Gujarat High Court
Jaydevbhai vs State on 1 March, 2012
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
Print
LPA/2678/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2678 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8366 of 2010
=========================================================
JAYDEVBHAI
NATVARBHAI PATEL & 3 - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 4 - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Appellant(s) : 1 - 4.MR PP MAJMUDAR for Appellant(s) : 1 - 4.
MR
NJ SHAH, AGP for Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for
Respondent(s) : 2,4 - 5.
MR PRASHANT G.DESAI ASSISTED BY MR
KAUSHAL D PANDYA for Respondent(s) : 3,
MR BC DAVE for
Respondent(s) : 4,
MR UI VYAS for Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE A.J. DESAI
Date
: 01/03/2012
ORAL
ORDER (Per : HONOURABLE MR.JUSTICE V. M.
SAHAI)
1. We have heard learned counsel Mr.P.P.Majmudar for the appellants, learned AGP Mr.N.J.Shah for the respondents No.1 and 2, learned counsel Mr.Prashant G.Desai assisted by learned advocate Mr.Kaushal Pandya for the respondent No.3, learned advocate Mr.B.C.Dave for the respondent No.4 and learned advocate Mr.U.I.Vyas for the respondent No.5.
2. This Letters Patent Appeal has been filed challenging the order dated 10.08.2010 passed by the learned Single Judge in Special Civil Application No.8366 of 2010.
3. In the writ petition the petitioner has challenged the preliminary scheme which has been finalised by the State Government. The argument of the learned counsel for the appellants is that Rule 26 of the Gujarat Town Planning and Rules, 1979 has not been complied. The learned Single Judge has dealt with the question and has recorded cogent reasons for dismissing the writ petition. The reasons given by the learned Single Judge is extracted below:
"23.
At the outset, it is required to be noted that earlier the very petitioners had preferred Special Civil Application No. 4408 of 2010 before this Court challenging the Preliminary Town Planning Scheme, however, the same came to be withdrawn by the petitioners with a view to make a fresh representation to the respondent - Surat Municipal Corporation for variation of the Town Planning Scheme No.26, and therefore, as such, the present petition challenging the Preliminary Town Planning Scheme sanctioned by the State Government in the year 2008 vide Notification dtd.20/5/2008 would not be maintainable, as earlier the petitioners challenged the same by way of the aforesaid Special Civil Application which came to be withdrawn by them only with a view to make a fresh representation to the Surat Municipal Corporation for variation. As stated above, Mr.Majmudar, learned advocate appearing on behalf of the petitioners has submitted that though the petitioners have prayed for variation of the Preliminary Town Planning Scheme No. 26 (Singanpore), they are pressing the present petition QUA challenge to the Town Planning Scheme sanctioned by the State Government only, meaning thereby the petitioners are not interested in variation of the Preliminary Town Planning Scheme, for which they withdrew the aforesaid Special Civil Application.
24. Even otherwise, on merits also the petitioners have no case. It is to be noted that the Preliminary Town Planning Scheme No. 26 (Singanpore) suggested by the Town Planning Officer has been sanctioned by the State Government in exercise of the powers under sec.65 of the Town Planning Act and after the Preliminary Town Planning Scheme has been sanctioned by the State Government, the same has become part of the Town Planning Act by virtue of sec.65 of the act and therefore, in view of sec.102 and orders passed by this Court as well as the Hon'ble Supreme Court, present petition is not maintainable.
25. Assuming that the present petition is maintainable, in that case also on merits the petitioners have no case. At the outset, it is required to be noted that so far as the petitioners are concerned, their lands and the plots on which they are having their residential houses, are not on the land forming part of the Town Planning Scheme, as they are residing in Gamtal area for which there is no Preliminary Town Planning Scheme No. 26 (Singanpore) and the residential houses of the petitioners are not falling within the Town Planning Scheme No. 26 (Singanpore) and their houses are outside the Preliminary Town Planning Scheme No. 26 (Singanpore), which has been challenged by them. The lands of the petitioners are adjacent to the lands falling under the Preliminary Town Planning Scheme No. 26 (Singanpore) and therefore, they are not required to be heard while preparing and/or sanctioning the Preliminary Town Planning Scheme No. 26 (Singanpore) and therefore, they are not required to be issued and served any individual notices in prescribed form as required under Rule 26, as notices as required under Rule 26 is required to be issued and served only upon those persons whose lands fall in the Preliminary Town Planning Scheme No. 26 (Singanpore) and those who are likely to be affected by the reconstitution of the plots etc. Therefore, the contention on behalf of the petitioners that as they are not served with the individual notices in prescribed form as required under Rule 26 of the Rules and therefore, the Preliminary Town Planning Scheme No. 26 (Singanpore) deserves to be quashed and set aside cannot be accepted. Even otherwise, it is to be noted that at every stage, either at the Draft Town Planning Scheme and sanctioning the same and thereafter preparing the Preliminary Town Planning Scheme by the Town Planning Officer and thereafter, while sanctioning the Preliminary Town Planning Scheme No. 26 (Singanpore) by the State Government at every stage public notices are always issued inviting objections from the affected persons and that is the scheme of the Town Planning Act, as discussed by this Court in the case of Kishanbhai Hargovandas Patel & Another (supra). Nothing is on record that at any point of time, the petitioners have submitted any objection at the time of publishing the Preliminary Town Planning Scheme and thereafter, sanctioned by the State Government. It appears that the petitioners have raised objections for the first time after the Preliminary Town Planning Scheme came to be sanctioned by the State Government under sec.65 of the Town Planning Act. Therefore, any objection raised after the Preliminary Town Planning Scheme came to be sanctioned by the State Government under section 65 of the Town Planning Act, cannot be considered, as once the State Government grants sanction under section 65 of the Town Planning Act, the Preliminary Town Planning Scheme has become final and part of the Act, which is not subject to challenge.
26. Now, so far as the reliance placed upon the decision of this Court in the case of Kishanbhai Hargovandas Patel & Another (supra) is concerned, the same shall not be applicable in the facts of the present case. In the aforesaid case before this Court the State Government sanctioned Preliminary Town Planning Scheme which was not suggested by the Town Planning Officer and in place of Plot No.A suggested by the Town Planning Officer under the Proposed Preliminary Town Planning Scheme, State Government sanctioned Preliminary Town Planning Scheme by allotting Plot No.B, without giving any opportunity to the affected persons and to that this Court held that the same is in breach of the principles of natural justice and hearing is to be read into at that stage when the State Government proposes to sanction the Preliminary Town Planning Scheme by modifying Preliminary Town Planning Scheme suggested by the Town Planning Officer by observing that when on earlier stages right of hearing is provided and Preliminary Town Planning Scheme has been prepared by the Town Planning Officer after giving opportunity to the affected persons, thereafter if it is to be modified and/or varied by the State Government while sanctioning the Preliminary Town Planning Scheme, at that stage also hearing is required to be given to the persons who are likely affected by such modification and/or variation. In the present case, that is not the situation. In the present case, the Town Planning Officer, while preparing the Preliminary Town Planning Scheme, prepared the scheme and made reconstitution of the plots in such a manner that road which was provided under the Draft Town Planning Scheme was not provided while preparing the Preliminary Town Planning Scheme and it was sent to the State Government and the State Government sanctioned the same as it is i.e. as suggested by the Town Planning Officer. It is to be noted that under the Scheme of the Town Planning Act, after the Draft Town Planning Scheme is sanctioned by the State Government, Town Planning Officer is required to prepare Preliminary Town Planning Scheme after inviting objections and suggestions from the affected persons and in that case preparing the Preliminary Town Planning Scheme and on reconstitution of the plots, the same may not be as it has been provided under the Draft Town Planning Scheme. Under the Draft Town Planning Scheme one road was provided between going towards East-West direction from Survey Nos.14 and 24 and Survey No.12 situated at village Singanpore, which has not been provided while preparing Preliminary Town Planning Scheme by the Town Planning Officer, which came to be sanctioned by the State Government, subsequently, it cannot be said that any illegality has been committed by the Town Planning Officer and/or the State Government while sanctioning the Preliminary Town Planning Scheme No.26 (Singanpore).
27. It is also required to be noted that it is not that the petitioners have no other access available to approach Gamtal. There is a road available to the petitioners to approach the Gamtal.
28. In view of the above and for the reasons stated above, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed.
It is to be noted and as stated above, Mr.Majmudar, learned advocate appearing on behalf of the petitioners has stated at the bar that he is challenging the Town Planning Scheme which has become final and part of the Town Planning Act. No submission has been made so far as variation of the said Town Planning Scheme is concerned and therefore, this Court has not considered the same, as the said prayer is not pressed by Mr.Majmudar, learned advocate appearing on behalf of the petitioners and present petition is restricted QUA challenge to the Preliminary Town Planning Scheme No. 26 (Singanpore) only, and as stated above, there is no substance in the same, which deserves to be dismissed and is accordingly dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs."
4. We are in agreement with the view taken by the learned Single Judge and the petitioner land is not covered by town planning scheme.
5. For the aforesaid reasons, we do not find any merits in the appeal and the appeal fails and is accordingly dismissed.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/ Top