executed in favour of the petitioner. Therefore, the provision of Section 46 of Act,1976 will not come into play, requiring the Town Planning Officer to make an application to the Officer appointed by the State Government to make an inquiry with regard to the ownership of the land in question, more particularly, when the civil suits are pending for adjudication for the ownership of the land in question.

Page 12 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021 C/SCA/10575/2020 ORDER

18. Therefore, the Town Planning Officer is not required to give notice or intimate its final decision to the petitioner under Sub­rule (9) of Rule 26 of the Rules as the name of the petitioner is not reflected in the revenue record.

19. In such circumstances, the petition being devoid of any merit is accordingly summarily dismissed. Notice is discharged. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 13 of 13 Downloaded on : Sun Feb 28 19:45:38 IST 2021