Gujarat High Court
Harishbhai Somabhai Patel vs State Of Gujarat on 26 April, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/4159/2022 ORDER DATED: 26/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4159 of 2022
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HARISHBHAI SOMABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Petitioner(s) No. 1
MR. AYAAN PATEL, AGP, for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 26/04/2022
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioner seeking direction for quashing and setting aside the notice dated 19.01.2022 issued by the Deputy Town Planning Officer, South Zone, Ahmedabad Municipal Corporation which is issued for the purpose of removing the construction/compound wall existing on the 24 meter TP road of the Town Planning Scheme 52 (Ghodasar North). The petitioner also challenges the final order dated 02.02.2022 which was passed consequence to the notice dated 19.01.2022.
[2] It is the case of the petitioner that the petitioner is using plot in question as his residential premises and therefore, the demolition activity that may be carried out would lead to rendering the petitioner without any shelter. The petitioner is the owner and occupier of Bungalow No.17 of Sahyadri Bungalows which is located on Survey No.270/1 which was given Original Plot No.40 and Final Plot No.44/1, 44/2+101/1, 44/3+102/2 in Town Planning Scheme No.52 (Ghodasar).
Page 1 of 6 Downloaded on : Sat Dec 24 15:39:00 IST 2022C/SCA/4159/2022 ORDER DATED: 26/04/2022 [3] Learned advocate appearing for the petitioner has argued that
as per the town planing scheme, 24 meter road was proposed which was passing nearby from the petitioner's society. It is the case of the petitioner that there is a shifting of alignment of road to the extent of 15 meter, as a result of which, demolition in the petitioner's premises will take place, causing prejudiced to the petitioner. It is also submitted that on the other side of the road, there is open land which could have been made part of the road and thereby saving the construction of the petitioner. The major focus of the argument was that the petitioner had made representation for the purpose of raising objection and making suggestions in the draft development plan and therefore, as provided under Section 14 of the Gujarat Town Planning and Urban Development Act, 1976 (for short "the Act"), it is obligatory on the part of the respondent authorities to take into consideration such suggestions and objections before submitting the plan to the State Government for its sanction. It is submitted that there is nothing on record and nothing has been communicated to the petitioner as to whether suggestions and objections raised in the representation were either considered by the authorities nor have they placed on record anything to indicate that the same have been taken into consideration before sanctioning of the draft development plan or any other plan thereafter. It is therefore, submitted that the suggestions and objections of the petitioner have been completely given a go-bye.
[4] As against this, learned advocate Mr. Deep D. Vyas, appearing for the respondent-corporation has submitted that the preliminary town planning scheme has already been sanctioned by a notification dated 25.09.2012 and the town planning scheme was sanctioned only after following due process of law and there is no complaint whatsoever with regard to the non-compliance with any provisions Page 2 of 6 Downloaded on : Sat Dec 24 15:39:00 IST 2022 C/SCA/4159/2022 ORDER DATED: 26/04/2022 of the Town Planning Act. It is submitted that in fact, the town planning road has been led in such a manner so as to save residential construction of the petitioner and is only affecting the compound wall of the petitioner and therefore, the contention of the petitioner being rendered homeless is far from truth and cannot be accepted.
[5] Learned Assistant Government Pleader would referred to the order dated 25.02.2022 answering specific averments made in Ground-C with regards to the objections and suggestions of the petitioner and submitted that this contention is raised with regard to the development plan. It is submitted that even as per the operation of law, such development plan has been revised on two prior occasions and it is for the third time now the development plan will be revised and therefore, at this stage, the petitioner wants this Court to direct the authorities to consider the suggestions and objections which were made at the time when the draft town plan was sanctioned. It is submitted that thereafter also, the draft development plan has been sanctioned and therefore, at that stage the petitioner had ample opportunity to raise his objections and suggestions, which apparently the petitioner has not done.
[6] The Court has heard learned advocates for the parties and perused the documents placed on record. At the outset, part plan of the Town Planning Scheme No.52 (Ghodasar) placed at Annexure- R2, wherein the plot in question and 24 meter town planning road passing adjacent would indicate that there is no damage to the existing residential construction of the petitioner, but only part of the compound wall of the petitioner is falling on 24 meter town planning road which will demolish for the purpose of laying down of 24 meter road. Therefore the case of the petitioner that the petitioner will be rendered homeless is not an accurate contention by the petitioner.
Page 3 of 6 Downloaded on : Sat Dec 24 15:39:00 IST 2022C/SCA/4159/2022 ORDER DATED: 26/04/2022 [7] From the documents produced on record, it appears that the
AMC consulted the Chief Town Planning Officer, Gujarat State, Gandhinagar under section 41(1) of the Act, 1976 for preparing Draft Town Planning Scheme No. 52 (North Ghodasar). The Chief Town Planner, Gujarat State, Gandhinagar gave his consultation under section 41(1) of the Act on 04.11.1988. Thereafter AMC declared its intention to prepare the Draft Town Planning Scheme No.52 (North Ghodasar) on 27.01.1989, which was published in extra ordinary Government Gazette on 06.02.1989 and was also published in daily newspapers "Jayhind" and "Gujarat Samachar" on 06.02.1989. As per Rule-17 of the Gujarat Town Planning & Urban Development Rules, 1979 (hereinafter referred as "Rules") to invite suggestions and objections from the land owners affected by the proposals of the scheme. After considering the suggestions and objections so received, AMC published the Draft Town Planning Scheme No. 52 (North Ghodasar) under section 42(1) of the Act, in extra ordinary Government Gazette dated 04.08.1990 and also published the same in daily newspapers "Jansatta" and "Gujarat Samachar" on 04.08.1990.
[7.1] AMC has prepared and submitted the draft town planning scheme No.52 (North Ghodasar) to the Sate Government on 03.12.1990 for its sanction under Section 48(1) of the Act. The State Government by its Urban Development and Urban Housing Department Notification No.GH/V/69/ of 1990/TPS/497(92)/L dated 08.04.1992. Final plot No.44+102 admeasuring 42640 sq.mtr was allotted in lieu of Original Plot No.44 admeasuring 56858 sq.mtrs of Revenue Survey No.270/1+270/1+270/1/A/P+270/1/A/P. As per section 50(1) of the Act, the State Government by Urban Development & Urban Housing Department's Notification dated 21.07.1992, appointed the Town Planning Officer to finalize the Draft Town Planning Scheme No. 52 (North Ghodasar). The Town Page 4 of 6 Downloaded on : Sat Dec 24 15:39:00 IST 2022 C/SCA/4159/2022 ORDER DATED: 26/04/2022 Planning Officer entered upon his duties on 30.10.1992 and same was published in Extraordinary Government Gazette on 31.12.1992 and was published in daily newspaper "Sandesh" on 03.11.1992. Thereafter, the Town Planning Officer issued individual notice on 05.08.1993 to the said land owners for inviting objections and suggestions regarding Draft Scheme proposal, and public notices were also published in daily news papers "Prabhat" on 13.08.1999 and "Sambhav" on 23.02.2002. Thereafter, the Town Planning Officer also gave opportunity of hearing for inviting objections /suggestions at various stages before submitting the Preliminary Town Planning Scheme for its sanction to the State Government. The State Government by its Urban Development and Urban Housing Department Notification No.GH/V/184 of 2012/TPS-112011- 6096-L, dated 25.09.2012, sanctioned the preliminary town planning scheme No.52 (North Ghodasar) with modifications under Section 65 of the Act. As per the proposal of the sanctioned Preliminary Town Planning Scheme No. 52 (North Ghodasar), Final Plot No. 44./ 1 admeasuring 21149 sq. mt., Final Plot No. 44/2+101/1 admeasuring 10534 sq. mt. and Final Plot No. 44/3+101/2 admeasuring 2626 sq.mtr., total admeasuring 34309 sq.mtr. were allotted in lieu of Original Plot No. 44 admeasuring 38375 sq.mt.of Revenue Survey No. 270/1+270/2/1+270/1/A. The Town Planning Officer prepared the Final Town Planning Scheme No.52 (North Ghodasar) and published the same under section 52(3) of the Act. The decisions of final scheme were declared on 14.09.2018.
[7.3] Thereafter the State Government sanctioned the Final Town Planning Scheme No. 52 (North Ghodasar) under Government's Urban Development & Urban Housing Department's Notification No. GH/V/232 of 2020/TPS-112020-3954-L, dated 31.12.2020. The grievance of the petitioner is that the representation dated 01.11.2001 was not considered by the authorities. In this context, Page 5 of 6 Downloaded on : Sat Dec 24 15:39:00 IST 2022 C/SCA/4159/2022 ORDER DATED: 26/04/2022 the averments contained in ground C of the petition are misconceived as the same pertain to objections to the "Draft Development Plan". However, the the Draft Development Plan was already in place at this stage. In fact, as stated hereinabove, the Draft Town Planning Scheme No. 52 (North Ghodasar) itself was sanctioned on 08.04.1992. Thereafter, Town ‚Planning Officer was appointed to finalize the Draft Town Planning Scheme No. 52 (North Ghodasar) under section 50(1) by Government of Gujarat. Town Planning Officer followed all the prescribed provisions of the Act and all the procedures laid down in the Rules and submitted the Preliminary and Final scheme for sanction on 03.12.2011 and 25.11.2020 respectively, which ultimately came to be sanctioned on 25.09.2012 and it becomes part of the Act.
[8] In so far as the submission of realignment of the road to avoid taking of the land of the other side the court finds no substance in this argument firstly as nothing is brought on record to substantiate such claim moreover while the scheme was being framed and stage wise statutory notices were being published neither the petitioner nor the other affected persons have raised any grievance in this regards before the town planning officer.
[9] Therefore, considering the totality of the facts and in particular that only the co,pound wall of the petitioner is affected by the laying of the TP Road no case is made out to interfere in this case at the stage when the TP Scheme is now final.
[8] In view of the aforesaid, no case is made out for interference with the execution of the town planning scheme. The petition therefore deserves to be and is hereby dismissed.
(A.Y. KOGJE, J) SIDDHARTH Page 6 of 6 Downloaded on : Sat Dec 24 15:39:00 IST 2022