Gujarat High Court
Yogeshbhai Babubhai Boghra vs State Of Gujarat on 8 September, 2022
C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10454 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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YOGESHBHAI BABUBHAI BOGHRA
Versus
STATE OF GUJARAT
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Appearance:
MR RS SANJANWALA, SENIOR ADVOCATE WITH DHAVAL SHAH(2354)
for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1,2
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 4
MR UI VYAS(1000) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/09/2022
ORAL JUDGMENT
1. Rule. Learned AGP Mr.Meet Thakkar for Page 1 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022
respondent nos.1 and 2, learned advocate Mr.U.I.Vyas for respondent no.3 and learned advocate Mr.Dhaval Nanavaty for respondent no.4 waive service of notice of rule.
2. The present petition is filed with the following reliefs :
"32(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ/s, order/s, direction/s directing the respondent authorities to quash the Surat Development Plan 2035 in so far as it reserves that land of the Petitioner for public purpose and this Hon'ble Court may further be pleased to issue a direction directing the Respondents to designate the same in residential zone.
(B) Without prejudice to prayer (A) above and in the alternative to prayer A, YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ/s, order/s, direction/ s directing the respondents to forthwith vary the Surat Development Plan-2035 in so far it reserves the petitioner's land for public purpose by dereserving the same and designating it for residential use.
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C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 (C) Without prejudice to the prayers above and in the alternative, YOUR LORDSHIPS may be pleased to issue as writ of mandamus or any other appropriate writ, order or directions directing the Respondent authorities to consider and decide the representation dated 27.11.2020 (Annexure-T) addressed by the Petitioner within a time period that this Your Lordships deem fit;
(D) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to restrain the respondent authorities from taking any action to enforce the reservation on land bearing block no.201/1, final plot no.117. T.P.Scheme no.10 (Pal) admeasuring 1916 sq.mtrs. And further restrain them from taking any coercive action against the Petitioner to enforce the reservation and in alternative, direct the Respondents to decide the representation dated 27.11.2020 (Annexure-T) made by the petitioner. (E) xxxxx"
3. The brief facts leading to filing of this petition, as mentioned in the memo of the petition, are as under:
3.1 The land in question was a part of land bearing revenue survey no.216/p, block no.201/1, village Pal, Taluka Choriyasi, District Surat admeasuring 10321 Page 3 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 sq.mtrs. (original land). This original land was initially owned and in possession of Ishwarbhai Amaidas and six others as an Hindu Undivided Family with Ishwarbhai being the karta.
3.2 In the year 1980, respondent no.3 published its first draft development plan for Surat and adjoining villages under the Town Planning Act and the same was submitted for sanction to the respondent no.1 under the provisions of the Town Planning Act. The respondent no.1 proposed various modifications in the draft development plan, invited and considered various suggestions and objections in respect of the proposed modifications, finalized the proposed modifications and sanctioned the draft development plan accordingly vide notification dated 31.1.1986. In the said notification on page 12 (para 26), the original land, which was initially reserved as residential zone in the draft development plan was deleted from the said use and were reserved for `Gujarat Water Supply and Sewerage Board". The sanctioned development plan came into force on 3.3.1986. 3.3 The petitioner further states that out of the Page 4 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 total land area of 10321 sq.mtrs of block no.201/1, Gujarat Water Supply and Sewerage Board took over possession of 7696 sq.mtrs from the original land and released the remaining 2625 sq.mtrs. in favour of the erstwhile owner Ishwarbhai Amaidas.
3.4 The petitioner further states that as per Section 20 of the Town Planning Act, the development plan is to be revised within ten years from it coming into force, accordingly, the respondent no.3 prepared a revised development plan in August 1997 for a period upto 2011 in which the land in question is being reserved for public purpose, inspite of the fact that an area of 2625 sq.mtr. i.e. the land in question was released in favour of the established owner. 3.5 The petitioner further states that the erstwhile owner of the land in question addressed a representation dated 9.7.1998 to the respondent no.1 clearly stating that out of the total area of 10321 sq.mtrs. of original land, the Gujarat Water Supply and Sewerage Board required only 7696 sq.mtr. and released the possession of remaining 2625 sq.mtr. in favour of the erstwhile owner, Page 5 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 which was also recorded in land revenue records. It was also stated in the representation that the sanctioned 1986 plan expired in 1996 after which the respondent no.3 prepared a revised plan in which the land of 2625 sq.mtrs. is shown in pink colour as public purpose area.
The erstwhile owner requested the respondent no.1 to rectify this error and declare the said area as residential area. It is stated that thereafter the erstwhile owner made another representation dated 19.7.2001. 3.6 It is further stated that the petitioner purchased the said land in question from the erstwhile owner by way of a registered sale deed dated 27.12.2002 and consequently, the name of the petitioner was mutated in the revenue record.
3.7 The respondent no.1 issued a notification dated 2.9.2004 finalizing the modifications in revised development plan and sanctioned the same and thus the reservation of the land for public purpose was sanctioned by the state government, without considering the representation made by the petitioners predecessors in title. It is further stated that on 14.7.2005, the Page 6 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 respondent no.1 sanctioned preliminary town planning scheme no.10(Pal) and on 19.6.2006, the respondent no.2 sanctioned the preliminary town planning scheme and on 11.8.2014, the respondent no.1 sanctioned the final town planning scheme.
3.8 It is further stated that on 9.5.2016, the respondent no.3 prepared draft development plan-2035 for Surat city and submitted it to respondent no.1 under Section 9 of the Town Planning Act. It is stated that SMC addressed a letter to respondent no.3 dated 29.9.2017 stating the said land is not acquired by the SMC and is not required for any purpose by SMC. The petitioner addressed another representation dated 6.10.2017 to the respondent nos.1 and 2 stating all these facts and requesting them to dereserve the land in question from public purpose to residential. Thereafter, a letter dated 29.12.2017, a letter was addressed by respondent no.3 to the respondent no.2 stating that as per the land records, the petitioner is the owner of the land in question and SMC does not require this land for any purpose and the state government was requested to consider the status of the land in question as residential Page 7 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 instead of public purpose at the time of final sanctioning of development plan 2035.
3.9 The petitioner states that inspite of repeated representations, the last one being of 26.12.2019, the respondent no.1, vide notifications dated 8.10.2020 and 9.11.2020 issued under Section 17(1)(c) of the Town Planning Act has given its final sanction to SDP-2035 and the said plan came into force from 8.10.2020 and the sanctioned final development plan still considers the land in question as being reserved for public purpose. It is submitted that again on 27.11.2020, the petitioner addressed a letter to the respondents authorities reiterating that despite addressing multiple representations, the respondent authorities have failed to pay heed to the grievance raised by the petitioner. 3.10 Hence, this petition is filed with the above prayers stating that since 1997 till date the land in question has not been acquired and the respondents authorities do not dispute the title and possession of the petitioner on the land in question.
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C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022
4. Heard learned senior advocate Mr.Sanjanwala assisted by learned advocate Mr.Daval Shah for the petitioner, learned AGP Mr.Meet Thakkar for respondent nos.1 and 2, learned advocate Mr.U.I.Vyas for respondent no.3 and learned advocate Mr.Dhaval Nanavaty for respondent no.4.
4.1 Learned senior advocate Mr.Sanjanwala for the petitioner submitted that though Surat Urban Development Authority (SUDA for short) as well as Surat Municipal Corporation (SMC for short) have, by their respective communications dated 30.12.2017 and 29.9.2017 respectively, conveyed that they are not in need of the said Final Plot No.117 for the public purpose and the SUDA has informed the government that the same should be placed in residential zone, inspite of that, it is reserved for public purpose. He has further submitted that in the communication dated 29.9.2017, the Deputy Commissioner, SMC has given the opinion that hydraulic department is not required the land of Final Plot No.117 and therefore the said land is not required for the public purpose. These aspects are not considered by any of the authority while finalizing the scheme and therefore he submits that the respondent no.1-vide Page 9 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 communication dated 8.10.2020 and 9.11.2020 issued under Section 17(1)(c) of the Town Planning Act has given its final sanction to Surat Development Plan-2035 (SDP-2035 for short) and the said plan came into force from 8.10.2020. Learned senior advocate further submitted that the present petitioner has made several representations but no appropriate response is received from the respondents. He has further submitted that since the year 1997, till date, the land in question has not been acquired and the respondent authority had not disputed the title and possession of the petitioner on the land in question and therefore he has submitted that in view of the Article 300A of the Constitution of India which provides that right to use property is constitutional right and reservation of land in question amounts to eternal reservation, the petitioner cannot be deprived of the use and enjoyment of the land by keeping the same in perpetual reservation and therefore he prays to pass the appropriate order as the continuous reservation of land in question for public purpose is in blatant violation of Articles 14 and 300A of the Constitution of India.
4.2 Learned senior advocate Mr.Sanjanwala has Page 10 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 further relied on the provision of Section 20 of the Town Planning Act which expresses the intention of the Legislature not to allow reservation of land indefinitely and in perpetuity to the serious prejudice tof the land owner, particularly, in the cases where the public authority themselves accepted that they do not require the land. Therefore, in the present case also, appropriate writ may be issued by directing the authority to place Final Plot No.117 for the residential purpose instead of the public purpose which is in the SDP-2035. In the alternative, he submits that the respondent authority may be directed by this Court to vary the scheme by placing the plot in the residential purpose from the existing public purpose shown in the SDP-2035 by following necessary procedure. He has relied on the judgment of the Hon'ble Apex Court in the case of Bhikhubhai Vithalbhai Patel and others V/s State of Gujarat and another, reported in 2008(4) SCC 144 and more particularly, paragraph 37 of the judgment and therefore he prays to allow this petition or pass appropriate order considering his submissions.
5. Per Contra, learned AGP Mr.Meet Thakkar for Page 11 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 respondent nos.1 and 2, learned advocate Mr.Udayan Vyas for respondent no.3-SUDA and learned advocate Mr.Dhaval Nanavaty for respondent no.4 have submitted that the respondents authorities have acquired the land and now since the Town Planning Scheme is final, at the most, the present petitioner can apply for variation under Section 70 of the Town Planning Act before the Corporation and if Corporation thinks it fit, proposal can be prepared as per the provisions of the Act and Rules and can be forwarded to the state government and then the state government can consider the said proposal for variation.
5.1 Learned AGP Mr.Thakkar for the state government has relied on the judgment in the case of Babubhai Kurjibhai Radadiya V/s Surat Municipal Corporation reported in 2011(0) AIJEL-HC 225776, more particularly, paragraphs 8 to 14 and in the case of Navinbhai Ramubhai Patel since deceased through legal heir V/s State of Gujarat reported in 2015(0) AIJEL-HC 234357, more particularly, paragraphs 3 to 5 and submitted that the authority has not committed any error as the authority has not violated the procedure Page 12 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 issued under Section 20 of the Act and the Act empowers the authority to continue reservation unless the plan is revised under Section 21 or the same is varied under Section 19 of the Town Planning Act. Further, he has submitted that under Section 20(2) of the Act, the land holder is always at liberty to raise the objection or serve the notice upon the authority against the continuation of reservation and therefore all the respondents authorities have submitted that looking to the legal position, this Court may not interfere with by exercising powers under Section 226. At the most, the petitioner may be directed to make appropriate representation available under the law.
6. Learned advocate Mr.Dhaval Nanavaty for the Corporation has submitted that he is not in a position to dispute the communication dated 29.9.2017 of the SMC and learned advocate Mr.Udayan Vyas also submitted that he is not disputing the communication dated 30.12.2017 issued by SUDA. They have also supported the submissions made by learned AGP Mr.Meet Thakkar.
7. I have heard learned advocates for the parties, Page 13 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 perused the averments made in the pleadings and gone through the material placed on record, more particularly, the communication of the Deputy Commissioner of the SMC dated 29.9.2017 and the communication dated 30.12.2017 of the Chief Executive Officer of SUDA, where both the authorities have categorically stated that the land is not required for the public purpose. In fact, SUDA in the communication dated 30.12.2017 recommended that the land of Final Plot No.117 of T.P.Scheme no.10(Pal) may be converted from the public purpose to residential zone. It is not in dispute that the petitioner has made several representations till the year 2021 agitating his grievance about the continuation of final plot no.117 for public purpose in SDP-2035.
8. At this stage, it is relevant to look into the provision of Section 20 of the Town Planning Act which reads as under:
"20. Acquisition of land : [(1)] The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of section 12, may Page 14 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 acquire the land, -
(a) by an agreement, or ;
(b) in lieu of any development right by granting the owner against the area of land surrendered free of cost and free from all encumbrances.
(c) under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013]
2. If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed."
9. It is also required to consider the judgment relied on by learned senior advocate for the petitioner in case of Bhikhubhai Vithalbhai Patel and others (supra), of which paragraph 37 which reads as under: Page 15 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022
C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 "37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion which is a condition precedent for the use of power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgment of the right to property. Statutory provisions enabling the land are required to be construed strictly. The legislature has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise pf power. Section 17 and more particularly the proviso to Section 17(1)(a)(ii) prescribes some of the conditions precedent for the exercise of power. The order proposing to make substantial modifications, in breach of any one of those conditions, will undoubtedly be void. On a successful showing the order proposing substantial modifications and designating the land of the appellants for educational use under Section 12(2)(o) of the Act has been made without the State Government applying its mind to the aspect of necessity or without forming an honest opinion on that aspect, it will, we have no doubt, be void."
10. It is profitable to refer to the judgment of Division Bench of this Court rendered in Letters Patent Page 16 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 Appeal No.87 of 2011 dated 16.3.2016, more particularly, paragraph 26 thereof, which reads as under:
"26. The perusal of Sections 70 and 71 of the Act, 1976 to which reference is made in earlier paragraph makes it clear that the power is no doubt conferred upon the appropriate authority of the State Government to vary scheme on three grounds namely, error, irregularity or informality. However, conditions prescribed in the Section for invocation of such powers to be exercised by the State Government upon preliminary scheme will come into force only when the appropriate authority considers that scheme is defective on the above three grounds, an application to be preferred to the State Government for variation of the scheme. In the present case no application whatsoever was made by appropriate authority in writing to the State Government for variation of the scheme. So far as the Section 70A is concerned, it is only for the land alloted for public purpose and therefore, the same is not applicable. However, at no point of time any such contention was raised and that in exceptional circumstances when a Town Planning Scheme may be varied at any time by subsequent scheme was published and sanctioned in accordance with the provisions of the Act, Page 17 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 the appropriate Government upon large public interest can look into it. However, such variation cannot be claimed as a matter of right. In this regard decision relied on by Mr.Desai, learned senior counsel for the respondents in the case of Babulal Badriprasad Varma (supra) and Kashiben (supra) are applicable."
11. The petitioner is admittedly in possession of the land in question since 1997 and the possession of the land is not acquired by any of the respondents till the date of the petition. It also transpires that under Section 20(2) of the Act, the land holder is always at liberty to raise objection or to serve notice upon the authority against the continuation of reservation. In the present case, when both the authorities, SUDA as well as SMC in their respective communications dated 30.12.2017 and 29.9.2017, have categorically opined that the land is not required for the public purpose and also recommended that it can be permitted to be used for residential purpose by putting the land in residential zone, this petition requires consideration.
12. Considering the above aspect of the matter and Page 18 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022 considering that right to use property is a constitutional right Article 300A of the Constitution of India, the following order will serve the purpose to do substantive and equitable justice to the petitioner:
(1) The petitioner shall make necessary application/representation before the SMC for preparing necessary proposal within a week from today (2) On receipt of such application/representation, the SMC will prepare necessary proposal in accordance with law and Rules under the Town Planning Act for variation and send it to the state government within three weeks thereafter (3) On receipt of such proposal from SMC, the state government authorities-respondent nos.1 and 2 shall consider such proposal for variation within four weeks thereafter, keeping in view the opinion given by SUDA dated 30.12.2017 and the SMC dated 29.9.2017 and other material available on record and decide the said variation as expeditiously as possible, but not later than four weeks from the date of receipt of such proposal. Page 19 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022 C/SCA/10454/2021 JUDGMENT DATED: 08/09/2022
13. This petition is allowed to the aforesaid extent with the above directions and no further prayer of the petitioner can be granted at this stage. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 20 of 20 Downloaded on : Thu Sep 15 20:26:56 IST 2022